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2004-02-03 Master PUD/CUP .~ rtI o y ~~ RETURN TO: TRI COUNTY ABSTRACT & TITLE 921 FIRST ST N #200 PO BOX 1332 ST CLOUD MN 56302-1332 Doc. No. A 896395 OFFICE OF THE COUNTY RECORDER WRIGHT COUNTY, MINNESOTA Certified Filed and/or Recorded on 02-10-2004 at 04:00 Check#: 124051 Fee: $46.00 Payment Code 02 Addl Fee NS Larry A. Unger, County Recorder CITY OF ALBERTVILLE MASTER PLANNED UNIT DEVELOPMENT/ CONDITIONAL USE AGREEMENT SHOPPES AT TOWN LAKES ONE TIllS AGREEMENT, entered into this U day of fthVltlPv ,2004 by and between Contractor Property Developers Company, collectively referred to herein as "Developer"; and the CITY OF ALBERTVILLE, County of Wright, State of Minnesota, hereinafter referred to as "City"; WITNESSETH: WHEREAS, Developer is the fee owner of the real property described in the attached Exhibit A, which real property is proposed to be subdivided and platted for development, and which subdivision, which is the subject ofthis Agreement, is intended to bear the name "Shoppes at Town Lakes One" and shall hereinafter be referred to in its entirety as "Said Plat" or "Subject Property"; and WHEREAS, Developer has received [mal plat approval for 6 lots within Said Plat; and WHEREAS, this Agreement is entered into for the purpose of setting forth and memorializing for the parties and subsequent owners, the understandings and covenants of the parties concerning Said Plat and the conditions imposed thereon; and WHEREAS, approval of a Planned Unit Development is required to permit development of Said Plat in the maIll1er proposed by the Developer; and WHEREAS, the City has given preliminary approval of the Development contingent upon compliance with certain City requirements including, but not limited to, matters set forth herein; and 1 ~ ...' WHEREAS, the City requires that certain public improvements including, but not limited to bituminous street, sidewalk, trail(s), curb and gutter, grading, sanitary sewer, municipal water, storm sewer (hereafter "Municipal Improvements") be installed to serve the Development and other properties affected by the development of Developer's land, to be installed and fmanced by Developer; and WHEREAS, the City fi.rrther requires that certain on- and off-site improvements be installed by the Developer within Said Plat, which improvements consist of paved private streets, boulevards, top soil and sod, grading control per lot, bituminous or concrete driveways, parking lots, drainage swales, benning, street signs, street lights, street cleanup during project development, erosion control, and other site-related items; and NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in consideration of each party's promises and considerations herein set forth, as follows: 1. Planned Unit Development. Conditional Use and Variance. The Development is hereby allowed to be developed as a PlaIll1ed Unit Development with flexibility from the strict requirements of the City's Shoreline Regulations and Zoning Ordinance in relation to selected items detailed in this paragraph. A. The Developer is granted a conditional use to allow impervious surfaces to exceed the 25% maximum allowed under the City's shoreland ordinance provided Developer develops the property in accordance with the terms of this Agreement, and provided that Developer implements the following requirements as to all development which occurs on Said Plat: 1. No building shall exceed 25 feet in height, except the building to be placed on Lot 6, which shall not exceed 40 feet and 1 inch in height (as defmed under the City's zoning ordinance). Developer is hereby granted a variance from the height provision of the City's shoreland ordinance to allow the building to be constructed on Lot 6 to a height not to exceed 40 feet and 1 inch. 11. The City may impose reasonable building requirements on any building not detailed on the Exhibits attached to this Agreement in an effort to reduce visibility of the building from the public waters of adjacent shore lands by vegetation, topography, and building color. 2 ~ .' 111. For each lot upon which impervious surface will exceed 50% of the lot area, all buildings must be set back at least 300 feet from the ordinary high water mark of School Lake, or the Developer must implement and maintain rain gardens, depressions, storage and filtration systems in a manner that reduces the storm water runoff for each such lot to a total volume that would be achieved if the impervious surface lot coverage were less than 50% of the lot area B. Developer agrees that all buildings shall be constructed in the general vicinity of the building envelopes illustrated on the attached Exhibit B. The exact building placement/design shall be subject to site plan approval by the City Council except where specifically set out in this agreement. C. At the time of the recording of this Agreement at the Wright County Recorder's Office, Developer shall record a cross-parking easement which will allow mutual cross-parking between all lots in Said Plat. Such cross parking easements must meet the approval of the City Attorney as to form and content. D. Developer shall construct the number of parking stalls in the locations and dimensions as shown on the attached Exhibit B, plus the seven extra stalls required by Paragraph 1.P. of this Agreement. E. All minimum building setbacks shall be as follows: 1. For Lot 2, a minimum building setback of 20 feet from West Lake Town Drive and Linwood Drive right of ways shall apply. 11. For Lot 3, a minimum building setback of 25 feet from Wright County State Aid Highway 19 shall apply, provided Developer constructs the building shown on the attached Exhibit G in the configuration and of substantially the same materials as shown on the attached Exhibit G. 111. For Lot 4, a minimum building setback of 20 feet from Langford Drive and all private streets shall apply. IV. For Lot 5, a minimum building setback of 25 feet from the private street along the west property line and 30 feet along the north property line shall apply. v. For Lot 6, a minimum building setback of 29 feet, 4 inches from Langford Drive shall apply for the main portion of the building, provided that an attached structure as shown on the attached Exhibit B housing an indoor pool may be constructed 3 " .. at a minimum building setback of 20 feet from the right of way of Langford Drive. VI. F or any of the lots on Said Plat, if a minimum building setback along one of the private streets has not been otherwise specified, such minimum setback shall be at least 20 feet. F. Developer shall construct all private streets to a minimum width of 28 feet, face to face in the locations as shown on the attached Exhibit F. Parking shall be prohibited at all times on all private streets, and all private streets shall be posted with "no parking" signs installed by the Developer. G. Traffic access from Said Plat south to the Outlets at Albertville Second Addition plat shall be prohibited at the south west access point. Only north bound traffic from the Outlets at Albertville Second Addition plat to Said Plat shall be permitted at this access point. H. Developer shall maintain all private streets on Said Plat in a commercially reasonable manner such that the streets are paved and plowed at all times and such that cars and emergency vehicles can safely pass on said roads 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 which requires all six lots on Said Plat to maintain said private streets in a commercially reasonable manner as required by this Agreement. Such maintenance agreement must meet the approval of the City Attorney as to form and content and shall take the form of a Retail Owners' Association. Upon recording of such documents and activation of the Retail Owners' Association, Developer shall be relieved of the maintenance of such private streets except to the extent Developer's maintenance obligations arise under the Retail Owners' Association by virtue of Developer's ownership of property subject to such Retail Owners' Association documents. 1. In the event the private streets are not maintained in accordance with this Agreement such that said private streets pose a safety hazard to the general public, the City shall provide forty-eight hours notice of deficient maintenance to the owners of all of the lots in Said Plat, after which time the City may immediately require that commercial business not be transacted on any lot in Said Plat to which access remains impaired or unsafe. J. The Retail Owners' Association shall maintain the infiltration plantingshshown on Exhibit C in good working order at all times. 4 \ ~ K. The uses on Lot 1 of Said Plat shall be limited to a restaurant permitted under the City's B-2A zoning ordinance. L. The uses on Lot 5 of Said Plat shall be limited to a "sit-down" (non-fast food) restaurant otherwise permitted under the City's B-2A zoning ordinance. No other type of use on said lot shall be allowed under this Agreement without a modification to this Agreement.. M. The use on Lot 6 shall be limited to a motel permitted under the City's B- 2A zoning ordinance. No other type of use on said lot shall be allowed under this Agreement without a modification to this Agreement. N. The uses on Lots 2, 3, and 4 shall comply with the City's B-2 A zoning ordinance except where flexibility from the provisions of such ordinance has been granted via this Agreement. O. A reduction of 24 parking stalls in combined parking on Lots 5 and 6 based on. the building square footages shown on the attached Exhibit B and based on the use of Lot 5 as a sit down restaurant and Lot 6 as a motel is hereby approved. P. For Lots 1, 2, 3 and 4, the combined parking requirements shall exceed those required in the B-2A zoning district by a total of 7 parking spaces as shown on the attached Exhibit B. Q. This Agreement does not constitute building or site plan approval for any particular lot in Said Plat, and Developer must obtain building and site plan approval for all buildings constructed on Said Plat. R. All uses on Said Plat shall comply with the City's B-2A zoning ordinance as amended from time to time, except where deviations from such requirements are specifically authorized by this Agreement. s. All grading, drainage, utility, wetland mitigation, and transpOliation issues that arise during development of the Development shall be subject to review and approval by the City Engineer. T. Trees, sIuubs, berms and screening are to be planted and installed as shown on the landscape plan attached as Exhibit C. The Developer shall guarantee that all new trees shall survive for two full years from the time the planting has been completed or will be replaced at the expense of the Developer. All landscaping as shown on attached Exhibit C shall be installed no later than October 31, 2005. 5 ~ ~ U. Developer shall replace, at its own expense, any plantings as shown on attached Exhibit C that might be damaged during the construction of any future buildings on Said Plat. Developer shall guarantee that all plantings replaced pursuant to this paragraph shall survive for two full years from the date of planting. v. Other Use Restrictions. On aU lots within 30 feet of any wetland, the native vegetation within said 30 feet of the wetland shall not be fertilized or mowed or otherwise disturbed. On all lots within 30 feet of any wetland, no structure, including, but not limited to, outbuildings or accessory buildings, fence, planting or other material shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities, or which may change the direction of flow or drainage chaIlllels in the easements, or which may obstruct or retard the flow of water through drainage channels in the easements. The easement area of each Lot including all improvements in it, shall be maintained continuously by the Owner of the Lot, except for those improvements for which a public authority or utility company is responsible. No Owner or other person shall apply any phospholUs- based fertilizers or herbicides within fifty (50) feet of any wetland or lake. 2. Construction of Municipal Improvements. A. The Developer shall construct those Municipal Improvements located on and off Said Plat as detailed in the Plans and Specifications for Shoppes at Town Lakes One, as prepared by Westwood Professional Services dated November 25, 2003 and on file with the City Clerk, said improvements to include installation of water mains, sanitary and storm sewers, and trail along CSAH 19. 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, 2004, with the wear course of bituminous pavement to be installed after May 15, 2005, but before August 15, 2005. B. The Developer warrants to the City for a period of two years from the date the City accepts the finished Municipal Improvements that all such 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. 6 ~ \f C. Developer shan provide the City with lien waivers from all contractors and subcontractors engaged to construct said improvements on Said Plat. Should Developer fail to provide the City with all applicable lien waivers, the City reserves the right to draw upon Developer's surety and pay any contractors who perfonned work on any Municipal Improvements and whom Developer has failed to fully pay for the penormance of said work. D. 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. 3. Construction of On- and OfT-Site Improvements. A. Developer shall construct all on- and off-site improvements including installation of paved streets, curb and gutter, sidewalks, boulevards, street signs, traffic signs, yard top soil, sod and seed in aU yards, grading control per lot, bituminous or concrete driveways and parking lots, drainage swales, berming, and like items as necessary, street cleanup during project development, and erosion control, all as required by City ordinance. All private streets shall be installed according to the plans and specifications for Shoppes at Town Lakes One, as prepared by Westwood Professional Services dated November 25, 2003 and on file with the City Clerk. All yard areas shall be sodded with grass or landscaped in accordance with the attached Landscaping Plan. In all cases permanent tun or grass must be established over all areas of the lot not covered by a hard or impervious surface. Said on- and off-site improvements shall be installed no later than October 31, 2004, with the exception of erosion control, drainage swales and berming, which shall be installed upon initial grading of Said Plat, and except that the parking lots for each of Lots 1, 2, 3 and 4 may be constructed when a building is constructed on such respective lot. 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 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: 7 ,~ 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 Sprint/United Telephone Company or other such carrier; IV. Cable TV service, to be provided by a local 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. c. Developer has submitted a utility plan for Said Plat showing all existing and proposed utility lines and easements, attached hereto and incorporated herein as Exhibit D. Developer agrees to have all utilities installed according to this Exhibit D. D. 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, electlical and cable television) have been installed, whichever occurs sooner. Developer shall abide by the City Engineer's requirements for silt fencing of the lots and access to the lots during building construction. E. Notwithstanding the requirements of subparagraph 3A above, the Developer shall install to the City's satisfaction improvements for each 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 the lot, unless the certificate of occupancy is issued after October I st and before March 30th in any given year, in which case a certificate of occupancy shall be issued if all on- and off-site improvements except landscaping and sod have been installed. In such cases, the Developer shall cause the required landscaping and sod to be installed by the first June 30th following the issuance of the occupancy permit. 4. Surety Requirements. 8 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 pelformed. Said letter of credit or surety shall be in the amount of $405,628.00 representing the sum of 100% of the estimated cost of the Municipal Improvements ($139,028.00), lOO% of the on and off-site improvements related to streets, ($116,600.00)) and 150% of the estimated cost for landscaping/screening materials ($150)000.00). 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, Municipal Improvements described above, erosion control) and other such measures), to pay liens on property to be dedicated to the City, to reimburse itself for costs incurred in the drafting, execution, administration or enforcement of this Agreement) to repair or correct deficiencies or other problems which occur to the Municipal Improvements during the warranty period, or to otherwise fulfill the obligations of Developer under this agreement. 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) 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. Ifthere 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 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. 9 ., 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 an such items are satisfactorily completed pursuant to this Agreement. F. In the event a surety referred to herein is in the fonn of an irrevocable letter of credit, which by its terms may become null and void prior to the time at which an 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 for the completion of portions of the Municipal Improvements and/or on- and off-site Improvements, and when it is reasonably prudent, the Developer may request of the City that the surety be proportionately reduced for that portion of the Municipal Improvements and on- and off-site improvements which have been funy completed and payment made therefor. All such decisions shall be at the discretion of the City Council. The City's cost for processing reduction request(s) shall be billed to the Developer. Such cost shall be paid to the City within thirty (30) days of the date of mailing of the billing. B. The Developer may request of the City a reduction or release of any surety as follows: 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 or the on- and off-site improvements have been installed, the letter of credit or surety may be reduced by the dollar amount attributable to that portion of improvements so installed, except 10 . that the City shall retain the letter of credit or surety in the amount of 10% of the estimated construction price of the Municipal Improvements during the first year of the warranty period and 5% of the estimated construction price of the Municipal Improvements during the second year of the warranty period. Developer may substitute a warranty bond acceptable to the City Attorney for the warranty letter of credit in the same amounts and duration as required for the warranty letter of credit. 111. As to all requests brought under this paragraph, the City Council shaU 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. Abandonment ofProiect - Costs and Expenses. In the event Developer should abandon the proposed development of the said Plat, the City's costs and expenses related to attorney's fees, professional review, drafting of this Agreement, preparation of the feasibility report, plans and specifications, and any other expenses undertaken in reliance upon Developer's various assertions shall be paid by said Developer within thirty (30) days after receipt of a bill for such costs from the City. In addition, in the event the Developer abandons the project, in whole or in part, ceases substantial field work for more than nine (9) months, fails to provide sufficient ground-cover to prevent continuing soil erosion from the Development, 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 the Development to the point where undeveloped grounds are level and covered with permanent vegetation sufficient to prevent continuing soil erosion from the Development and to facilitate mowing of the Development. In the event that said costs are not paid, the City may withdraw funds from the above- mentioned surety for the purpose of paying the costs referred to in this paragraph. 7. Developer to Pay City's Costs and Expenses. It is understood and agreed that the Developer will reimburse the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this 11 ~, Agreement and the approval of the Development, as well as all reasonable engineering expenses incurred by the City in designing, approving, installing, and inspecting said Improvements described above. Developer agrees to pay all such costs within 30 days of billing by the City. If Developer fails to pay said amOlmts, Developer agrees to allow the City to reimburse itself from said surety and/or assess the amount owed against any or all of the Development without objection. Developer has the right to request time sheets or work records to verify said billing prior to payment. 8. Development Related Fees and Credits. A. Sanitary Sewer and Water Trunk Line Fees. Developer agrees that the City's Sanitary Sewer Trunk Line Fee Ordinance and Water Trunk Line Fee Ordinance currently requires the Developer to pay $1,400.00 per acre and $1,200.00 per acre respectively, upon development of said Plat. There are 9.6 acres in said Plat which received final plat approval. Therefore, the Sanitary Sewer and Water Trunk Line Fees for all property receiving final plat approval is $24,960.00 ($11,520.00 in sewer fees calculated as $1,400.00 x 9.6 acres and $13,440.00 in water fees calculated as $1,200.00 x 9.6 acres). 9. Erosion and Siltation Control. Before any grading is started on any site, an 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 E. Developer shall also install all erosion control measures deemed necessary by the City Engineer should the erosion control plan prove inadequate in any respect. 10. Ditch Cleanin2. Developer shall comply with all requirements set forth for drainage into any county 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 or city requirements, all at Developer's expense. 11. Maintain Public Property Damae:ed or Cluttered Durine: 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 12 " the activity which takes place during the development of the Development. The Developer further agrees to pay all costs required to repair the streets, utility systems and other public property damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in the Development. Developer agrees to clean the streets on a daily basis if required by the City. Developer further agrees that any damage to public property occurring as a result of construction activity on the Development 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 Development 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 immediately undertake making or causing it to be cleaned up, repaired or maintained. When the City undertakes such activity, the Developer shall reimburse the City for all of its expenses within thirty (30) days of its billing to the Developer. Ifthe Developer fails to pay said bill within thirty (30) days, then the City may specially assess such costs against the lots within the Development and/or take necessary legal action to recover such costs and the Developer agrees that the City shall be entitled to attorneys fees incurred by the City as a result of such legal action. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. 12. Temporary Easement Ri2!hts. Developer shall provide access to the Development at all reasonable times to the City or its representatives for purposes of inspection or to accomplish any necessary work pursuant to this Agreement. 13. Miscellaneous. A. Developer agrees that all construction items required under this Agreement are items for which Developer is responsible for completing and all work shall be done at Developer's expense. B. If any portion, section, subsection, sentence, clause, paragraph or phrase of this Contract is for any reason held invalid by a Court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this Contract. 13 ,- C. Ifbuilding permits are issued prior to the completion and acceptance of public improvements, the Developer assumes all liability and the costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, Developer, its contractors, subcontractors, materialmen, employees, agents, or third parties. D. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City CounciL The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. E. This Contract shall run with the land and shall be recorded against the title to the property. After the Developer has completed all work and obligations required of it under this Contract (including the expiration of the warranty period), at the Developer's request, the City will execute and deliver to the Developer a release of its obligations under this Agreement. However, all continuing obligations under this Agreement shall remain binding upon the properties covered by this Agreement and their owners. Said continuing obligations include, but are not limited to, paragraphs 1, 7, 13, 15, 17, 18, 19,20,21,22,23,24 and 25 of this Agreement. F. The Developer represents to the City that the Development 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 the Development does not comply, the City may, at its option, refuse to allow construction or development work in the plat until the Developer so complies. Upon the City's demand, the Developer shall cease work until there is compliance. G. Prior to the execution of this Agreement and prior to the start of any construction on the Development, Developer shall provide the City with evidence of good and marketable title to all of the Development. 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. 14 H. Developer shall comply with all water, ponding and wetland related restrictions, if any, required by the Wright County Soil and Water Conservation District and/or the City and any applicable provisions of State or Federal law or regulations. I. The Albertville City Council reserves the right to allocate wastewater treatment capacity in a manner it finds to be in the best interests of the public health, safety-and welfare. Developer acknowledges and agrees that the City is currently in the process of expanding its wastewater treatment plant capacity. Developer further acknowledges and agrees that delay in the availability of wastewater treatment plant capacity may occur for some lots located within the Development depending upon when building permits are applied for and that such delay in capacity availability may also delay the issuance of building permits for some lots within the Development. 1. 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. K. Developer shall obtain all required driveway, utility and other pennits as required by either the City Engineer, Wright County and/or the State of Minnesota. 14. Draw on Exvirin2 Letter of Credit. 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 completed, 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 expiring letter of credit. If a new letter of credit is not received as required above, the City may 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 15 continued obligation. The form of said irrevocable letter of credit must be approved by the City Attorney prior to its issuance. 15. Violation of Ae:reement. A. In the case of default by the Developer, its successors or assigns, of any of the covenants and agreements herein contained, the City shall give Developer thirty (30) days mailed notice thereof (via certified mail), and if such default is not cured within said thirty (30) day period, the City is hereby granted the right and the privilege to declare any deficiencies governed by this Agreement due and payable to the City in full. The thirty (30) day notice period shall be deemed to run from the date of deposit in the United States Mail. Upon failure to cure by Developer, the City may thence immediately and without notice or consent complete some or all of the Developer's obligations lmder 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 the Development pursuant to the terms of this agreement. B. Notwithstanding the 30-day notice period provided for in paragraph 15(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 all 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 hann 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 15A of this Agreement shall not apply to any acts or rights of the City under paragraph 4F, and no notice need be given to the Developer as a condition precedent to the City drawing upon the expiring irrevocable letter of credit as therein authorized. The City may elect to give notice to Developer of the City's intent to draw upon the surety without waiving the City's right to draw upon the surety at a future time without notice to the Developer. D. Breach of any of the tenns of this Contract by the Developer shall be grounds for denial of building permits. 16 16. Dedications to the City. A. Municipal Improvement Dedications. The Developer, upon presentation to the City of evidence of good and marketable title to the Development, and upon completion of all construction work and certification of completion by the City Engineer, shall dedicate all trail right-of-ways to the City. Upon acceptance of dedication, Developer shall provide to the City "As- Builts" of all sewers, water mains, and roads. Acceptance by City of any dedication shall occur upon passage of a resolution to such effect by the City COlU1ciL B. Park Dedication. The City agrees that the Developer has fully satisfied its park dedication fee obligations with the park dedications made by Developer pursuant to the Towne Lakes Third Addition Plat 17. Phased Development. Approval of this phase of the Development shall not be construed as approval of fuhrre 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. 18. Indemnity. Developer shall hold the City and its officers and employees harmless from claims made by Developer and third parties for damages sustained or costs incurred resulting from the Development approval and development. The Developer shall indemnify the City and its officers and employees for all costs, damages or expenses which the City may payor incur in consequence of such claims, including attorney's fees. Third parties shall have no recourse against the City under this contract. 19. Assil!nment of Contract. 17 ~ The obligations of the Developer under this Contract can be assigned by the Developer. However, the Developer shall not be released from its obligations under this contract without the express written consent ofthe City Council through Council resolution. 20. Limited Approval. Approval of this Agreement by the City Council in no way constitutes approval of anything other than that which is explicitly specified in this Agreement. 21. Professional Fees. The Developer will pay all reasonable professional fees incurred by the City as a result of City efforts to enforce the terms of this Agreement. Said fees include attorney's fees, engineer's fees, planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. The Developer will also pay all reasonable attorney's and professional fees incurred by the City in the event an action is brought upon a letter of credit or other surety furnished by the Developer as provided herein. 22. Plans Attached as Exhibits. 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. 23. 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 and signed by a duly authorized agent of both parties. 24. Notification Information. Any notices to the parties herein shall be in writing, delivered by hand (to the City Clerk for the City) or registered mail addressed as follows to the following parties: City of Albertville clo City Clerk 18 . P.O. Box 9 Albertville, MN 55301 Telephone: (763) 497-3384 Contractor Property Developers Company Attn: Homer Tompkins, President 3030 Centre Pointe Drive, Suite 800 Roseville, MN 55113 Telephone: (651) 556-4550 Fax: (651) 566-4551 25. Ae:reement Effect. This Agreement shall be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. CITY OF ALBERTVILLE, ,.~ Jrt- By \ )6'-- \~ <Cj[----\ -' -~ Its Mayor ~Inn By ~ .\'Yl~ Its lerk CONTRACTOR PROPERTY DEVELOPERS COMPANY By STATE OF MINNESOTA) ) ss. COUNTY OF WRlGHT ) 19 The foregoing instrument was acknowledged before me this J~ day of r ~ ' 2004, by Donald Peterson 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. 7AJtJ C (~\ Notary Public STATE OF MINNESOTA) ) ss. COUNTY OF WRIGHT ) ~'N'J~'1\'\f-u!'i';t~"Ij'.","\r.,"'F"!'!R{.>A.I~, ,> 1\,'1CHf'l,~L C eQURI ~ ~ ?zll rJQTARY PUBLIC - ;""rmtSOTA ~ ~ ....~.?Il My Comm. Exp, Jan 31, 2005;~ t~~:10'~~th.'\~G\1rfft""vil.9'Q~~~1.~.^'f~'60,1JlJ15~71$6'~ "':)J"& The foregoing instrument was acknowledged before me this v day of / d , 2004, by Bridget Miller, as Clerk of the City of Albertville, a Minnesota municipal corporation, on behalf of thej city and pursuant to the authority of the City Council. ;/) ~ / ! (;&euP ~ Notary Public' STATE OF MINNESOTA ) ) ss. COUNTY OF WRlGHT ) ...,._.."......>>...~"....Av..v-..<'N'AVt:'...W#...I. I e fN<<lL M. Sl:VERSaI <...,,,,; IIl1TAIlYI'lJU ~'l... w ~roMMl5SI0IUX1'l1lES1.J1.mI .~. The foregoing instrument was acknowledged before me this z,l)"j.t day of 0~NU~R~ , 2004, by Homer H. Tompkins III, as President of Contractor Property Developers Company. ~tJb. ~Jk~/l No ~ Public DRAFTED BY: Couri and MacArthur Law Office P.O. Box 369 705 Central Avenue East St. Michael, MN 55376 20 ~ I (763) 497-1930 21 . . EXlllBIT A TO DEVELOPER'S AGREEMENT The legal description of the Plat to which this Developer's Agreement applies is as follows: Lots 1-6, Block 1 All said property is located in Shoppes at Town Lakes One, City of Albertville, County of Wright, Minnesota. 22 . EXHIBIT l D :I B ~.. ~ ' .' I, -'-( ,~~ .... ," i -.- CevdDp:tne\t SlIIrlIZUrl !ole '.... 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