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2021-08-16 Development Agreement/Conditional Use Agreement3 cr RETURN TO: Erin Carlson 313 Washington Ave S #1119 Minneapolis, MN 55415 Doc. No. A1480445 OFFICE OF THE COUNTY RECORDER WRIGHT COUNTY, MINNESOTA Certified Filed and/or Recorded on August 17, 2021 10:36 AM Fee: $48.00 Tanya West, County Recorder CITY OF ALBERTVILLE DEVELOPMENT AGREEMENT/ CONDITIONAL USE AGREEMENT AVA ADDITION THIS AGREEMENT entered into this (�4 day g of August, 2021 by and between Advanced Volumetric Alliance, LLC,. a Minnesota Limited Liability Company, a Minnesota Corporation and Darkenwald Holdings, Ltd., collectively referred to herein as "Developer"; and the CITY OF ALBERTVILLE, County of Wright, State of Minnesota, hereinafter referred to as "City"; W!ITNESSETH: WHEREAS, Developer is the fee owner of the real property described in the attached Exhibit k 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 "AVA Addition" and shall hereinafter be referred to in its entirety as "Said Plat" or "Subject Property," the final plat of which is attached as Exhibit B'; and WiIIEREAS, Developer has received final plat approval for one numbered lot and three ioutlots within Said Plat; 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 Said Plat and the conditions imposed thereon; and WHEREAS, Developer requires a Conditional Use Permit ("CUP") for its planned outdoor storage and a CUP for outdoor display on Lot 1, Block 1 of Said Plat; and 11 WHEREAS, the City has given final approval of Said Plat contingent upon compliance with certain City requirements including, but not limited to, matters set forth herein; and WHEREAS, the City requires that certain public improvements including, but not limited to bituminous street, curb and gutter, grading, sanitary sewer, municipal water, and storm sewer be installed to serve Said Plat and other properties affected by the development of Developer's land, to be installed and financed by Developer; and WHEREAS, the City further requires that certain other 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 lots, drainage swales, berming, street signs, street lights, street cleanup during project development, erosion control, and other site -related items; and NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in consideration of each party's promises and considerations herein set forth, as follows: 1. Plat Approval. Said Plat is hereby approved, subject to the following conditions: A. Developer agrees that all buildings on said Lot 1 shall be constructed in the locations shown on the Plans and Specifications for AVA Addition, as prepared by Landform dated August 9, 2021 attached as Exhibit C unless otherwise approved by motion of the City Council. B. Developer shall construct the number of parking stalls in the locations and dimensions to the east of the proposed building located on said Lot 1 as shown on the attached Exhibit C. In the event the City determines that more parking is required for the proper operation of the use located on Lot 1, the City may require, and developer shall construct, additional parking in an amount required by the City in the location shown to the west of the proposed building located on said Lot 1 as shown on the attached Exhibit C C. The uses on all lots of Said Plat shall comply with the City's zoning code and applicable state law at all times. D. Developer shall develop Said Plat consistent with the Plans and Specifications for AVA Addition, as prepared by Landform dated August 95 2021 attached as Exhibit C. The Developer shall comply with all site plan approvals set by the City Council except where specifically set out in this Agreement. 2 E. All grading, drainage, utility, and transportation issues that arise during development of Said Plat shall be subject to review and approval by the City Engineer. F. Trees, shrubs, berms and screening are to be planted and installed by Developer at Developer's expense as shown on the Plans and Specifications for AVA Addition, as prepared by Landform dated August 9, 2021 attached as Exhibit C. Developer shall install landscaping shown on Exhibit C by October 31, 2022. The Developer shall guarantee that all new trees shall survive for two full years from the time the planting has been completed or will be replaced at the expense of the Developer. G. Developer shall maintain the storm sewer system and ponds located on Said Plat (except the ponds located on Outlot A, which shall be maintained by the City). Developer shall not modify nor obstruct said storm sewer system or ponds without the express written consent of the City. H. The City shall reasonably maintain the sanitary sewer lines and municipal water lines and fire hydrants located within publicly dedicated utility easements on Said Plat. In the event it is necessary for the City to excavate any portion of the easement area to maintain, repair or replace any such lines, the City shall be obligated to restore the easement area to grade with gravel and the owner of the property shall be responsible for replacing pavement and any improvements above grade. Nothing in this Agreement shall act to limit the City's ability to finance such improvements in accordance with applicable law including Minn. Stat. Chapter 429. The City shall have full responsibility to restore pavement within the dedicated City streets on Said Plat in the event the City excavates any portion of the street to maintain, repair or replace such lines located within the street right of way. I. Street Improvements. i. Karmen Avenue shall be constructed at Developer's sole expense from the current end of 67th Street to the north access drive of said Lot 1 where a temporary cul-de-sac shall be constructed. Said construction shall be performed according to the Plans and Specifications for AVA Addition, as prepared by Landform dated August 9, 2021 attached as Exhibit C. All such work on Karmen Avenue shall be completed no later than October 31, 2022. Developer acknowledges that Karmen Avenue's access to 701 Street will be restricted to a right -in, right -out only in the future, and Developer waives any right to 3 make any claim of damages against the City of Albertville or Wright County as a result of such change of access. All such construction shall be at Developer's sole expense. 11. The City's subdivision ordinance requires the Developer to construct Kadler Avenue as a paved street along the entire length of Said Plat. The City and Developer contemplate that the City will provide Tax Increment Financing ("TIF") assistance to Developer that Developer could use to pay the cost of constructing Kadler Avenue. Construction of Kadler Avenue shall be consistent with the Plans and Specifications for AVA Addition, as prepared by Landform dated August 9, 2021 attached as Exhibit C and shall occur upon the earlier of: 1) October 31, 2023 or 2) such time as regular production of prefabricated housing units begins in the facility to be constructed on said Lot 1, Block 1 of Said Plat. All such construction of Kadler Avenue shall be at Developer's sole expense. 111. Prior to the construction of Kadler Avenue as a paved street as contemplated by this Agreement, Developer shall use Kadler Avenue for construction of the building on Lot 1, Block 1 of Said Plat, including transporting materials and equipment into the building prior to startup from Said Plat. Upon the construction of Kadler Avenue as a paved street, Developer shall establish at least one driveway entrance from Kadler Avenue to Developer's parking lot on said Lot 1 and all trucks leaving said Lot 1 loaded with portions of prefabricated housing units shall exit said Lot 1 using Kadler Avenue. Developer shall employ good faith efforts to require its suppliers to deliver materials and supplies that are transported on trucks longer than 30 feet in length via Kadler Avenue and not via 67th Street except when Kadler is not available for use due to construction or maintenance. Prior to construction of Kadler Avenue as a paved street but after Developer begins using Kadler Avenue for construction on Said Plat, Developer shall maintain Kadler Avenue in manner similar to its condition immediately prior to such use by Developer. Upon request by the City, the Developer shall, within five business days regrade Kadler Avenue and install more class 5 gravel where necessary to maintain a smooth and safe road surface. 51 J. Trucks leaving said Lot 1 loaded with portions of prefabricated buildings shall not leave the site between the following hours: No prefabricated buildings shall leave said Lot 1 during the hours of 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m., Monday through Friday. Within the City of Albertville, Developer shall use only Kadler Avenue, 70th Street, County Highways, State Highways or Federal Highways when transporting portions of prefabricated buildings from said Lot 1, unless Kadler Avenue is unavailable due to construction or maintenance, in which case 671 Street may be used. K. No building permits shall be issued for any building on Outlot C of Said Plat until such outlot is replatted as a numbered lot and block compliant with the Albertville Subdivision and Zoning Codes. L. The ditches located on Outlots A and C of Said Plat shall be cleaned and graded by Developer at Developer's expense to a minimum standard of a four -foot bottom with 3-to-1 side slopes, said cleaning to be completed by October 31, 2022. M. All existing field approaches from 70th Street shall be removed by Developer at such time as Karmen Avenue is extended to 70th Street. Prior to such extension, such field approaches shall be used only for agricultural purposes. N. All private utilities installed on Karmen Avenue shall be installed underground in a j o int trench. O. Developer shall install outdoor lighting in accordance with the Plans and Specifications for AVA Addition, as prepared by Landform dated August 99 2021 attached as Exhibit C. 2. Conditional Use Permit for Outdoor Storage. Developer is granted a Conditional Use Permit for outdoor storage of finished prefabricated building units, subject to the following limitations: A. The Developer may store finished prefabricated building units only in those areas marked "outdoor storage areas" on the attached Exhibit D. All such storage areas shall be constructed of a durable impervious surface such as gravel or pavement that properly drains. B. A security fence shall be installed as shown on the attached Exhibit D. 5 C. The width of the screening/buffer yard alongside the single-family home in the southwest corner of the site shall be 20 feet. D. The Developer shall store snow plowed from the parking lot of said Lot 1 in the locations shown on the attached Exhibit E. E. Only finished prefabricated building units may be stored in the approved outdoor storage area. 3. Conditional Use Permit for Outdoor Display. Developer is granted a Conditional Use Permit for outdoor display of model finished prefabricated building units on said Lot 1 in that area east of the proposed building as shown on the site plan attached as Exhibit F, subject to the following limitations: A. Outdoor display activities shall be specifically limited to the boundaries of the four display areas depicted on the site plan attached as Exhibit F. B. The surfacing material of the outdoor display area shall be constructed of a durable impervious surface such as gravel or pavement that properly drains. C. Only model finished prefabricated building units may be stored in the approved outdoor display areas. 4. Construction of Municipal Improvements. A. The Developer shall construct those municipal improvements located on and off Said Plat as detailed in the Plans and Specifications for AVA Addition, as prepared by Landform dated August 9, 2021 attached as Exhibit C, said improvements to include installation of water main, sanitary sewer main, storm water treatment ponds, street lights, curb and gutter located within the street right of way, storm sewer located in the street right of way and storm sewers draining from the street to the storm water treatment ponds, Karmen Avenue as set forth in paragraph 1.I.1. of this Agreement, ditch cleaning as required by paragraph LL of this Agreement and street signs to be of such type and to be installed at such locations as required by the City Engineer and in conformance with the Manual on Uniform Traffic Control Devices (collectively, the "Municipal Improvements"). All the Municipal Improvements shall be constructed according to the standards adopted by the City, along with all items required by the City Engineer. Unless the City Engineer specifies a later date, said improvements shall be installed by October 31, 2022, except the construction of Kadler Avenue as set forth in Paragraph 1.I.ii, which shall be completed by October 31, 2023. B. The Developer shall provide the City with record drawings for all Municipal Improvements, consistent with City requirements and subject to review and approval of the City Engineer. Record drawings shall be certified by a registered land surveyor or engineer that all ponds, swales, emergency overflows, and Municipal Improvements have been constructed on public easements. Such record drawings shall be provided in paper and/or electronic formats as required by the City Engineer and shall meet all applicable State requirements for such drawings. C. 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 Municipal 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. D. Developer shall provide the City with lien waivers from all contractors and subcontractors engaged to construct said Municipal Improvements on Said Plat. Should Developer fail to provide the City with all applicable lien waivers, the City reserves the right to draw upon Developer's surety and pay any contractors who performed work on any Municipal Improvements and whom Developer has failed to fully pay for the performance of said work. E. 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 reasonable costs incurred by the City during said inspections. F. The Developer shall be responsible, at Developer's expense, for plowing snow from all streets in Said Plat that do not have wear course installed. Such plowing shall be done in a manner and on a timeline consistent with the way the City plows its other residential streets. Developer shall be responsible for repairing all damage which occurs to streets and utilities as a result of snow plowing when such streets do not have the wear course of bituminous installed. 5. Construction of Private Improvements. 7 A. Developer shall construct all on- and off -site improvements ("Private Improvements") including installation of storm sewer not located in the street right of way and not conveying water from the street, water main (located north and west of the building proposed to be located on said Lot 1), boulevards, street signs, traffic signs, yard top soil, sod and seed in all yards, grading control per lot, bituminous or concrete driveways and parking lots, and like items as necessary, street cleanup during project development, and erosion control, all as required by City ordinance. All yard areas shall be sodded with grass or landscaped in accordance with the attached Landscaping Plan. In all cases permanent turf or grass must be established over all areas of the lot not covered by a hard or impervious surface. Erosion control, drainage swales and berming, shall be installed upon initial grading of Said Plat. The grading of Said Plat shall be performed in accordance with the Plans and Specifications for AVA Addition, as prepared by Landform dated August 9, 2021 attached as Exhibit C. B . Developer shall, at its own expense, cause electrical, gas and communications utilities to be installed within Said Plat, including from 70' Street to the existing 671 Street within the Karmen Avenue right of way, all such items to be installed underground in a common trench, within the street right of way or such other location as may be approved by the City Engineer, and in compliance with all applicable state and local regulations. In addition, the Developer shall, at its own expense, cause street lights and street signs to be of such type and to be installed at such locations as required by the City Engineer and in conformance with the Manual on Uniform Traffic Control Devices. C. Developer agrees to have all utilities installed at its expense according to Plans and Specifications for AVA Addition, as prepared by Landform dated August 9, 2021 attached as Exhibit C. E. Notwithstanding the requirements of subparagraph 3A above, the Developer shall install to the City's satisfaction said Private Improvements for said Lot 1 prior to the date that a certificate of occupancy (temporary or permanent) is issued by the City for a building located on the Lot, unless the certificate of occupancy is issued after October 1 st and before March 3 Oth in any given year, in which case a certificate of occupancy shall be issued if all Private Improvements except landscaping and sod have been installed. In such cases, the owner of the lot shall cause the required landscaping and sod to be installed by the first June 301 following the issuance of the occupancy permit. 0 6. 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 $2,040,045.00, representing the sum of 100% of the estimated cost of the Municipal Improvements ($1,057,520.00), 50% of the cost of selected Private Improvements, ($926,815.00), $1,500 per acre for erosion and sediment control over 27 acres ($42,990.00), and 150% of the estimated cost for landscaping/screening materials ($12,720.00). Said letter of credit or surety must meet the approval of the City attorney as to form and issuing bank (the issuing bank must be an FDIC insured bank located within 100 miles of the City of Albertville) and must be available in its entirety to fulfill the obligations of the Developer under this Agreement. The letter of credit to the City shall contain language requiring its automatic renewal prior to December 31 of each calendar year unless the issuer of the letter of credit provides written notice to the City at least 45 days prior to the expiration of the letter of credit of the issuer's intent not to renew the letter of credit. Developer agrees that none of the lots or outlots on Said Plat may be replatted nor shall a building permit be issued for any such lot until said letter of credit is provided to the City. B. The City may draw on said letter of credit or surety to complete work not performed by Developer (including but not limited to Private Improvements, Municipal Improvements and Landscaping Improvements described above, erosion control, and other such measures, to pay liens on property to be dedicated to the City, to reimburse itself for costs incurred in the drafting, execution, administration or enforcement of this Agreement, to repair or correct deficiencies or other problems which occur to the Municipal Improvements during the warranty period, or to otherwise fulfill the obligations of Developer under this agreement. Said letter of credit must be maintained by Developer at all times at the level provided in paragraph 6.A above or a lesser amount authorized by the City Council pursuant to paragraph 7.B below. 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 E 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 expire or 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 its letter of credit or surety in its full amount to secure its surety position. The City shall then release the remainder 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. 7. Surety Release. A. Periodically, as payments are made by the Developer for the completion of portions of the Municipal Improvements, Private Improvements or Landscaping, and when it is reasonably prudent, the Developer may request of the City that the surety be proportionately reduced for that portion of the Municipal Improvements, Private Improvements, or Landscaping which have been fully completed and payment made W therefor. All such decisions shall be at the discretion of the City Council. The City's cost for processing reduction request(s) shall be billed to the Developer. Such cost shall be paid to the City within thirty (30) days of the date of mailing of the billing. B. 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. ii. When all or a portion of the required improvements have been installed, the letter of credit or surety may be reduced by the dollar amount attributable to that portion of 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. iii. When all or a portion of the landscaping improvements have been installed pursuant to the Plans and Specifications for AVA Addition, as prepared by Landform dated August 9, 2021 attached as Exhibit C. the letter of credit or surety may be reduced by the dollar amount attributable to that portion of such landscaping improvements installed, except the City shall retain the letter of credit or surety in the amount of 25% of the estimated Landscaping Improvement costs for two years from the time of the installation of said landscaping materials. iv. 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. C. The City shall act upon Developer's letter of credit reduction requests within 35 days of submission of a written request for reduction. The costs incurred by the City in processing any reduction request shall be billed to the Developer and paid to the City within 30 days of billing. 8. Abandonment of Project - Costs and Expenses. 11 In the event Developer should abandon the proposed development of 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 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. 9. 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 designing, approving, installing, and inspecting said 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 properties in Said Plat without objection. 10. Development Related Fees and Credits. A. 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 $2,055.00 per acre and $1,925.00 per acre respectively, upon development of said Plat. There are 28.66 acres in said Plat to which the Trunk Charges apply, which received final plat approval (said Lot 1, Kadler and Karmen Avenues, but excluding wetland and outlots). Therefore, the Sanitary Sewer and Water Trunk Line Fees for the numbered lots receiving final plat approval are $114,066.80 ($58,896.30 in sanitary sewer trunk line 12 fees calculated as $2,055.00 x 28.66 acres and $55,170.50 in water fees calculated as $1,925.00 x 28.66 acres). B. Storm Water Utility Connection Charge. Developer agrees that the City's Storm Water Utility Connection Charge Ordinance requires the Developer to pay $1,500 per acre for all acres included in said Lot 1 upon application for a building permit on said Lot 1. C. SAC and WAC Charges. Developer agrees that the City's Sewer Access Charge ("SAC") and Water Access Charge ("WAC") ordinances require the Developer to pay applicable SAC and WAC upon application for a building permit on said Lot 1. D. Administrative Fee. A fee for City administration of this project shall be paid prior to the City executing the Plat and this Agreement. Said fee shall be 3.5% of the estimated construction costs of the Municipal Improvements within the Plat. The administrative fee for this Plat is $37,013.20. 11. Erosion and Siltation Control. Developer shall implement all erosion control measures detailed in the Storm Water Pollution Prevention Plan ("SWPPP") and on the Grading and Drainage Plan (including construction of all temporary and permanent ponds) in the order required by the City Engineer. Developer shall also implement any additional erosion control measures required by the City Engineer and shall abide by all erosion control requirements contained in the Albertville Subdivision Ordinance and as required by the NPDES Construction Stormwater Permit for the project. The parties recognize that time is of the essence in controlling erosion. If the Developer does not comply with the erosion control plan and/or the requirements of the NPDES Construction Stormwater Permit, the City may take such action as it deems appropriate to control erosion, and the landowner hereby grants the City permission to enter upon the land and take such necessary erosion control actions. The City will endeavor to notify the Developer in advance of any proposed action, but failure of the City to do so will not affect the Developer's and City's rights or obligations hereunder. If the Developer does not reimburse the City for any cost the City incurred for such work within thirty (30) days, the City may draw down the letter of credit to pay any costs or may specially assess Developer's land for the costs not covered by the letter of credit. No development will be allowed and 13 no building permits will be issued unless the development is in full compliance with the erosion control requirements. 12. Drainage Requirements. Developer shall comply with all requirements set forth for drainage into any county ditch or other ditch through which water from Said Plat may drain, and shall make any necessary improvements or go through any necessary procedures to ensure compliance with any federal, state, county or city requirements, all at Developer's expense. 13. 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, 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 Said Plat. 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 Said Plat will be repaired immediately if deemed to be an emergency by the City. Developer further agrees that any damage to public property as a result of construction activity on Said Plat will be repaired within 14 days of notice to the Developer provided by the City 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 Said Plat and/or take necessary legal action to recover such costs and the Developer agrees that the City shall be entitled to attorneys fees incurred by the City as a result of such legal action. 14. Temporary Easement Rights. 14 Developer shall provide access to Said Plat at all reasonable times to the City or its representatives for purposes of inspection or to accomplish any necessary work pursuant to this Agreement. 15. 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 City, Developer, its contractors, subcontractors, materialmen, employees, agents, or third parties. 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 Subject Property. F. The Developer represents to the City that Said Plat and its related submissions (including but not limited to the grading plan, utility plan, and site plan) comply 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 Said Plat, Developer shall provide the City with evidence of good and marketable title to all of Said Plat, provided that Developer 15 shall provide an executed mortgage subordination agreement from all mortgage holders subordinating such mortgages to the terms of this Agreement. 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 obtain all required driveway, utility and other permits as required by either the City Engineer, Wright County and/or the State of Minnesota for the construction of the Municipal Improvements and the On - and Off -Site Improvements. 16. Violation of Agreement. A. In the case of default by the Developer, its successors or assigns, of any of the covenants and agreements herein contained, the City shall give Developer thirty (30) days mailed notice thereof (via certified mail with a courtesy copy sent via email), 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 attorneys 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 16A 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 16 irreparable harm or safety hazard, and the intended actions of the City to remedy said harm. C. Paragraph 16A of this Agreement shall not apply to any acts or rights of the City under paragraph 6E of this Agreement, 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. 17. Dedications to the City. A. Municipal Improvement Dedications. The Developer, upon presentation to the City of evidence of good and marketable title to Said Plat, and upon completion of all construction work and certification of completion by the City Engineer, shall dedicate all street right-of-ways and drainage and utility easements to the City. Upon acceptance of dedication, Developer shall provide to the City "As-Builts" (both in paper form and electronic form as required by the City Engineer) of all publicly dedicated streets, utilities, storm sewers, storm water ponds and other Municipal Improvements required under this Agreement. Acceptance by City of any dedication shall occur upon passage of a resolution to such effect by the City Council. B . Park Dedication, The Developer is required to pay a cash contribution of $60,000 in satisfaction of the City's park and trail dedication requirements. This charge is calculated as follows: 24 acres (Lot 1 acreage) x $2,500 per acre = $609000. C. Outlots Containing Wetlands and Wetland Buffer Areas. Upon the replatting of outlots containing wetlands and wetland buffer areas into numbered lots, such wetlands and buffer areas shall remain in an outlot and such outlot shall be dedicated to the City. 17 D. Stormwater Retention and Treatment Ponds and Basins. i. Developer shall dedicate drainage and utility easements to the City over all stormwater retention and treatment ponds and basins. Developer shall be required to maintain all such ponds (except the two ponds located on Outlot A which shall be maintained by the City), in accordance with the terms of the Stormwater Maintenance Agreement attached as Exhibit G. ii. Upon dedication to the public of the easements set forth in paragraph 17.D.i of this Agreement, the City may drain water from Kadler Avenue into said easement areas. 111. Developer shall enter into that Storm water Maintenance Agreement attached as Exhibit G and shall comply with the terms of such Agreement. 18. 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 attorneys fees. Third parties shall have no recourse against the City under this contract. 19. 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. 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 fees include V 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. 23. Int 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. ration Clause, Modification by Written Agreement On 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. 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 Advanced Volumetric Alliance, LLC Attn: Casey Darkenwald 7 5 3 5 River Road NE Otsego, MN 55330 Email: Casey@darkenwaldcorp.com 25. Agreement Effect. This Agreement shall be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. 19 CITY OF ALBERTVILLE Its Mayor Its Clerk ADVANCED VOLUMETRIC ALLIANCE, LLC By: Casey Its: President By: Casey D. Its: President STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) OLDINGS, LTD. kenwald The forego'ng instrument was acknowledged before me this LIC 4 day of A , 2021, by Jillian Hendrickson 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. 20 Notary Public, ST to of Minnesota My Commission Expires ary 31, 2025 Janu STATE OF MINNESOTA ) )ss. COUNTY OF WRIGHT ) Notary Public MICHAEL C. COURI Notary Public, State of Minnesot a Commission Expires M 0 yJanuary 31, 2025 .„off The rego11 ing ' strument was acknowledged before me this day of 20215 by Kris Luedke, as Clerk of the City of Albertville, a Nfiiinesota municipal corporation, on behalf of the city and pursuant to the authority of the City Council. «.r,. MICHAEL C. COURI Notary Public, State of Minnesota My Commission Expires �January 31, 2025 STATE OF MINNESOTA ss. COUNTY OF WRIGHT Notary Public The foregoing instrument was acknowledged before me this [V� day of g g g y August, 2021, by Casey Darkenwald as President of Advanced Volumetric Alliance, LLC, a Minnesota limited liability company, on behalf of the company. ljga� ERIN ADONA CARLSON Notary Public State of MinnesotaMy Commission Expires January 31, 2025 STATE OF MINNESOTA COUNTY OF WRIGHT Notary Public The foregoing instrument was acknowledged before me this � day of g g g y August, 2021, by Casey Darkenwald as President of Darkenwald Holdings, Ltd., a Minnesota corporation, on behalf of the corporation. 21 �Jobw ERIN ADONA CARLSON Notary Public State of Minnesota My Commission Expires January 31. 2025 DRAFTED BY: Couri & Ruppe Law Office P.O. Box 369 St. Michael, MN 55376 (763) 497-1930 Notary Public 22 EXHIBIT A TO DEVELOPER'S AGREEMENT The legal description of the Plat to which this Developer's Agreement applies is as follows: Lots 1 Outlots A and B and C All such property in the plat of AVA Addition, as said plat is on file in the Wright County Recorder's Office, Wright County, Minnesota. 23 a cQ L U 5 NJ I sn I I o 1 �i I I AO'BOY I I 3. I ZIEO.00N • O p t•w 00'YC01 I '►Z'bQl 'LZt 'dht�� I ''•9P►I{'M'N •w t9•MGTOOI p,61 .!000 f/ .I g ; a8 $'s m E E o I c A n E 6N E v Sod ° fi m z1 —� ---J �gcoI g a a $S a LLmF z$ • O • c=o E• � off d • WN W � Q • LL • _ C W6 • •�••••• O o o z • Q •. Z z LLI • Z rA co • < >� • J EL'Ef9i 3{i10.101 A LPLOII N�tL[0.00$ — V — '►L �4!'{LL 'd•1 'SC �•9 W Nl 'M'N a9 W •W R•3 1 1 � . I I 1 80 3¢ I •� 1 z8_ 1 - I F-- - I ., I Z1995 242 45 l N _J 1 G I •♦ L Q � - / o d _ I l0 m F&99ze1.y p0�Blabb a .l.tiB B002� I vco Oe:u80p.p0£.S£=V � L EEISI 3.i0A0.00N \ \ -- D \ 3.99ES.l1PS O �; v? y IN oi. 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WHEREAS, the Developer is the fee owner of certain real property situated in the City of Albertville, County of Wright, State of Minnesota legally described as Lot 1, Block 1, and Outlots A, B and C, AVA Addition, according to the plat on file at the Wright County Recorder's Office, Wright County, Minnesota (hereinafter referred to as the "Subject Property") which the Developer has obtained the approval of the City for the development thereof; and WHEREAS, the City has required that the Developer make provision for the construction, maintenance and repair of the Ponds (collectively "Stormwater Ponds") located within the boundaries of the Subject Property as shown on Exhibit "A" attached hereto, as the same is described and depicted in those certain Plans and Specifications for AVA Addition, as prepared by Landform dated July 1, 2021, and on file with the City Clerk ("Plans"). WHEREAS, the City and Developer desire to set forth their understanding with respect to the construction, repair and maintenance of the Stormwater Ponds and the responsibility relating to the costs of the repair and maintenance of the Stormwater Ponds. NOW THEREFORE, in consideration of the foregoing facts and circumstances, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. Construction and Maintenance of Stormwater Ponds. The Developer agrees to construct the Stormwater Ponds according to the Plans and repair and maintain the Stormwater Ponds at its sole cost and expense. Maintenance of the Stormwater Ponds shall mean (i) monthly inspections of the Stormwater Ponds and, if necessary, removal of all litter and debris, and replacement of mulch, vegetation, and eroded areas to ensure establishment of healthy functioning plant life therein; and (ii) an annual inspection, and certification, by a qualified 1 individual or company acceptable to the City that the Stormwater Ponds are functioning in accordance with the approved plans and have maintained the proper operation of the stormwater treatment as a Stormwater Ponds according to the City Standards. If, as a result of an inspection by a qualified individual or company acceptable to the City or City staff, it is determined that the Stormwater Ponds (1) have not been maintained; or (2) are not functioning as originally designed and intended; or (3) are in need of repair, the Developer agrees to restore the Stormwater Ponds so that they function as they were designed and intended. The Developer further agrees that they will not use the Stormwater Ponds for snow storage and will inform its snow removal contractors of this provision of the Agreement. Developer shall be solely responsible for the repair and maintenance of the Stormwater Ponds located on the Subject Property, including all costs to repair and maintain said Ponds. 2. Developer's Default. In the event of default by the Developer as to any of the work to be performed by it hereunder, following at least thirty (30) days prior written notice and Developer's failure to cure such default within such time -frame, except in an emergency as determined by the City, the City may, at its option, perform the work and the Developer shall within 30 days of receipt of an invoice and reasonable substantiation of such costs, reimburse the City for any reasonable out-of-pocket expense incurred by the City. This Agreement is a license for the City to act when so authorized under this Agreement, and it shall not be necessary for the City to seek a Court order for permission to enter the Subject Property. The City may, in addition to its other remedies, assess the reasonable out-of-pocket cost in whole or in part against the Subject Property, certify the costs against the Subject Property pursuant to Minn. Stat. 366.012, or take any other action authorized by law to collect such costs from Developer. 3. Terms and Conditions. This Agreement shall run with the land and shall be binding upon Developer's successors and assigns with respect to the Subject Property. The terms and conditions of this Agreement shall be binding upon, and shall insure to the benefit of, the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this document to be executed as of the day and year first above written. CITY OF ALBERTVILLE Jillian Hendrickson, Mayor Kris Luedke, City Clerk 2 Advanced Volumetric Alliance, LLC By: Casey Darkenwald Its: STATE OF MINNESOTA ) (ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged 20211 by Jillian Hendrickson and by Kris Luedke, the City of Albertville, a Minnesota municipal corporation, to the authority granted by its City Council. STATE OF MINNESOTA )ss. COUNTY OF WRIGHT before me this day of August, Mayor and City Clerk, respectively, of the on behalf of the corporation and pursuant NOTARY PUBLIC The foregoing instrument was acknowledged before me this day of August, 2021, by Casey Darkenwald, the of Advanced Volumetric Alliance, LLC. This Instrument Drafted by: Mike Couri Couri & Ruppe Law Office P.O. 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