2002-04-30 Developer's Agreement, Albert Crossing, recorded789447
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DEVELOPER'SIPLANNED UNIT DEVELOPMENT AGREEMENM
CONDITIONAL USE AGREEMENT
Albertville Crossing
THIS DEVELOPMENT AGREEMENT is entered into this k day of April,
2002 by and between Cascade II Land Co., LLC, a Minnesota limited liability company
referred to herein as "Developer"; and the CITY OF ALBERTVILLE, County of Wright,
State of Minnesota, hereinafter referred to as "City" all of which are collectively referred to
herein as "the Parties";
WITNESSETH:
WHEREAS, Clemens Properties, a Limited Partnership (a/k/a Clemens Properties, a
Minnesota Limited Partnership) ("Clemens") is the fee owner of the parcels of land
described in Exhibit A, attached hereto and incorporated herein by reference, which
parcel(s) of land are proposed to be subdivided and platted for development, and which
subdivision, which is the subject of this Agreement, is intended to bear the name
"Albertville Crossing". The real property described in Exhibit A shall hereinafter be
referred to as the "Subject Property" or "Said Plat"; and
WHEREAS, Developer is the purchaser of the Subject Property pursuant to that
certain contract for deed (the "Contract for Deed") dated December 30, 1999, by and
between Clemens, as seller, and Developer, as purchaser, which Contract for Deed was
recorded on January 8, 1999 as Document No. 666503; and
4 COMMERCIAL PARTNERS TITLE, LLC
330 SECOND AVENUE SOUTH
SUITE 920
MINNEAPOLIS, MN 55401
WHEREAS, the City has given preliminary approval of Developer's Development
Stage plan of Albertville Crossing contingent upon compliance with certain City
requirements including, but not limited to, matters set forth herein; and
WHEREAS, the first phase of the development consists of the construction of a
Coborn's grocery store anchored retail center consisting, initially, of approximately 82,335
square feet and to be constructed on a portion of the Subject Property that is legally
described as Lots 1, 2 and 3, Block 1, Albertville Crossing, Wright County, Minnesota
(collectively, the "Furst Phase Properties"); 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 (hereafter "Municipal Improvements") be installed to serve the Subject
Property and other properties affected by the development of Developer's land, to be
financed by Developer; and
WHEREAS, the City further requires that certain on- and off -site improvements be
installed by the Developer within the Subject Property, which improvements consist of
boulevards, top soil and sod, grading control per lot, bituminous or concrete driveways,
storm water ponding, municipal water, sanitary sewers, storm sewers, drainage swales,
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 agreements of
the patties concerning the development of the Subject Property;
NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY
AGREED, in consideration of each parry's promises and considerations herein set forth, as
follows:
1. Construction of Municipal Improvements.
A. The Developer has petitioned the City to construct and install the Municipal
Improvements located on and off Said Plat as detailed in the Plans and
Specifications for Albertville Crossings, as prepared by SEH, Inc., dated
April 15, 2002 and on file with the City Clerk, said improvements to
include installation of bituminous street, curb and gutter, water mains,
sanitary and storm sewers. The City may contract with one or more
contractors to install said Municipal Improvements and storm water pond
and specially assess the cost of said Municipal Improvements to Outlots A
and C of Said Plat. Developer has agreed that Outlots A and C of Said Plat
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may be assessed for 100% of the cost of said Municipal Improvements and
storm water ponding (said costs estimated to be S387,815.00), and hereby
waives the right to appeal $387,815.00 of such assessment to the Wright
County District Court pursuant to Minn. Stat. § 429.081. The City agrees
that it shall not specially assess Lots 1, 2, or 3 of Said Plat for the cost of
Municipal Improvements. All such improvements shall be constructed
according to the standards adopted by the City, along with all items
required by the City Engineer.
B. The City shall, at its option, have the City Engineer present on Said Plat for
inspection purposes at all times (or such times as the City may deem
necessary) during the construction and installation of said Municipal
Improvements. Developer agrees to pay for all costs incurred by the City
during said inspections.
2. 1nstallation of Traffic Signal.
A. Developer acknowledges that the development of Said Plat will necessitate the
installation of a 4-way stop light (red, yellow and green) system at the
intersection of Wright County Highway 19 and 57t1' Street. Developer agrees that
the City shall install said traffic signal (assuming the City orders the installation
after proper public hearing) and Developer shall pay the City one half of the cost
of the installation of said traffic signal, said cost to include all applicable
construction, engineering, legal, fiscal and administrative costs incurred by the
City. Developer and City agree that the one-half of the cost referred to in this
paragraph shall be the entire amount Developer shall be required to pay for said
traffic signal on account of all lands located east of Wright County Highway 19,
including properties located north of Said Plat. The Developer shall provide the
City with a cash escrow or letter of credit for one-half of the amount of the
estimated cost of the stoplight. Said cash escrow or letter of credit shall remain in
force until the special assessments are paid, or unless partially released pursuant
to paragraph 2.B. below.
B. The Developer and City agree that 30% of the cost of said stoplight shall be
specially assessed against Lots 1, 2 and 3 of Said Plat, provided however, that if
Developer pays said 30% of the cost of said stoplight within 30 days of billing by
the City, the City will not assess any of the cost of said stoplight to Lots 1, 2 and
3 of Said Plat, but may assess the remaining 20% of said cost to Outlots A and C
of Said Plat and to other property owned by Developer located north of 57"'
Street.
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C. The City shall not special assess Developer's lands east of Wright County
Highway 19 in an amount greater than one-half of the cost of said traffic signal.
3. Construction of On- and Off -Site Improvements.
A. Developer shall construct all on- and off -site improvements including
installation of boulevards, yard top soil, sod and seed in all lots, grading
control per lot, bituminous or concrete driveways, storm water ponding,
municipal water, sanitary sewers, storm sewers, drainage swales, private
streets, berming, and like items as necessary, street cleanup during project
development, and erosion control, all as required by City ordinance including
those items shown on the Utility Plan (attached hereto as Exhibit B) and the
Grading Plan (attached hereto as Exhibit Q. All such improvements shall be
constructed according to the plans and specifications dated February 6, 2002
and March 1, 2002 as prepared by John Oliver & Associates, Inc., and
according to the standards adopted by the City, along with all items required
by the City Engineer and/or City Planner. Unless the City Engineer specifies
a later date, said improvements shall be installed no later than October 31,
2002, with the exception of erosion control, 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 June 30, 2003.
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:
i. Electrical power supply, to be provided by Xcel Energy or other such
canter;
ii. Natural gas supply, to be provided by Reliant Energy or other such
carrier;
iii. Telephone service, to be provided by Sprint/United Telephone
Company or other such carrier;
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.
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C. Developer shall install silt fencing in back of all curbing within 30 days after said
curbing is installed, or 7 days after the "small utilities" (gas, phone, electrical and
cable television) have been installed, whichever occurs sooner. Developer shall
be allowed to substitute hay bales for a 22-foot section of silt fencing on each lot
for the purpose of allowing construction vehicles to pass from the street to each
lot. No construction vehicles shall pass from the street to the lots except through
such designated 22-foot section of hay bales. Developer shall remove all hay
bales and silt fencing from each lot as sod is installed upon said lot.
D. Notwithstanding the requirements of subparagraph 3A above, the Developer or
its successor shall install to the City's satisfaction improvements for each
respective lot or parcel prior to the date that a certificate of occupancy (temporary
or permanent) is issued by the City for a building located on such lot, unless the
certificate of occupancy is issued after October 1st and before March 30th in any
given year, in which case a certificate of occupancy shall be issued only if the
owner of the lot has entered into an escrow agreement with the City and provided
an escrow for 150% of the estimated cost of said improvements for such lot
pursuant to City Ordinance.
E. The storm water retention/water quality pond and basin to be situated on Outlot B
of Said Plat shall be maintained by the Developer. Developer shall establish
shared drainage easements for all lots which shall drain into the common pond to
be situated on Outlot B of Said Plat. Said easements must meet the approval of
the City Attorney and shall be recorded on the property records of the affected
lots. Developer shall provide the City with perpetual drainage easements over
such common pond and the City shall have the right, although not the obligation,
to maintain such common pond if the Developer fails to do so. In such event,
Developer authorizes the City to specially assess any or all numbered lots on Said
Plat for all costs incurred by the City in maintaining said ponds, and Developer
waives the right to appeal such assessment to the Wright County District Court
pursuant to Minn. Stat. § 429.081.
F. 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.
G. Upon sale of a lot in Said Plat to a third party, Cascade II Land Co., LLC's
obligation to perform the requirements of paragraphs 3.A, 3.C. and 3.D. with
respect to such sold lot shall cease, but the new owner of such lot shall remain
bound by the obligations of said paragraphs.
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H. Notwithstanding the provisions of Section 17 hereof, Developer may assign all or
any portion of its rights and obligations hereunder with respect to the First Phase
Properties to KT7 Limited Partnership Seventy -Four, a Minnesota limited
partnership.
I.
4. Surety Re uirements.
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 $522,815.00 representing the sum of 100% of
the estimated cost of the Municipal Improvements ($387,815.00),
Developer's share of the installation of the traffic signal attributable to this
plat ($112,500.00) and 25% of the estimated cost for landscaping/screening
materials ($22,500.00). Developer may provide a separate letter of credit for
the landscaping (hereafter "Landscaping L/C") in the amount listed in this
paragraph 4.A., with said Landscaping L/C to be provided prior to the
issuance of a final occupancy permit for any building on Lot 1, 2, or 3 of Said
Plat. Said letter of credit or surety must meet the approval of the City
attorney as to form and issuing bank.
B. The City may draw on said letter of credit or surety to complete work not
performed by Developer (including but not limited to on- and off -site
improvements, erosion control, and other such measures), to pay liens on
property to be dedicated to the City, to reimburse itself for costs incurred in
the drafting, execution, administration or enforcement of this Agreement, 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
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
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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, to the extent of the costs identified in this agreement.
E. That portion of said cash, irrevocable letter of credit or other surety with
respect to the performance of Site Improvements shall be released upon
certification of the City Engineer and approval of the City Council that all
such items are satisfactorily completed pursuant to this Agreement; provided,
however, except for the 25% retention provision of Section 5.13 ii hereof, the
Landscaping L/C shall be released upon certification of the City Engineer and
approval of the City Council that Developer has satisfactorily completed the
installation of all landscaping and screening materials that Developer is
obligated to construct or install upon the First Phase Properties.
F. In the event a surety referred to herein is in the form of an irrevocable letter of
credit, which by its terms may become null and void prior to the time at
which all monetary or other obligations of the Developer are paid or satisfied,
it is agreed that the Developer shall provide the City with a new letter of
credit or other surety, acceptable to the City, at least forty-five (45) days prior
to the expiration of the original letter of credit. If a new letter of credit is not
received as required above, the City may without notice to Developer declare
a default in the terms of this Agreement and thence draw in part or in total, at
the City's discretion, upon the expiring letter of credit to avoid the loss of
surety for the continued obligation. The form of any irrevocable letter of
credit or other surety must be approved by the City Attorney prior to its
issuance.
5. Surety Release.
A. Periodically, as payments are made by the Developer on the special
assessments related to the cost of the Municipal Improvements, and/or as
Landscaping Improvements are installed, and when it is reasonably prudent,
the Developer may request of the City that the surety be proportionately
reduced for that portion of the special assessments which have been paid or
the Landscaping Improvements which have been fully completed. 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.
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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 special assessments related to the
Municipal Improvements are paid or when the Landscaping
Improvements have been installed, the letter of credit or surety, or, in
the case of landscaping improvements, the Landscaping L/C may be
reduced by the dollar amount attributable to that portion of
improvements so installed or speciall assessment so paid, except that
the City shall retain a portion of the Landscaping L/C that is in the
amount of 25% of the estimated landscaping costs for two years from
the time of the installation of said landscaping materials.
iii. As to all requests brought under this paragraph B, the City Council
shall have complete discretion whether to reduce or not to reduce said
letter of credit or surety.
C. 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. Use of Proper . Developer's use of Said Plat shall be consistent with the following
restrictions, which shall be effective until further modified or amended by rezoning or
other amendment of the planned unit development/conditional use permit by the City
Council:
A. Except as otherwise set forth in this Agreement, the provisions of the City's B-2
zoning district (as amended from time to time) shall apply to Lots 2 and 3, Block
1, and Outlot B of Said Plat. The provisions of the City's B-3 zoning district (as
amended from time to time) shall apply to Lot 1, Block 1 of Said Plat.
B. Developer shall construct one building on Lot 1, Block 1 of Said Plat in
substantially the same size, shape, location and of substantially the same
materials as shown on the attached Exhibit F, and Developer shall construct all
parking and other improvements shown on said Exhibit F. Developer shall
utilize said building as a grocery store, and may utilize portions of the building
for off -sale liquor sales (pursuant to a valid off -sale liquor license, which
Developer must obtain), video store and convenience store, provided said liquor,
video and convenience uses do not exceed 35% of the building square footage.
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Developer may, at its discretion, expand the said building consistent with the
proposed expansion plans shown on the attached Exhibit F, provided said
expansion is utilized for grocery uses.
C. Developer may also utilize a portion of said building on Lot 1, Block 1 of Said
Plat for gasoline sales pursuant to the conditional use granted herein, provided
Developer configures its gasoline sales equipment in substantially the same
location, size and shape as shown on the attached Exhibit F.
D. No gasoline or other vehicle fuel sales shall be allowed on outlots A or C,
regardless of whether such lots are replatted into numbered lots and blocks in the
future.
E. Developer may construct a building on Lot 2, Block 1, of Said Plat in
substantially the same size, shape, and location and of substantially the same
materials as shown on the attached Exhibit F, and Developer shall construct all
parking and other improvements shown on said Exhibit F
F. The Developer may erect signage and monuments (ground signs) consistent with
those shown on the attached Exhibit D and in the locations as shown on the
attached Exhibit F. Gas pump canopy signs shall not be illuminated. No signage
shall be permitted on the east wall or south walls of the buildings.
G. Upon the replatting of outlots A and C into numbered lots and blocks, signage on
such future lots and blocks shall be limited to monument (ground) signage and
signage on such buildings as may be constructed, all such signage to be
consistent with the then -existing City ordinances. Said future numbered lots and
blocks shall not be permitted to erect elevated signage on a pylon or other type of
fi'ee-standing sign. Notwithstanding this paragraph 6.G., the pylon sign permitted
under paragraph 6.F. of this agreement may be erected on Outlot A, but may only
be utilized to fiu'ther the business pursuits of those businesses which occupy Lots
1, 2 and/or 3 of Said Plat.
H. Lighting on Said Plat shall be turned off or reduced to the necessary xniniinum
when the businesses are closed.
1. Developer shall designate crosswalks to accommodate pedestrians going fi•om the
parking lots to the stores located on Said Plat.
J. Developer shall establish an access, drainage and utility easement agreement
providing for access to all lots on Said Plat (including outlots) over the private
roadways shown on Exhibit E and providing for the maintenance of utilities and
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ponding consistent with the Utility Plan and Grading, Drainage and Erosion
Control Plan in areas described on Exhibits B and C, respectively. Said easement
must meet the approval of the City Attorney and be recorded on the property
records of Lots 1, 2 and 3, Block 1 and Outlot B of Said Plat at the Wright
County Recorder's Office,
K. Developer shall install landscaping in accordance with the plan attached hereto as
Exhibit G. All improvements required to be installed under this paragraph shall
be installed at Developer's expense. Developer shall guarantee that all such
landscaping shall survive for at least two years, and Developer shall replace any
landscaping which dies during said two-year period.
L. Prior to the issuance of a building permit for any buildings on Lot 3, Block 1 of
Said Plat, Developer shall submit a site plan, landscape plan, lighting plan, and
signage plan acceptable to the City for each lot to be built upon, and, upon
issuance of the building permit, shall adhere to such approved site plan,
landscape plan, lighting plan and signage plan. All improvements required to be
installed under this paragraph shall be installed at Developer's expense.
M. in the event the Developer operates a restaurant on any lots in Said Plat, the
City may require Developer to install and operate odor control scrubbers with
the restaurant uses.
N. Developer shall have two accesses onto the property from 57"' Street and two
off of the frontage road as shown on Exhibit F. All accesses shall be
constructed according to the plans and specifications dated February 6, 2002 and
March 1, 2002 as prepared by John Oliver & Associates, Inc., as shown on
Exhibit F and according to the standards adopted by the City, along with all items
required by the City Engineer and/or City Planner.
O. Except for those hocks that are scheduled on a route that cannot reasonably be
rescheduled to fit the time requirements of this paragraph, no loading or
unloading of materials from trucks or other commercial vehicles shall occur on
Lots 1, 2 or 3, Block 1 of Said Plat fi•om the hours of 11 p.m, to 6 a.m. on any day
of the week.
P. Developer may assign all or any portion of its rights and obligations hereunder
related to all improvements to be constructed on lots 1, 2 and 3, Block 1 of Said
Plat to KTJ Limited Partnership Seventy -Four, a Minnesota limited partnership.
Q. Without limiting the generality of the terms of this Agreement, this Agreement
constitutes the full integration and restatement of all term and obligations that
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are applicable to Said Plat and that are set forth in that certain City of
Albertville Developer's Agreement that was executed by the Parties and dated
November 2, 1999 and that was recorded on November 9, 1999 as Document
Number 694771.
7. Maintenance of Streets Utilities and Pondin .
A. With the exception of Frontage Avenue (which shall be dedicated as a public
street), the interior drive aisles, curb, gutter, municipal water, sanitary sewer,
storm sewer, and ponds in Said Plat which are not located within Frontage
Avenue right of way shall remain private and the cost of maintenance of these
items must be borne by the lots in Said Plat in accordance with the terms of the
Maintenance Agreement attached as Exhibit E to this Agreement.
B. The City shall have the right to enter upon all easement areas at any time for
inspection and maintenance purposes.
9. 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 rune (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,
10. 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
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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.
11. 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.
12. 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 tip 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 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 specially assessed against the lots within
Said Plat upon which the subject development activities are ongoing.
13. 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.
14. Miscellaneous.
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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 thud 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.
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. Notwithstanding the foregoing, in no event
shall the Developer or its successors be required to cease work upon any
portion of the First Phase Properties unless such a violation concerns a
condition of, or activity or omission upon the First Phase Properties, or is
related to the First Phase Properties or is related to the use of the First Phase
Properties.
G. Prior to the execution of this Agreement and prior to the start of any
construction on the Subject Property, Developer shall provide the City with
evidence of good and marketable title to all of Subject Property. Evidence of
good and marketable title shall consist of a Title Insurance Policy or
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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 and wetland related restrictions, if any,
required by the City of Albertville and/or any applicable provisions of State
and Federal law.
I. 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.
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.
15. Dedications to the City.
A. The Developer, upon presentation to the City of evidence of good and marketable
title to Subject Property, and upon completion of all construction work and
certification of completion by the City Engineer, shall make the following
dedications to the City:
1. Developer shall dedicate drainage and utility easements to the
City over, under and across all drainage ponds located in Said Plat as
the same are identified on the attached Exhibit B.
2. Developer shall dedicate to the City all utility easements shown
on Said Plat.
B. Developer acknowledges and agrees that in order to satisfy the City's park
dedication requirements for Said Plat, Developer shall pay $5,000 per acre for
all lots developed as numbered lots. Said Plat consists of 13.34 acres of
14
numbered lots. Therefore, Developer shall pay the City a cash payment
totaling $66,700. At such time as Developer replats Outiots A and C into
numbered lots, the Developer shall pay the City park dedication amounts due
for such lots under the applicable ordinance in effect at the time of such
replatting.
16.Indemnity.
A. Developer shall hold the City and its officers, employees and agents harmless
from claims made by Developer and Third Parties for damages sustained or
costs incurred resulting fi-om Said Plat approval and development. The
Developer shall indemnify the City and its officers, employees and agents for
all costs, damages or expenses which the City may pay or incur in consequence
of such claims, including attorney's fees. Thud parties shall have no recourse
against the City under this contract.
B. Upon sale of a lot in Said Plat to a third party, Cascade 11 Land Co., LLC's
obligation to indemnify under paragraph 1 G.A. above with respect to such sold
lot shall cease to accrue, except that as to any events, acts or occur-rences on the
subject lot that occurred prior to said sale of such lot, Cascade 11 Land Co.,
LLC shall remain obligated to indemnify the City. Upon sale of a lot to such
third party, the thud party shall be bound by the indemnification obligations of
said paragraph 16.A. as to any events, acts or occurrences on the subject lot that
occurred after said sale of such lot.
17. Assi nment 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, except as expressly permitted elsewhere in this Agreement.
18. Agreement Effect. This agreement shall be binding upon and extend to the
representatives, heirs, successor and assigns of the parties hereto.
19. Violation of Agreement.
A. In the case of default by the Developer, its successors or assigns, of any of the
covenants and agreements herein contained, the City shall give Developer
thirty (3 0) 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 mn from the date of deposit in the United States Mail. Upon
failure to cure by Developer, the City may thence immediately and without
15
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, provided that the City shall not assess the First
Phase Properties pursuant to this paragraph unless said default concerns a
condition of, or activity or omission upon the First Phase Properties, or is
related to the First Phase Properties or is related to the use of the First Phase
Properties.
B. Notwithstanding the 30-day notice period provided for in paragraph 17(A)
above, in the event that a default by Developer will reasonably result in
irreparable harm to the environment or to public property, or result in an
imminent and serious public safety hazard, the City may immediately
exercise all remedies available -to it under this agreement in an effort to
prevent, reduce or otherwise mitigate such irreparable harm or safety hazard,
provided that the City makes good -faith, reasonable efforts to notify the
Developer as soon as is practicable of the default, the projected irreparable
harm or safety hazard, and the intended actions of the City to remedy said
harm.
C. 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; provided, however, that building permits shall not be denied or
withheld pursuant to this Section 19.0 with respect to improvements
proposed to be constructed upon the First Phase Properties unless said breach
concerns a condition of, or activity or omission upon the First Phase
Properties, or is related to the First Phase Properties or is related to the use of
the First Phase Properties.
20. Phased Development. If the plat is a phase of a multi -phased prelimir7ary plat, the City
may refuse to approve final plats of subsequent phases if Developer is in breach of this
Agreement. 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 Plan, Zoning ordinance,
Subdivision ordinance, and other ordinances in effect at the time such future
Development phases are approved by the City.
16
21. Limited Approval. Approval of this Agreement by the City Council in noway
constitutes approval of anything other than that which is explicitly specified in this
Agreement.
22. 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.
23. 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.
24. Inte ration Clause Modification by Written A reement 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.
25. 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
Cascade II Land Co., LLC
555 3rd Street N.W.
Elk River, MN 55330
Telephone: (763) 441-8591
26. Agreement Effect. This Agreement shall be binding upon and extend to the
representatives, heirs, successors and assigns of the parties hereto.
THIS DEVELOPMENT AGREEMENT is executed and delivered as of the date
first above written.
17
CITY OF ALB RTUILLE,
By
John Olson
Its or
By
Linda Goe
Its City Administrator
CASCADE II LAND CO., LLC
By
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
The regoing instrument was acknowledged before me this 2 day of
` 2002, by John Olson as Mayor of the City of Albertville, a
Minn sota municipal corporation, on behalf of the city and pursuant to the authority of the
City Council.
Notary Public
STATE OF MINNESOTA)
sS. E �R MICHAEL C. COURI
NOTARY PIMLIC - IMINNI OTA s
COUNTY OF WRIGHT ) 1My Comm, Fat, sin. 31, n2005
vri] ".l�Va p"1^J 'L✓'.iL!'`� �Y iL"U�Ji WIY'aT6'L1YT
The foregoing instrument was acknowledged before me this 2 9 day of
2002, by Linda Goeb, as City Administrator of the City of
Afb-Wville, a Minnesota municipal corporation, on behalf of the city and pursuant to the
authority of the City Council.
18
� 'a 789447
Br ICI-lAEL. C. CIOURi
. 1 NOTARY PUBLIC - MINNESOTA
ANY Comm. Exp_ Jan. 11, 2005
Notary Public
STATE OF M NNESOTA )
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this a9�" day of
AP/R,(- , 2002, by Marlon Glines, as Chief Manager of Cascade II Land Co.,
LLC, a Minnesota limited liability company, o4y�
alf of the limited liability company.
LYLE L. CHRISTENSEN Noblic
NOTARY PUBLIC- MINNESOTA
MY COMMISSION
EXPIRES JAN. 31, 2W5
DRAFTED BY:
Couri and MacArthur Law Office
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376
(763) 497-1930
19
78944'7
EXHIBIT A
The legal description of the property which is the subject of this Developer's Agreement is
as follows:
Lots 1, 2 and 3, Block 1
Outlots A, B and C
Albertville Crossing, according to the plat of record on file in the Wright County Recorder's
Office, Wright County, Minnesota.
20
78944'7
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EXHIBIT
3 B
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CTt a AL HEftTVILLE CROSSING
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"
00.1E DESCRIP71ON
—
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CONSENT AND JOINDER OF FEE OWNER
THE UNDERSIGNED, fee owner of the "Subject Property" as defined in the foregoing Development
Agreement, hereby consents to the terms of the DEVELOPER'SIPLANNED UNIT DEVELOPMENT
AGREEMENINCONDITIONAL USE AGREEMENT for Albertville Crossing and agrees that the
covenants, casements and restrictions set forth in said Development Agreement shall be binding upon the
undersigned and all future Owners of the Subject Property. The undersigned hereby confirms that it is a
Minnesota limited partnership, that its correct legal name is as set forth below, and that the "Contract for
Deed" (as defined in the foregoing Development Agreement) incorrectly identifies the undersigned as a
Minnesota limited liability company and incorrectly identifies the undersigned's name as: "Clemens
Properties, a Minnesota Limited Partnership." The undersigned hereby further confirms that it shall
execute and deliver, in recordable form, such confirming documentation as any party to the Development
Agreement may reasonably request in order to give full effect to this Consent.
THIS CONSENT AND JOINDER OF FEE OWNER is executed and delivered as of the
day of April, 2002.
CLEMENS PROPERTIES, a Limited
Partnership, a Minnesota limited partnership
By; l ��u °
Its: t 1110 U 5 % C; r;
STATE OF MINNESOTA }
) SS.
COUNTY OF Wk-,10"r )
The foregoing commitment was acknowledged before me this )��y of April, 2002, by
the -7-,�0,,f-C-i of Clemens Properties, a
Limited Partnership, a Minnesota limited partnership, on behalf of the limited partnership.
„�. LYLE L. CHRISTENSEN
NOTARY PUBLIC - MINNESOTA
MY COMMISSION
n EXPIRES JAN. 31, 2005
This instrument was drafted by:
Fabyanske, Westra & Hart, P.A. (GCE)
920 Second Avenue South, Suite 1100
Minneapolis, MN 55402
(612)338-0115
Notary , ublic
'789447