2009-05-06 PUD
CITY OF ALBERTVILLE
PLANNED UNIT DEVELOPMENT AGREEMENT
Niemeyer Trailer Sales
THIS AGREEMENT, entered into this 6th day of May, 2009 by and between City of
Albertville, a body corporate and politic existing under the law of the State of Minnesota,
the "City", and Niemeyer Properties, LLC, a Minnesota Limited Liability Company
("Niemeyer"), and Wellerson, LLP, a Minnesota Limited Liability Partnership .
("Wellerson"); Niemeyer and W ellerson may collectively be referred to herein as
"Developer";
WITNESSETH:
WHEREAS, Wellerson is the fee owner and Niemeyer is the developer of the real
property legally described on the attached Exhibit A (the "Subject Property"); and
WHEREAS, the City has given preliminary and fmal plat approval to the Subject
Property contingent upon compliance with certain City requirements including, but not
limited to, matters set forth herein; and
WHEREAS, the Subject Property is currently owned by Wellerson and leased by
Niemeyer pursuant to a certain Ground Lease Agreement dated ; and
WHEREAS, the City has given fmal approval of Developer's plat of the Subject
Property 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,
storm sewer and drainage ponds as defined and described in paragraph 4 below to be
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installed to serve Said Plat and other properties affected by the development of Developer's
land, to be installed and fmanced by Developer; and
WHEREAS, the City further requires that certain on- and off-site improvements be
installed by the Developer within Said Plat, which improvements consist of boulevards, top
soil and sod, grading and erosion control per lot, bituminous or concrete driveways,
drainage swales, berming, street signs, street lights, street cleanup during project
development, erosion control, landscaping, and other site-related items; and
WHEREAS, final approval of the Planned Unit Development ("PUD") is required
to allow for the aforementioned Subject Property proposed by Developer; and
WHEREAS, this Agreement is entered into for the purpose of setting forth and
memorializing for the parties and subsequent owners, the understandings and covenants of
the parties concerning the development of the Subject Property and the conditions imposed
thereon;
NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY
AGREED, in consideration of each party's promises and considerations herein set forth, as
follows:
1. Planned Unit Develooment. The City hereby grants approval of the Development
on the Subject Property as a Planned Unit Development. Unless otherwise
explicitly set forth in this Agreement, however, Developer must conform to the
requirements of the Business Warehousing ("BW") zone of the Albertville Zoning
and Subdivision Ordinance, as well as all other applicable land use regulations.
Developer agrees that the following conditions will be met on a continuing basis:
A. Conditional Use Permit Approval for Lot 3, Block 1. A conditional use on
Lot 3, Block 1 of the Subject Property is approved for motor and recreational
vehicle sales, leasing/rental, service and repair, subject to the following
conditions:
1. All structures shall be constructed in the configuration, location, floor plan
and materials as shown on the plans attached as Exhibits B and C to this
Agreement.
11. Developer shall construct the number of parking stalls in the locations and
dimensions as shown on the attached Exhibit B. The parking stalls shall
not be used for outdoor sales or storage and shall be specifically marked
for customer and employee use.
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Hi. Outdoor storage of waste material, debris, refuse, damaged vehicles, or
new or junk vehicle parts on said Lot 3, Block 1 shall be prohibited.
iv. The outdoor repair of motor vehicles or motor vehicle parts anywhere on
the property is prohibited.
v. Only the area designated for outdoor sales as shown on Exhibit B shall be
used for outdoor sales. No other area may be used for this purpose.
vi. Developer shall install signage along the parking lots and sales lots at
locations approved by the City Engineer indicating the location of wetland
buffer areas.
vii. All lighting shall be hooded with a ninety degree (90 degree) cutoff that
directs lighting downward so that no lighting shines on adjacent property,
building, or structures.
V1l1. Developer shall pave those portions of the Subject Property labeled
"bituminous pavement" as shown on Exhibit B prior to the issuance of an
occupancy permit for any building on said lot 3, block 1.
ix. Developer, shall maintain the area labeled Outdoor Sales Lot on Exhibit B
as a gravel sales areas until not later than seven years after the building
permit is issued for any building on said Lot 3, Block 1, at which time
Developer shall pave such gravel area.
x. Trees, shrubs, berms and screening are to be planted and installed as
shown on the Landscape Plan attached as Exhibit D and may not be
removed without the written consent of the City unless such plants have
died and are removed and immediately replaced with plantings consistent
with said Landscape Plan. The lot owner 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 lot owner. Each lot
owner will be required to post a cash escrow with the City prior to the
issuance of a building permit for such lot to ensure the installation of the
required landscaping, which must be installed during the building season
in which the building is substantially completed, or the following building
season if weather conditions do not permit the installation of such
landscaping upon substantial completion of the building. The escrow
shall cover the estimated cost to purchase and install landscaping for that
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lot and the escrow shall remain with the City for the full two year
guarantee period, provided, however, that the escrow shall be reduced by
50% upon the planting of all landscaping required on said lot. The lot
owner shall replace, at its own expense, any plantings as shown on
attached Exhibit D that might be damaged during the construction of any
buildings on Subject Property.
xi. Developer shall maintain the infiltration and wetland buffer plantings
shown on Exhibit D in good working order at all times. Developer shall
maintain all ponds, storm sewers and drainage ways on the Subject
Property.
B. Developer has submitted a utility plan for Subject Property showing all existing
and proposed utility lines and easements, attached hereto and incorporated herein
as Exhibit B. Developer agrees to install all such utilities at Developer's expense
according to this Exhibit B.
C. Use of Easement Areas. Developer shall be permitted to plant trees and
construct improvements consisting of bituminous pavement and concrete curb
over drainage and utility easement areas in the locations shown on the attached
Exhibit E ("Easement Area"), provided that such structures do not inhibit the
use of the Easement Area by the City and provided that in the event the City
uses such Easement Area in the future for its intended purpose, the City may
remove such structures and improvements from the Easement Area as may be
necessary, and Developer shall be responsible for reinstalling such
improvements and structures at Developer's cost. Furthermore, the Easement
Area, including all improvements in it, shall be maintained continuously by the
Developer, except for those improvements for which a public authority or
utility company is responsible. Such maintenance shall include snow and ice
removal within a reasonable time of its accumulation such that vehicles can
reasonably travel on such easement area during normal business hours.
D. Developer shall comply with all water, ponding and wetland related restrictions,
if any, required by the City of Albertville, Wright County Soil and Water District
and/or any applicable provisions of State and Federal law. Any and all
dewatering and dewatering operations will be the sole responsibility of the
Developer and shall be performed as required by the City and in accordance with
all applicable county, state, and federal rules and regulations. Developer shall
install wetland buffer between the wetlands and parking lots/sales display areas
as required by City Ordinance and shown on Exhibit B.
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E. All grading, drainage, utility, wetland mitigation, and transportation issues that
arise during development of the Subject Property shall be subject to review and
approval by the City Engineer.
F. Developer shall establish a Reciprocal Easement Agreement ("REA") or a
maintenance agreement that shall be recorded at the Wright County Recorder's
Office and which shall require the owners of the numbered lots on the Subject
Property to maintain all ponds, drainage ways and storm sewers within the
Subject Property, including those located on Outlot A. Such REA or
maintenance agreement shall be subject to approval by the City Attorney.
G. All construction shall comply with the City of Albertville engineering standards,
Standard Utility Specifications of the City Engineers Association of Minnesota,
1999 edition, and the latest edition of the MnDOT Standard Construction
Specifications and all regulatory requirements (MPCA, MN Department of
Health, etc.)
H. Developer may, at Developer's expense and within five years from the date of
this Agreement, relocate the existing billboard now located on Lot 2 of Said Plat
to the property line between Lots 1 and 2 of Said Plat.
2. Sanitary Sewer and Municioal Water Trunk Imorovements.
A. Construction. Upon the execution of this Agreement by all parties, and upon
the recording of Said Plat at the Wright County Recorder's Office, the City
shall make good faith efforts to construct trunk sanitary sewer and municipal
water improvements in the configuration shown on the attached Exhibit F, with
the intention to complete such improvements by October 31, 2009.
B. Special Assessment. The Developer has requested that the City special assess
any trunk charges to the Subject Property rather than require payment of all trunk
charges upon the platting of the Subject Property. The Developer hereby
acknowledges that the Subject Property will benefit from the City's
construction of the sanitary sewer and municipal water trunk improvements as
shown on Exhibit F. Upon the City entering into a contract for the
construction of such trunk utilities, Developer consents to the special
assessment of sanitary sewer and municipal water trunk charges in the amount
of $169,956.25 against Lots 1,2 and 3 as follows: Lot 1: $42,489.06; Lot 2:
$42,489.06; Lot 3: $84,978.13. Developer waives the right to appeal
$169,95625 of such sanitary sewer and municipal water trunk improvement
special assessment to the Wright County District Court pursuant to Minn. Stat.
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~ 429.081. In the event the City special assesses the Subject Property for such
costs, the City shall amortize such special assessments over a period not less
than 10 years at an annual interest rate not exceeding the rate of any bond issued
to fmance said Municipal Improvements (or the most recently issued Albertville
special assessment bond if none is issued for this project) plus 2%.
3. Outlot A.
A. Utilities
B. The Developer has requested that the City construct sanitary sewer and municipal
water improvements on Outlot A. Upon the execution of this Agreement by all
parties, and upon the recording of Said Plat at the Wright County Recorder's
Office, the City shall make good faith efforts to construct said sanitary sewer
and municipal water improvements on Outlot A in the configuration shown on
the attached Exhibit G, with the intention to complete such improvements by
October 31, 2009.
C. Special Assessment. The Developer hereby acknowledges that construction of
the sanitary sewer and municipal water improvements on Outlot A will benefit
the Subject Property. Upon the City entering into a contract for the
construction of such utilities, Developer consents to the special assessment of
all costs related to the installation of such improvements on Outlot A of
Subject Property in the amount of $52,402.75 against Lots 1,2 and 3 as
follows: Lot 1: $13,100.69; Lot 2: $13,100.69; Lot 3: $26,201,38. Developer
waives the right to appeal $52,402.75 of such special assessment to the Wright
County District Court pursuant to Minn. Stat. ~ 429.081. In the event the City
special assesses Subject Property for such costs, the City shall amortize such
special assessments over a period not less than 10 years at an annual interest
rate not exceeding the rate of any bond issued to finance said Municipal
Improvements (or the most recently issued Albertville special assessment bond if
none is issued for this project) plus 2%.
D. If, at the City's request, Outlot A is dedicated to the City, and if, at any time after
that dedication, the City receives payment from the landowner adjoining the
westerly line of the plat of Niemeyer Trailer Sales for initial connection to
sanitary sewer and municipal water improvements constructed on Outlot A, the
City shall rebate to the Developer an amount equal to the lesser of: 1) the amount
received by the City from the landowner adjoining the westerly line of the plat of
Niemeyer Trailer Sales specifically attributable to its initial connection with the
utilities constructed on Outlot A (but excluding connection charges attributable to
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the trunk sanitary sewer and municipal water mains described in paragraph 2A
above); or 2) 50% of the principal amount special assessed to Developer pursuant
to paragraph 3C. However, the City's obligation to rebate monies to the
Developer under this paragraph shall not arise unless Developer first notifies the
City Clerk in writing of its intent to be reimbursed, and such notification occurs
within 120 days before the date preliminary plat approval is granted by the City
for the land adjoining the westerly line of the plat of Niemeyer Trailer Sales.
Failure of Developer to notify the City within said 120 day time period shall
extinguish any obligation of the City to rebate monies to the Developer under this
paragraph. Said rebate shall expire in 30 years from the date of this Agreement,
after which time the City shall have no obligation to rebate any monies to
Developer under this paragraph.
E. Private Street
i. Developer shall construct a private street on Outlot A as shown on Exhibit
H. Said street shall be constructed consistent with the plans and
specifications shown on the plans and specifications as prepared by
Meyer-Rohlin, Inc. dated August 1, 2008 and on file with the City
Clerk.
11. The City may, but is not required to, request that Developer dedicate
Outlot A to the City in its entirety as a public street. If, at any time, the
City makes such a request, Developer must dedicate Outlot A to the City
within 30 days of such request, free of charge, by executing and delivering
to the City the easement attached as Exhibit I, free and clear of liens and
encumbrances.
iii. Until such time as Outlot A may be made a public street by direction of
the City Council pursuant to the terms of this Agreement, Developer shall
maintain the private street located on Outlot A in a commercially
reasonable manner such that the street is paved and plowed at all times
and such that cars and emergency vehicles can safely pass on said road at
all times. At the time of recording of this Agreement at the Wright
County Recorder's Office, Developer shall record a private street
maintenance agreement or Reciprocal Easement Agreement ("REA")
which requires all three lots on the Subject Property to maintain said
private street in a commercially reasonable manner as required by this
Agreement. Such maintenance agreement or REA must meet the approval
of the City Attorney as to form and content. Upon recording of such,
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Developer shall be relieved of the maintenance of such private street
except to the extent Developer's maintenance obligations arise by virtue
of Developer's ownership of property subject to such maintenance
agreement or REA. The maintenance agreement or REA shall specify that
the underlying maintenance obligations may not be modified or
eliminated without the written approval of the Albertville City Council,
and such agreement shall specify that at such time as Outlot A becomes a
public street the maintenance agreement or REA shall terminate.
iv. If, at the City's request, Outlot A is dedicated to the City, and if, at any
time after that dedication, the City receives payment from the landowner
adjoining the westerly line of the plat of Niemeyer Trailer Sales
specifically attributable to its initial connection to Outlot A as a public
street, Developer shall receive a rebate not to exceed the lesser of 1)
$140,090.00, representing 50% of the estimated cost of construction of the
street; or 2) the amount of said payment received from the landowner
adjoining the westerly line of the plat of Niemeyer Trailer Sales for initial
connection to Outlot A as a public street. However, the City's obligation
to rebate monies to the Developer under this paragraph shall not arise
unless Developer first notifies the City Clerk in writing of its intent to be
reimbursed, and such notification occurs within 120 days before the date
preliminary plat approval is granted by the City for the land adjoining the
westerly line of the plat of Niemeyer Trailer Sales. Failure of Developer
to notify the City within said 120 day time period shall extinguish any
obligation of the City to rebate monies to the Developer under this
paragraph. Further, the City's obligation to rebate such monies to
Developer shall not include special assessments received by the City from
the landowner adjoining the westerly line of the plat of Niemeyer Trailer
Sales pursuant to a road improvement project undertaken by the City.
Said rebate shall expire in 30 years from the date of this Agreement, after
which time the City shall have no obligation to rebate any monies to
Developer under this paragraph.
4. Construction of Municioal Imorovements.
A. The Developer shall construct grading, storm sewer, storm water ponding,
drainage ponds and improvements to CSAH 37 as required by the Wright
County Highway Department (collectively, "Municipal Improvements") and
the private street, curb and gutter, all (except the improvements to CSAH 37)
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as shown on the plans and specifications as prepared by Meyer-Rohlin, Inc.
dated August 1,2008 and on file. with the City Clerk. All such improvements
shall be constructed according to the standards adopted by the City, along with
all items required by the City Engineer. Unless the City Engineer specifies a
later date, said improvements shall be installed by October 31, 2009.
B. The Developer shall provide the City with record drawings for all Municipal
Improvements and the private street (in both paper and electronic forms),
consistent with City requirements and subject to review and approval of the
City Engineer. Record drawings shall be certified by registered land surveyor
or engineer that all ponds, swales, emergency overflows, and Municipal
Improvements have been constructed on public easements.
C. The Developer warrants to the City for a period of two years from the date the
City accepts the finished Municipal Improvements and that all such
improvements have been constructed to City standards and shall suffer no
significant impairments, either to the structure or to the surface or other usable
areas due to improper construction, said warranty to apply both to poor
materials and faulty workmanship. Acceptance shall be by City Council
motion or resolution.
D. Developer shall provide the City with lien waivers from all contractors and
subcontractors engaged to construct said Municipal Improvements and the
private street on the Subject Property. Should Developer fail to provide the
City with all applicable lien waivers, the City reserves the right to draw upon
Developer's surety after providing Developer with 30 days written notice and
pay any contractors who performed work on any Municipal Improvements or
on the private street and whom Developer has failed to fully pay for the
performance of said work, subject in all events to applicable retainage. In the
event Developer contests such payments, Developer shall have the right to
contest and resolve in good faith and with reasonable diligence the validity of
any such lien or claimed lien pursuant to Minnesota Statute 9 514.10, or, if
Developer has not initiated an action within forty five days after the date of the
City's written notice, the City may initiate an interpleader action in Wright
County District Court naming the Developer and one or more contractors and
pay the disputed sums into the Court for disposition by the Court
E. The City shall, at its option, have the City Engineer present on the Subject
Property for inspection purposes at all times (or such times as the City may
deem necessary) during the construction and installation of said Municipal
Improvements and the private street. Developer agrees to pay for all costs
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incurred by the City during said inspections at the City Engineer's standard
billing rates in effect at the time said inspections occur.
5. Construction of On- and Off-Site ImDrovements.
A. Developer shall construct all on- and off-site improvements including
installation of boulevards, street signs, traffic signs, yard top soil, sod and seed
in all yards, grading and erosion control, drainage swales, berming, and like
items as necessary, street cleanup during project development and erosion
control (collectively, "On- and Off-site Improvements"), all as required by City
ordinance (in effect on the date of this Agreement) and this Agreement. Said
On- and Off-site improvements shall be installed no later than October 31,
2009, with the exception of erosion control, drainage swales and berming,
which shall be installed upon initial grading of the Subject Property.
B. Developer shall maintain erosion control measures in accordance with MPCA's
Best Management Practices, including the placement of silt fencing in back of all
curbs. Developer shall be allowed to substitute hay bales or a rock surface
acceptable to the City Engineer for a 22-foot section of silt fencing in areas
designated by the City Engineer for the purpose of allowing construction vehicles
to pass from the street to the building being constructed. No construction
vehicles shall pass from the street to the building being constructed except
through such designated 22-foot section of hay bales. Developer shall remove all
hay bales and silt fencing as sod is installed. Developer shall abide by the City
Engineer's requirements for silt fencing of the lots and access to the lots during
building construction.
C. 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 within the private street easements or such other location as
may be approved by the City Engineer, accessible to all lots and in compliance
with all applicable state and local regulations:
1. Electrical power supply, to be provided by Xcel Energy or other such
carrIer;
11. Natural gas supply, to be provided by Reliant Energy or other such carrier;
iii. Telephone service, to be provided by SprintlUnited Telephone Company
or other such carrier;
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D. In addition, the Developer shall, at its own expense, cause 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.
E. Developer has submitted a grading plan for Subject Property attached as Exhibit
H. Developer shall implement the grading plan in a manner that will minimize
soil erosion.
6. Surety ReQuirements.
A. The 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 Agreement shall be performed. Said letter of credit or
surety shall be in the amount of $71,979.00 representing the sum of 76.9% of the
estimated cost of the Municipal Improvements and private street ($66,290.00),
and 76.9% of the On and Off-site Improvements ($5,689.00). Said letter of credit
or surety must meet the approval of the City attorney as to form and issuing bank,
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 be automatically
renewed prior to December 31, of each calendar year, by the Developer unless
cancellation of the letter of credit is approved by the City.
B. Upon default of Developer, notice to Developer as required by this Agreement,
and Developer's failure to cure, 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, Municipal Improvements described above,
private street, erosion control, and other such measures), to pay liens on the
Subject Property not subject to an active, good faith dispute by the Developer, to
pay special assessments not timely paid by Developer, 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 the Developer under this Agreement. Said letter of credit must be
maintained by Developer at all times at the level provided in paragraph 6A above
or a lesser amount authorized by the City Council pursuant to paragraph 7 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 payor reimburse the
City in total as required herein, Developer agrees that upon being billed by the
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City, the 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, within 30 days after 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 any or all lots
within the Subject Property for any and all costs incurred by the City in enforcing
any of the terms of this Agreement should the Developer's letter of credit or
surety prove insufficient or should the Developer fail to maintain said letter of
credit or surety in the amount required above within 30 days of mailing of written
request by the City.
E. In the event a surety referred to herein is in the form of an irrevocable letter of
credit, which by its terms may become null and void prior to the time at which all
monetary or other obligations of the Developer are paid or satisfied, it is agreed
that the Developer shall provide the City with a new letter of credit or other
surety, acceptable to the City, at least forty-five (45) days prior to the expiration
of the original letter of credit. If a new letter of credit is not received as required
above, the City may without notice to the 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.
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.
Upon completion of all Developer's obligations under this Agreement which are
secured by said surety and reimbursement of all expenses incurred by the City
under this Agreement, the City shall then release the proceeds of said letter of
credit or surety to the bankruptcy court or receiver in the same manner that it
would be required to release the letter of credit under this Agreement.
7. Surety Release.
A. Periodically, as payments are made by the Developer for the completion of portions
of the Municipal Improvements, private street, On- and Off-site Improvements,
and/or Landscaping Improvements and when it is reasonably prudent, the Developer
may request of the City that the surety be proportionately reduced for that portion of
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such improvements which have been fully completed and paYment made therefor.
All such decisions shall be at the discretion of the City Council.
B. Developer may request of the City a reduction or release of any surety as follows:
1. When another acceptable letter of credit or surety is furnished to the City
to replace a prior letter of credit or surety.
11. When all or a portion of the Municipal Improvements and private street
have been installed, that portion of the letter of credit or surety attributable
to the Municipal Improvements and private street may be reduced by the
dollar amount of such Municipal Improvements and private street
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 and private street during the ftrst year of the warranty
period and 5% of the estimated construction price of the Municipal
Improvements and private street during the second year of the warranty
period.
Hi. When all or a portion of the On- and Off-site Improvements have been
installed, that portion of the letter of credit or surety attributable to the On-
and Off-site Improvements may be reduced by the dollar amount of such
On- and Off-site Improvements installed.
iv. When all or a portion of the Landscaping Improvements have been
installed, 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.
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.
8. Option to Purchase Land for Lift station. Developer hereby grants the City the
option to purchase Outlot B for $15,435.00. Said option shall be valid for two years
from the date of this Agreement, and may be exercised by delivering written notice
of the City's intent to exercise the option to Developer at the address provided in this
Agreement. The closing shall occur within 60 days of delivery of the notice of intent
to exercise the option. At closing, Developer shall provide the City with marketable
title to the property via a general warranty deed. Developer shall pay all prior years
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taxes and any deferred taxes that are recaptured under the state's green acres
program or other such programs. Real estate taxes due in the year of closing shall be
prorated to the date of closing. Outlot B shall be cleared of all personal property at
the time of closing. Developer agrees not to disturb the soils on Outlot B during the
term of this option unless the City ftrst consents to such disturbance in writing.
9. Abandonment ofProiect - Costs and Expenses. In the event Developer should
abandon the Development of the Subject Property, the City's reasonable costs and
expenses related to attorney's fees, professional review, drafting of this Agreement,
preparation of the feasibility report, plans and speciftcations, and any other expenses
undertaken in reliance upon Developer's various representations shall be paid by
Developer within thirty (30) days after receipt of a bill for such costs from the City.
In addition, in the event Developer abandons the Development, in whole or in part,
ceases substantial fteld work for more than nine (9) months, fails to provide
sufftcient ground-cover to prevent continuing soil erosion from the Subject Property,
or fails to leave the Subject Property in a condition which can be mowed using
conventional lawn mowing equipment, Developer agrees to pay all costs the City
may incur in taking whatever action is reasonably necessary to provide ground-cover
and otherwise restore the Subject Property to the point where undeveloped grounds
are level and covered with permanent vegetation sufftcient to prevent continuing soil
erosion from the Subject Property and to facilitate mowing of the Subject Property.
In the event that said costs are not paid, the City may specially assess such costs
against the Subject Property and/or take necessary legal action to recover such costs,
including reasonable attorneys' fees.
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,
mapping, engineering and other professional costs incurred in the creation,
administration, enforcement or execution of this Agreement and the approval of
Developer's PUD application, as well as all reasonable engineering expenses
incurred by the City in designing, approving, installing, mapping 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, then the City may
specially assess such costs against the Subject Property.
11. Erosion and Siltation Control. Before any grading is started on any site, all erosion
control measures as shown on the approved erosion control plan shall be strictly
complied with as set forth in the attached Exhibit J. Developer shall also install all
erosion control measures deemed necessary by the City Engineer should the erosion
control plan prove inadequate in any respect.
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12. Draina2e Requirements. Developer shall comply with all applicable requirements
for drainage into any county ditch, railroad ditch or other ditch through which water
from the Subject Property may drain, and shall make any necessary improvements or
go through any necessary procedures to ensure compliance with any federal, state,
county or city drainage requirements, all at Developer's sole expense.
13. Ditch Cleanin2. Developer shall comply with all requirements set forth for drainage
into any county ditch, railroad ditch or other ditch through which water from the
Development may drain, and shall make any necessary improvements or go through
any necessary procedures to ensure compliance with any federal, state, county, city
and railroad requirements, all at Developer's expense.
14. Maintain Public Pronertv Dama2ed or Cluttered Durin2 Construction.
Developer agrees to assume full financial responsibility for any damage which may
occur to public property including but not limited to streets, street sub- base, base,
bituminous surface, curb, utility system including but not limited to watermain,
sanitary sewer or storm sewer when said damage occurs as a result of the activity
which takes place during the development of the Subject Property. 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 on the Subject Property.
Developer agrees to clean the public streets providing access to the Subject
Property on a daily basis if required by the City. Developer further agrees that any
damage to public property occurring as a result of construction activity on the
Subject Property 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 the Subject Property will be repaired within 14 days if
not deemed to be an emergency by the City.
If Developer fails to so clean the streets or repair or maintain said public property,
the City may undertake making or causing it to be cleaned up, repaired or
maintained. When the City undertakes such activity, Developer shall reimburse the
City for all of its expenses within thirty (30) days of its billing to the Developer. If
Developer fails to pay said bill within thirty (30) days, then the City may specially
assess such costs against the Subject Property and/or take necessary legal action to
recover such costs and the Developer agrees that the City shall be entitled to
reasonable attorneys' fees incurred by the City as a result of such legal action.
15
The Developer shall not be responsible for damage or clutter to public property to the
extent such damage or clutter is caused by the City, its employee, its agents or its
contractors.
15. TemDorarv Easement Ri2hts. Developer shall provide access to the Subject
Property at all reasonable times to the City or its representatives for purposes of
inspection or, after notice and expiration of the cure period as set forth in this
Agreement to accomplish any necessary work pursuant to this Agreement. Upon
expiration of the warranty period and completion of all warranty work, such
temporary easement shall terminate.
16. 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
Agreement 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
Agreement.
C. Developer, its successors or assigns, shall strictly comply with all City weed
control ordinances.
D. Developer shall not stockpile excess or unsuitable earthen material on the
Subject Property without prior approval from the City Council.
E. 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.
F. The action or inaction of the City shall not constitute a waiver or amendment to
the provisions of this Agreement. 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
Agreement shall not be a waiver or release.
16
G. This Contract shall run with the land and shall be recorded against the title to the
property. Upon completion of all of Developer's obligations under this
Agreement, and upon the request of Developer, the City shall release Developer
from paragraphs 2, 4,5,6, 7, 9, 12, 13, 15, 16A, 161, 16N, and 20 of this
Agreement. The remainder of this Agreement shall remain binding upon the
owners of the properties that make up the Subject Property.
H. Developer represents to the City that the Subject Property and the proposed use
on the Subject Property complies with all City, County, State and Federal laws
and regulations, including but not limited to: subdivision ordinances, zoning
ordinances, and environmental regulations. Developer agrees to obtain all
required federal, state and local permits. If the City reasonably determines that
the Subject Property does not comply, the City may, at its option, refuse to allow
construction or development work on the Subject Property until Developer so
complies. Upon the City's demand in such event, the Developer shall 'cease work
until there is compliance as determined by the City.
I. Prior to the execution of this Agreement and prior to the start of any
construction on the Subject Property, the Developer shall provide the City with
evidence of good and marketable title to the Subject Property. Evidence of
good and marketable title shall consist of a Title Insurance Policy or
Commitment from a national title insurance company, or an abstract of title
updated by an abstract company registered under the laws of the State of
Minnesota.
J. 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.
K. Developer shall obtain all required driveway, utility and other permits as required
by the City Engineer, Wright County and/or the State of Minnesota.
L. Developer shall restore or replace, at its own expense, any public right-of-way,
concrete curb and gutter, bituminous pavement, sidewalk or vegetative cover
damaged by construction occurring on the Subject Property. Developer shall also
replace at his own expense any damaged turf with sod within the public right of
way.
M. Developer shall establish an REA which shall provide for the maintenance of the
following items in perpetuity which are located within the Subject Property: all
17
storm water ponds and infiltration basins, retaining walls, drainage swales,
emergency overflows and storm sewer system. Such REA shall set out the
proportionate share of such maintenance cost to be borne by each numbered lot
on the Subject Property. Except as otherwise provided in this Agreement, upon
the failure by the Developer or the owners of the Subject Property to properly
maintain or repair the items outlined in this paragraph (as reasonably determined
by the City) or should any portion of the Subject Property be forfeited to the State
or other governmental entity for non-payment of taxes, the City shall give
Developer thirty (30) days mailed notice thereof (via certified mail), and if such
default is not cured within said thirty (30) day period, the City is hereby granted
the right and the privilege to fix any deficiencies governed by this Agreement and
bill the owners of the numbered lots on the Subject Property for said costs. 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 the Developer and the owners of
the Subject Property, the City may thence immediately and without notice or
consent ofthe owners of the Subject Property complete its obligations under this
Agreement, and specially assess the costs thereof against the Subject Property
and/or bring legal action against the owners of the numbered lots on the Subject
Property to collect any sums due to the City pursuant to this Agreement, plus all
costs and reasonable attorney's fees incurred in enforcing this Agreement.
Should the City assess the Subject Property for said maintenance and
administrative costs, Developer, it's successor or assigns, agree not to contest or
appeal such assessment.
N. Prior to beginning construction work on the Subject Property, Developer shall
provide the City with a general liability and property damage insurance policy
naming the City and the City's consulting engineering firm as additional insureds
in the minimum amount of $1,200,000.
O. From time to time at Developer's request, the City shall provide an estoppel letter
for use by Developer for refmancing or a proposed sale of all or a portion of the
Subject Property. Such estoppel letter shall state whether the City Council is
aware of any existing violations of this Agreement, and may reserve the right in
the City to identify and enforce any violations the City Council is not aware of as
of the date of said estoppel letter. Prior to issuing such estoppel letter, the City
may require the requestor to pay all City costs incurred in issuing such letter.
17. Violation of Al!reement.
A. Except as otherwise provided in this Agreement, upon any default by Developer,
its successors or assigns, of any of the covenants and agreements herein
18
contained, the City shall give the Developer thirty (30) days mailed notice thereof
(via certified mail), and if such default is not cured within said thirty (30) day
period, the City is hereby granted the right and the privilege to declare any
deficiencies governed by this Agreement due and payable to the City in full. The
thirty (30) day notice period shall be deemed to run from the date of deposit in
the United States Mail. Upon failure to cure by the Developer, the City may
thence immediately and without notice or consent of the Developer complete the
Developer's obligations under this Agreement, and specially assess the costs
thereof against the Subject Property, 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, draw on the Surety provided
herein, or pursue any combination of the above remedies as well as any other
remedy available to the City in law or equity.
B. Notwithstanding the 30-day notice period provided for in paragraph 17A above,
in the event that a default by the 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. Paragraph 17A of this section shall not apply to any acts or rights of the City
under paragraph 6E above, and no notice need be given to the Developer as a
condition precedent to the City declaring a default or drawing upon the expiring
irrevocable letter of credit as authorized by paragraph 6E. The City may elect to
give notice to the 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.
18. Enforcement and Release. Although the obligations of Wellerson and Niemeyer
under this Agreement are joint and several, the City may not enforce any of the
terms of this Agreement against Wellerson until the City has served notice of
default upon Niemeyer and Niemeyer has failed to cure such default within the
time period permitted by this Agreement. If, at any time, Niemeyer purchases the
Subject Property from Wellerson, the City and Niemeyer agree to release
19
Wellerson from the terms of this Agreement as it applies to Wellerson as
Developer. In such event, the terms of this Agreement shall remain binding upon
Wellerson, to the extent Wellerson retains an ownership interest in the property
that is subject to the terms of this Agreement.
19. Dedications to the City. Developer, upon presentation to the City of evidence of
good and marketable title to the Subject Property, shall make the following
dedications to the City:
A. Developer shall provide to the City "As-Builts" of all sewers, water mains,
storm water retention ponds and trails contained within easement areas.
Acceptance by City of any improvement contained within such easement area
shall occur upon passage of a resolution to such effect by the City Council.
B. The Developer is required to pay a cash contribution of$45,100.00 in
satisfaction of the City's park and trail dedication requirements. This charge is
calculated as follows: 5.5 acres x $8,200.00 per acre = $45,100.00.lDeveloper
shall pay this amount prior to the release of the final plat by the City.
C. If, at any time, the City requests that Developer dedicate Outlot A to the City,
Developer must do so, subject to provision 3 .E.iv. of this agreement. At the
time such dedication to the City is made, Developer shall have marketable title
in Outlot A and such dedication shall be made free and clear of all
encumbrances except for the drainage and utility easement required by this
Agreement.
20. 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 and private street
within the Plat. The parties acknowledge that the administrative fee related to the
installation of sanitary sewer and municipal water has already been included in the
cost estimate set out in paragraph 3.A.ii. above, and thus shall be excluded from
the administrative fee required to be paid in this paragraph. The administrative fee
for this Plat to be paid pursuant to this paragraph is $1,505.00. Seventy-five
percent of this fee shall be paid upon issuance of the final Plat with the remaining
twenty-five percent of the fee to be paid upon substantial completion of the
Municipal Improvements.
21. Indemnitv. Developer shall hold the City and its officers and employees harmless
from claims made by Developer or third parties for damages sustained or costs
incurred resulting from the Subject Property. Developer shall indemnify the City
20
and its officers and employees for all costs, damages or expenses which the City may
payor incur in consequence of such claims, including reasonable attorney's fees,
provided, however, that in the event the negligence of the City, its officers, or
employees contributes to such damage, Developer's obligation to indemnify the City
shall be reduced by the percentage of the City's negligence. In the event of any such
claim is brought against the City which is in the nature of a tort action, the City shall
seek to apply the tort limitations of Minn. Chapter 466 to such claim. Third parties
shall have no recourse against the City under this Agreement.
22. Assilmment of Ae:reement. The obligations of Developer under this Agreement
cannot be assigned without the express written consent of the City Council through
Council resolution.
23. Limited Approval. Approval of this Agreement and Planned Unit Development
which is the subject of this Agreement by the City Council in no way constitutes
approval of anything other than that which is explicitly specified in this Agreement.
24. Professional Fees. 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. The
Developer will also pay all reasonable attorneys' 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.
25. 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.
26. Intee:ration Clause. Modification bv Written Ae: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, approved by the
Albertville City Council and signed by the duly authorized agents of both parties.
27. Notification Information. All notices or other communications required or desired
to be given under this Agreement shall be in writing and shall be deemed given,
effective and received upon the earlier of (a) the date of personal delivery; (b) 30
days after deposit in the United States mail, postage prepaid, certified or registered
mail, return receipt requested, to the parties at the following addresses:
21
If to City:
City Clerk
City of Albertville
P.O. Box 9
Albertville, MN 55301
If to Niemeyer:
Niemeyer Properties, LLC
7918 Troy Lane
Maple Grove, MN 55311
If to Wellerson:
Any notice not given to a notice party above shall not be binding on that party. Any
party may change its address for notices by following the procedure set forth above.
28. Ae:reement Effect. This Agreement shall be recorded against the Subject Property
at the Wright County Recorder's Office, shall run with the land, and be binding upon
and extend to the representatives, heirs, successors and assigns of the parties hereto,
except as to those portions of this Agreement specifically released by the City
pursuant to paragraph 16G of this Agreement.
CITY OF ALBERTVILLE,
Byi~KLd-
Its Mayor
BY~~.
Its Cler
22
NIEMEYER PROPERTIES, LLC
/)3Y: J~tIle<S C2.
./ Its: C!...h..tef Vh-~R-.
WELLERSON, LLP
~
/~~
By: Peter L - on .. .. .
Its: Partner
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
. The foregoing instrument was acknowledged before me this ~ tp +~ day of
rn,aLt ' 2009, by Ron Klecker, as Mayor of the City of Albertville, a
Minnesota municipal corporation,. on behalf of the city and pursuant to the authority of the
City Council.
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
Tori A. Leonhardt
Notary Public
Minnesota
,,' My CommisSiOn ExpirIsJanuary 31,2014
The foregoing instrument was acknowledged before me this d lp~ day of
fY\ a L,~ ' 2009, by Bridget Miller, as Clerk of the City of Albertville, a
Minneso municipal corporation, on behalf of the city and pursuant to the authority of the
City Council.
'i
j~\ (\,y~~
Notary pubr
23
~.'''''' , Tori A. Leonhardt
. Notary Public
~ i Minnesota
'"fIlM",""" My Commission Expires January 31, 2014
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this ::2/
m ~ ' 2009, by .JArYeS tl Nt'eme;:;r, as .t~ 1Yv'-,-",,-~ '
Properties, LC, on behalf of such limited liability company.
day of
of Niemeyer
LISA N. THELEN
NOTARY PUBLIC. MINNESOTA
My Cornrris8Ion ExpIres Jan. 31, 2010
~f?)r;--'==-2-
Notary Public
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this ;;lIs/- day of
fl1~ ' 2009, by Peter Larson, as Partner of Wellerson, LLP, on behalf of
such limited partnership.
KIM ANNETTE BAUER
NOTARY PUBLIC - MINNESOTA
My Commission Expires Jan. 31,2010
~ ~ ;t?~
Notary Public -
DRAFTED BY:
Couri, MacArthur & Ruppe, P .L.L.P.
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376
(763) 497-1930
24
EXHmIT LIST
EXHmIT A
Legal Description
EXHmIT B
Site PlanJUtility Plan
EXHmlT C
Building Elevations and Floor Plans
EXHmlT D
Landscape Plan
EXHmlT E
Easement Areas
EXHmlT F
City Improvements
EXHIBIT G
Utility Improvements in Outlot A
EXHmIT H
Street to be constructed on Outlot A/Grading and Erosion Control Plan
EXHIBIT I
Outlot A Easement Dedication Document
EXHIBIT J
Storm Water Pollution Prevention Plan
25
EXHIBIT A
Lots 1,2, and 3, and Outlots A and B, Niemeyer Trailer Sales, according to the
plat of record in the Wright County Recorder's Office, Wright County, Minnesota.
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EXHIBIT I
PERMANENT ROAD EASEMENT
THIS INDENTURE, made this _ day of , by and
between ("Grantor") and the City of Albertville, Wright
County, Minnesota, (Grantee).
WITNESSETH:
WHEREAS, Grantor is the owner in fee simple of the real estate hereinafter described.
That for good and valuable consideration, the receipt of which is hereby acknowledged,
Grantor has this day bargained and sold, and by these presents does bargain, sell and transfer
unto the City of Albertville its successors and assigns the following:
A perpetual easement for street purposes over all of Outlot A, Niemeyer Trailer
Sales, according to the plat of record on file in the Wright County Recorder's
Office, Wright County, Minnesota.
Grantor does hereby covenant with the City of Albertville, that it is lawfully seized and
possessed of the real estate above described.
IN WITNESS WHEREOF, the said parties have caused this instrument to be executed the
day and year first above written.
GRANTOR
By:
Its:
STATE OF MINNESOTA)
) S.s.
COUNTY OF )
.... .'" ''"
The foregoing instrument was acknowledged before me this day of
, by Grantor.
SIGNATURE OF NOTARY
This instrument was drafted by:
Couri, MacArthur & Ruppe, P .L.L.P.
705 Central Ave. East
P.O. Box 369
St. Michael, MN 55376
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SUBORDINATION AGREEMENT
5~ 5~ tit
,2009
Date:
FOR VALUABLE CONSIDERATION, the undersigned hereby subordinates the liens on
real property in Wright County, Minnesota, described as follows:
Lots 1,2, and 3, and Outlots A and B, Niemeyer Trailer Sales, according to
the plat of record in the Wright County Recorder's Office, Wright County,
Minnesota;
such liens are evidenced by the following mortgages executed by Wellerson, LLP, a
Minnesota limited liability partnership, as mortgagor, to First Federal Savings Bank, as
mortgagee:
A mortgage dated December 20, 2001 and filed for record January 7, 2002 as
document number 507771 in the office of the county recorder of Wright County,
Minnesota;
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to that certain document titled City Of Albertville Planned Unit Development Agreement,
Niemeyer Trailer Sales, subsequently filed for record as Document Number
in the Office ofthe County Recorder of the above County.
FIRST FEDERAL SAVINGS BANK
~ ~f~~
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
The for ing instrument was acknowledged before me this S-t1, day of
,2009, by ---.:DOLLe, F. V tJ ~ I ,
the V' P res ,'~ + of First Federal avings Bank on behalf of said
First Federal Savings Bank.
MARl LOU McCORMIC
NOTARY PUBLIC - MINNESOTA
My Commission Expires Jan. 31, 2010
~.~ fl1C~
Notary Public
1
THIS INSTRUMENT WAS DRAFTED BY:
Couri, MacArthur & Ruppe, P .L.L.P.
705 Central Avenue East
P.O. Box 369
St. Michael, MN 55376-0369
763-497-1930
2
'. .
DECLARATION OF EASEMENT AND MAINTENANCE OBLIGATIONS
nus DECLARATlO?n~ BASBMENT AND MAlNTBNANCE OBUGATlONS (this
"Declaration") is made this day of May, 2009, by WBLLBRSON, UP, a Minnesota
limited liability partncJ:ship ("Declarant").
REelT ALS
WHBRBAS, Declarant is the owner of those certain parcels of real property in the
County of W1ipt, State of MiDnesota, legally described as Lots 1, 2, and 3, and Outlota A and B,
Niemeyer Trailer Sales, acc:ording to the plat of rec:ord in the Wriaht County Recorder's Off'lCC,
Wright County, Minnesota (the "Subject Property'');
WHBRBAS, Owner desires to create certain easements, rights and obligatious with
respect to the Lots (defined below) located on the Subject Property to provide for the
maint~.~ of various storm sewer and drainage facilities and the maintenance of a private
street located on the Subject Property;
NOW. THEREFORE, in amsideration of the foregoing, the parties do hereby grant,
impose. create and establish the easements and covenants, set forth below.
ARTICLE I
DefbdtIoDl
Sectionl.l ~. The t8lm "CitY. shall mean the City of Albertville, MiDnesota . a
public body corporate and politic.
Sectionl.2 DevolO1)Dlel1t A~t. The term "Development Agreement" means
that certain City of Albertville PIlDlled Unit Development Agreement dated ~9
between the City. Declarant and Ground Lessee. ~.
Section 1.3 Draina~ and Storm Sewer Facilities. The term "Drainage and Storm
Sewer Facilities" shall mean any and all storm water ponds, infiltration basins. retaining walls.
Clrainaae swales. emer.cncy overflows md storm sewer Systems and any accessory devices
appurtenant and/or accessory to such facilities and systems located on the Subject Property.
Section 1.4 Effective Date. The "Effective Date" is the date first set forth above, upon
which date all terms and conditions of this Declaration are in full force and effect.
Section 1.5 Ground Lease. The term "Ground Lease means that certain Ground Lease
Agreement between Declarant, as ground lessor, and Ground Lessee dated September 18, 2008.
Section 1.6 Ground Lessee. The term "Ground Lessee" means Niemeyer Properties,
ILC, a Minnesota limited liability company.
Section 1.7 Lot and Lots. The term "Lot" shall mean: (i) initially, each of Lots 1,2,3,
Outlot A and Outlot B of the Subject Propeltyi and (ll) tb.eIeafter, as and at such times as such
Lots may be further subdivided, a separately subdivided parcel of land within the Subject
Property.
Section 1.8 Lot 3 Owner. The term "Lot 3 Owner" shall mean the record owner,
whether one or more persons, of a fee simple interest in that certain parcel of land legally
described 88 Lot 3, Block 1 Niemeyer Trailer Sales (''Lot 3''), but excluding in all cases any
party holding such an interest as security for the performance of an obligation.
Section 1.9 Occqpant. The term "Occupant" shall mean any Person from time to time
entitled to the use and 0CCI.lp8D.Cy of any portion of any Lot, including the Owner of such Lot. the
employees, lessees, guests and invitees of such Owner or the employees, lessees, guests and
invitees of such lesaecs.
Section 1.10 Owner. The term "Owner" shall mean the record owner from time to
time, whether one or more Persona, of a fee simple interest in a Lot, but excluding in all cases
any party holding such an interest as security for the performance of an obligation.
Section 1.11 EInx. The term ''Party" refers to any Owner and their respective
succeason and assigns. Each Party shall be liable for the performance of all covenants,
obligations and undertakings herein set forth with respect to the Lot owned by it which acaue
during the period of such ownership, and such liability shall continue with respect to any portion
traD8ferIed until the notice mquiIement set forth below is complied with, at which time the
transferring Party's liability for future obligati0D8 shall terminate
Section 1.12 Penon. The term "Person" shall mean an individual. corporation,
partnership, limited liability company, trust or other legal entity.
Section 1.13 Private S~t. The term "Private Street" means Outlot A, Niemeyer
Trailer Sales.
ARTICLED
GRANT 01' EASEMENTS, MAINTENANCE
Section 2.1 Grant of F~t The Owner of Lot 3 hereby grants, for the benefit of
Lots 1 and 2, a non-exclusive easement and covenant for the drainage of water upon, and
retention of water within that portion of Lot 3 shown on Exhibit 1\ attached hereto and made a
83540-001\1155868.doc
2
part hereof designated as "Depression Area", "Pond 1," "Pond 2" and related storm. sewer
pipiDa (collectively, the "Retention Area") subject to the terms and conditious hereof. The Lot 3
Owner shall, at its sole cost, excavate and grade the Retention Area in accordance with the
Development Agreement and all applicable laws. codes and onlinanc:es and install related storm
water piping, and thereafter, operate and maintain the drainage and retention facilities on Lot 3 in
accordance with all applicable laws, codes and ordinances. Upon the substantial completion of
such excavation, gradinJ, and stom water piping installation, no Owner shall alter or permit to
be altered the c:ontoul1 and depth of the retention paICcl facilities in the Retention Area or
otherwise on the Subject Property. A perpetUal, non-exclusive easement and covenant is hereby
granted and established by Declarant, to and for the benefit of the Subject Property, over, ac;:ross
and under the Subject Property for the purpose of ingress and egress for maintenance and repair
of the Drainage and Storm Sewer facilities.
S~on 2.2 MaintMAn~ Obliptiona. The Lot 3 Owner shall perform all
maintenance, repair and repla<:emcnt of the Drainage and Storm Sewer Facilities. Bach Owner
shall reimburse the Lot 3 Owner for the cost of the Work (the "Maintenance Costsn). The Lot 3
Owner may bill each Owner for the cost of the Work, from time to time, when such costs IRl
incurred. Bach such bill shall be itemized and shall include copies of such invoices or other
SOUl'CC documents reuonably necessary to verify the nature and amount of such costs. Payment
of each bill shall be due within thirty (30) days after the date of delivery thereof. The Lot 3
Owner may include, as a cost of the Work, an "Adminilltrative Charge" not to exceed five
percent ('~) of the costs of said WOIt, which charge sball be in lieu of any other charge for
1J18Dll&CIDeDt, adminiatration, supervision, ovcd1ead or profit or sinUllM' item. The term "W0Ik"
shall mean any construction, installation, main~ance, repair, cleaning, replacement, alteration,
modification, demolition, reconstruction or reinstallatlon of any Drainago and Storm Sewer
Faci1ities.
Section 2.3 ProJ>ortionate Shfre of MAinten8~ Costs. The Maintenance Costs shall
be allocated to, and paid by, the Owner of each Lot based such Lot's Proportionate Share. The
initial proportionate shIRl of each Lot is Lot 3, SO~, Lot 1, 2S~ and Lot 2, 2'~ (the
"Proportionate Share'').
ARTICLE m
PRIVATE STREET
Section 3.1 Maintmt8~ The Lot 3 Owner shall maintain and repair the Private
Street in a commercially reasonable manner. All reasonable costs and expenses incun'ed by the
Lot 3 Owner in paying real estate taxes on Outlot A and performing the mainteDance and repair
obligations set forth in this Section 3.1 shall be defined herein, collectively, as the "Private Street
Maintenance Costs". The obligation to share in the payment of the MainteDaDce Costs shall be
allocated as follows:
(a> The ~iDtonance Costs sball be aIloca1ed to, and paid by, the Owners of
each Lot that has access to the Private Street in accordance with each such Lot's
respective Proportionate Share.
83540-001\85S8l58.cIoo
3
(b) Periodically, (but not more frequently than once per calendar quarter) the
Lot 3 Owner shall provide each Owner with an invoice designllq the total amount of
MainteDanCe Costs incun'ed for such period and the amount of such Owner's
Proporticmate Share thereof. Bach such Owner shall reimburse the Lot 3 Owner for such
Owner's Proportionate Share of Maintenance Costs within thirty (30) days after receipt of
such invoice.
Section 3.2 Termination. The obligations of the Parties pursuant to this Article m
shall ~itllltc as of the date the Private Street is dedicated to the City pursuant to the
Dcvc10pment Agreement and accepted by the City.
ARTICLE IV
DEFAULT: FAn..VRE TO PAY AMOUNTS DUE.
Section 4.1 Default. If an Owner fails to mate any payment when due to the Lot 3
Owner, as required under this Agreement. and such failure continues for a period of fifteen (IS)
days after written notice by the Lot 3 Owner, then the Owner failing to make such payment shall
be in default of this Agreement.
Section 4.2 Default: Failure to Perfopn: Self.HeW Remedy. If an Owner fails to
perform or comply with any term, condition or obligation of this Agreement, other than a
payment default pursuant to Section 4.1 above, and such failure continues for thirty (30) days
after receipt of written notice from any other Owner (or such longer period as may be reasonable
under the circumstances if the failme caunot be cured within thirty (30) days and the Owner
failing to perform commences to cure within such time period and diligently and continuously
prosecutes such cure to completion), then the Owner failing to perform shall be in default of this
Agreement. Upon such default, the Owner providing written notice hereunder may proceed to
cure the default by payment or performance. The defaulting Owner shall immediately reimburse
the Owner curing the default for all reasonable costs and expenses incurred to cure the default.
The thirty (30) day notice period shall not be required in the event of an emergency condition, in
wbich event the Owner curing the default shall give whatever notice is :reasonable under the
ciIcumstanccs. Nothing contained in this Section shall aeate any obligati~n on the part of any
Owner to exClCise the rights granted herein or perform another Owner's obligations.
Section 4.3 Reimbursement: Lien Rights. An Owner shall have a lien in its favor
upon the Lot of an Owner who is in default of this Agreement to secure all amounts payable
hereunder. The lien shall attach upon filing or recording of a notice or statement thereof in
Office of the County Recorder of Wright County.
Section 4.4 Coats and Attorneys' Fees. In the event any Party shall institute any
action or proceeding against another Party relatins to the provisions of this Declaration, or any
default thereunder or to collect any amounts owing hereunder, or an arbitration proceed"'8 is
commenced by agreement of the Parties to any dispute, then and in such event the unsuccessful
litipnt in such action or proceeding agrees to reimburse the succcssfullitigant in such action or
~i"g for the reasonable expeuses of attomeys' fees and disbursements incurred therein by
83S40-001\W868.doc
4
the successfullitipnt. including such costs and expenses incumcl in connection with any such
action or ~in8 and any appeals thermom.
Section 4.S Remedies. All remedies are cumulative and shall be deemed additional to
any and III other remedies to which an Owner may be entitled to at law or in equity. Bach
Owner shall also have the riabt to restrain by injunction any violation or threatened violation by
another of the terms, covenants or conditions of this Agreement. or to obtain a decree to compel
performance of any such tem1, covenant or condition, it being agreed that the remedy at law for a
breach of any such term. covaumt or condition (except those, if any. requirinc the payment of a
liquidated sum) is not adequate. No default under this Apeement shall entitle any Person to
cancol, resciDd. or otherwise termin~ this Agreement. Notwitbstendi11g anything to the
contrary contaiDcd bcrcin, in the event an Owner recovers a money judgment against a defaulting
Owner under this Agreement. the j'utlgmeDt shall be satisfied only out of the right, title and
interest of the defaultiDa Owner in the Property; provided that the foregoiDa shall not limit any
right that an Owner might have to obtain injundive relief or to maintain any suit or action in
connection with the enforcement or collection of cIamqes to the extent that such damages lie
payable under policies of liability insurance "lIintained by an Owner. Bach Owner agrees that
there shall be no individual liability of any partners. officers, diIecton, shareholders or
employees of an Owner with respect to any claims under this Agreement and expressly waives
any and all rights to proceed. against such parties.
ARTICLE V
NO LIENS
Section S.l 1Ja.. No Party (for purposes of this Section 3.1, a ''Contracting Party")
shall permit, cause or suffer any mechmic's or materialmen's lien to be filed against any other
Lot in connection with or as a result of any work performed or supplies provided at the behest of
the Contracting Party. Without limitins the foregoing, if any such lien is filed, the Contracting
Party pemaittiqg, causing or suffering such lien to be so filed shall cause the lien to be discharged
within fifteen (IS) days after entry of final judgmePt (after all appeals) for the foreclosure of the
lien. Upon request of any Owner whose Lot is subject to a filed mechanic's or materialmen's
lien, the Contr8CtiDg Party permittiDg or causing such lien to be so filed shall cause the lien to be
released and discharged of record. either by paying the indebtedness which gave rise to the lien
or by posting a bond or other security as required by law to obtain such release and discharge.
Providecl that such Contracting Party so posts such bond or other security, the Contracting Party
shall have the right to contest the validity, amount or applicability of any such lien by
appropriate proceecUnp so long as it diligently prosecutes the centest in good faith to
conclusion. The Contractina Party agrees to defend, ~ify and hold the Owners and their
Lots harmless from and against III claims, costa, liabilities and expenses. including reasonable
attorneys' fees, arising out of or resulting from such lien.
ARTICLE VI
CITY'S RIGHTS
Section 6.1 Default: ~Ilh~ of City of Albertville. The parties acknowledge and agree
that this Declaration is subject to the Development Agreement. If the City believes that the Lot 3
m4().OOl\llSSllC58.c1oc:
S
Owner has not performed its obligations pursuant to the Development Agreement, the City shall
live thirty (30) days written notice of such failure (the "Default Notice") to the Lot 3 Owner. If
such default is not cured within thirty (30) days after receipt of the Default Notice. the City shall
have the r.ipt, but not the obligation. to enter onto the Subject Property and cum such default.
The City may specially assess the Lots. to collect any amounts due to the City in connection with
its cure of a default pursuant to this Section 6.1.
ARTICLE VII
PERFORMANCE BY GROUND l.ESSEE
Section 7.1 Pctd'orm~ by Grc;Mmd Lessee. It is Wlderstood and agreed that all
obligations of Declarant and the Lot 3 Owner under this Apeement shall be performed by
Ground Lessee and no Owner 01' any other Person shall have the right to enforce any of the terms
of this Declaration against Declarant until such Owner or other Person has served notice of
default upon Ground Lessee and Ground Leasee has failed to cure such default within the time
period permitted by this Declaration. If, at any time, Ground Lessee purchases the Subject
Property from Declarant, Declarant shall be released from its obligations and the obligations of
the Lot 3 Owner under this Agreement as to matters arising from and after the date of the
conveyance to Ground Lessee.
ARTICLE vm
MISCELLANEOUS
Section 8.1 l)indinr Effect: CoVml8nta Rnnnin, With lAnd.. Except as expressly set
forth herein, the easements. covenants, conditions and restrictions described and set forth in this
Declaration will be perpetual from the Effective Date, unless subsequently temliDated or
amended by the unanimous written apcment of the Owners of the Lots and with the c:onacnt of
the holders of all mortgages. docda of trust or similar security instruments of record with respect
to such Lots. Except as set forth above, no such termination or amendment shall require the
signature 01' consent of any other Person, including without limitation. any tenant, subtenant or
licensee of any portion of the Subject Property. It is the intention of the Parties that the rights
and oblisations set forth in this Declaration be construed and enforced as covenants rwming with
the Lots describecl herein, and that they be biDdina upon and inure to the benefit of the Owners
from time to time of such Lots and their respective heirs. rep1'eSCl1tatives. successors and assigns.
NotwitbJumdit'g any other provision of this Declaration, no Person shall have any obligation or
liability under this Declaration. except to tho extent such obligation or liability Irises or accrues
during the period of ownership by such Person of legal 01' equitable title to all or any portion of
the Subject Property.
Section 8.2 Enforceability. The provisions of this Declaration are for the benefit of
the Owners of Lots as expressly set forth herein. No Occupant or other Person (except the
Owners and their mortPlee8 and the City of Albertville) shall have any rishts to enforce. or be
deemed a third party or other intended 01' unintended beneficiary of, any of the provisions
contained herein.
Section 8.3 Severability. Invalidation of any of the provisions contained in this
Declaration, or of the application thereof to any Person, by judgment or court order, shall in no
8354Q.OO1W55868.doc:
6
way affect any of the other provisions of this Declaration or the appllcation to any other Person.
and the same shall remain in full fOlm and effect.
Section 8.4 Waiver. Pailure to enforce any covenant or condition of this Declaration
shall DOt be deemed to be a waiver of the right to do so thereafter. No waiver by any Person of
any covenant or c:ondition of this Declaration shall be effective or binding on such Person unless
made in writina and no waiver shall be implied from any omission by a Penon to take action
with respect to such covenant or condition. The express written waiver of any covenant or
condition shall not be a waiver of any other covenant or condition or cover any other period of
time except for the c:oveuant or condition and/or period of time specified in such express waiver.
Section 8.S N~ of PartnershiP or Joint Venture.. None of the terms or provisiOl18
of this Declaration sball be deemed to create the relationship of principal, agent. partnership or
joint venture between or among the Owners.
Section 8.6 Not a Public Dedication. Nothing contained herein shall be deemed to be
a gift or dedication of any portion of the SUbject Property to the general public for any public use
or purpose whatsoever, and all Owners shall take such reasonable measures u may be necessary
to prevent any such dedication.
Section 8.7 Oovemin, Law. This Declaration shall in all respects be interpreted,
construed and enforced according to the laws of the State of Minnesota., in:eapective of its choice
of law provisions.
Section 8.8 Siqular Rnd Plmal. Whenover requked by the context of this
Declaration. the aingular shall include the plural, and vice versa, and the masculine shall include
the mnirdue and neuter genden, and vice versa.
Section 8.9 C.tions. The captions and headings contained in this Declaration are for
convenient reforonco only and shall not affect the interpretation of this Declaration.
Section 8.10 Recitals. The Recitals are intended to be a part of this Declaration u if
ful]y set forth herein.
Section 8.11 Amendment. 1bia Declaration may not be amended or terminated without
the prior written consent of an of the Lot Owners and the City. and change to the maintenance
obligations established herein may not be made without the prior written consent of the City and
the Lot Owners.
Section 8.12 Noticef. Any and all notices or other communications required or desired
to be given under this Declaration &ball be in writing and shall be deemed given, effective and
received on (a) the date of personal delivery; (b) ten (10) days after deposit in the United States
mail. postage prepaid. repstared or certified maiL IetUm receipt requested; or (c) one (1)
business day after deposit with a national overnight courier, fees prepaid to Declarant at the
following address:
13540-001\855868 cIoo
7
WBU..ERSON UP
c/o Peter Larson
2099 66th St. NW
Maple Lake, Minnesota SS3S8
Metcalf, Larson & Muth
313 West Broadway Stteet, P.O. Box 446
Monticello, Minnesota SS362
Attention: Bradley V. Larson
Copies of all notices to Declarant shall be copied to Ground Lessee at the following address:
Declarant:
With a copy to:
With a copy to:
Niemeyer Properties, u.c
c/o Tim Niemeyer
79181ioy LIne
Maple Grove MN SS311
Fabyuake, Westra, Hart & Thomson, P.A.
800 LaSalle Avenue, Suite 1900
Minneapolis, Minnesota SS402
Attention: Judith E. Krow
Ground Lessee:
Any party may chanae its address by notice given in accordance with this Section. For
the purposes of this Declaration, a "business day" is a day which is not a Saturday, a Sunday or a
legal holiday of the State of MiDnesota.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
83540-001\85SI68.cIoc
8
SIGNATURE PAGE
TO
DECLARATION OF EASEMENT AND MAINTENANCE OBLIGATIONS
THIS DECLARA nON OF EASEMENT AND MAINTENANCE OBLIGA nONS has been
executed and delivered as of the date first above written.
Wellerson LLP, a Minnesota limited liability partnership
By:
Name:
Its:
STATE OF MINNESOTA )
\1-..1'0\ ~ rtT ) ss.
COUNTY OF ~ )
The ~~oing instrument was aclmowl$dged j>efore me this 4th day of vVf~
2009, by ~A C. Larsot'\., the i!t:.r1-~ of Weller son, LLP, aMi esota
limited liability partnership on behalf of said limited liability partnership.
~~
SALLY B. NELSON
NOT~RY PUBLIC - MINNESOT"
Mv Commiscion Er.pll~ Jan. 31,2010
~. . -:"':':':: . " '"">. ~"'.-..' _.~~
~',;.,'u;..~....
~~
N tarx Pu ic
JOINDER
The undersigned as Ground Lessee hereby joins in the foregoing Declaration of Easement and
Maintenance Obligations for the purpose of being bound thereby,
Niemeyer Properties, LLC, a Minnesota limited liability company
By: ~~~
i:.az1 %:~~~- <'--~'o -"'I 'i'e=
STATE OF MINNESOTA
)
)SS.
)
COUNTY OF H'ENAleOlh
,
The foregoing instrument was aclrn. owledged before me this ~ day of (f) ~
2009, by jll.~ -r1}e/~ , the Sz..c. . of Niemeyer Properties, LLC, aM' sota
limited liability company, on behalf of said limited liability company.
LISA N. THELEN
NOTARY PUBLIC. MINNESOTA
My Comnlsslon Expires Jan. 31,2010
~)
Notary Public
This instrument was drafted by
and should be returned to:
Fabyanske, Westra, Hart & Thomson, P.A. (JEK)
800 LaSalle Avenue South, Suite 1900
Minneapolis, MN 55402
(612) 359-7600
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