1991 Development Agreement
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DEVELOPERS AGREEMENT
WESTWIND SECOND ADDITION
THIS AGREEMENT, entered into this
day of
, 1991 by and between John F. Darkenwald,
individually and as President of John George, Inc., and
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George W. Yankoupe, individually and as Secretary/Treasurer
of John George, Inc., 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 and developer of a
parcel or parcels of land described in Exhibit "A", attached
hereto and incorporated herein by reference which parcels of
land are either already developed as a subdivision in the
City or are proposed for further subdivision and
development, and which subdivision, which is the subject of
this agreement, is intended to bear the name "Westwind
Second Addition" and may sometimes hereinafter be referred
to as the "Subject Property" or "Said Plat"; and
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WHEREAS, the City has given preliminary approval of
Developer's plat of "Westwind Second Addition" 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, sanitary sewer,
water, storm sewer and streets be installed to serve the
Subject Property and other properties affected by the
development of Developer's land, to be financed through
assessments levied upon the subject property under Chapter
429 of Minnesota Statutes; and
WHEREAS, the City further requires that certain on and
off-site improvements be installed by the Developer; within
the Subject Property, which improvements typically consist
of boulevards, boulevard top soil and sod, trees planted in
the front yards of those lots abutting the boulevards,
grading control per lot, bituminous or concrete driveway
approaches, drainage swales, berming, street signs, front
yard trees and like items, street cleanup during project
development, erosion control and a retention pond, and which
improvements to the Subject Property shall be referred to
herein as "escrow items"; and
WHEREAS, this Agreement is entered into for the purpose
of setting forth and memorializing for the parties and
subsequent owners, the understandings and agreements of the
parties concerning the development of the Subject Property;
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NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY
AGREED, in consideration of each party's promises and
considerations herein set forth, as follows:
1. Petition for Improvements. Developer herein
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petitions the City to construct those improvements set forth
in the Feasibility Study for the Westwind Second Addition,
as prepared by Meyer-Rohlin, Inc., and dated June 3, 1991,
attached hereto and marked Exhibit "B".
2. Waiver. Developer waives all right to a public
hearing and other statutory rights granted to a property
owner under Chapter 429 of Minnesota Statutes as the said
rights therein granted related to Petition Items as
described in Exhibit "B".
3. Petition Items. The City shall construct, at its
discretion, all or a portion of the Petition Items as shown
on Exhibit "B" pursuant to its regular methods of making
public improvements. The Developer agrees that special
assessments for said improvements may be levied by the City,
without Developer's objection, after construction is
commenced. Thereafter, the expense incurred or to be
incurred in making the improvement shall be calculated under
the direction of the Council. The Developer further agrees
that the City may recover its costs and expenses including
legal, fiscal, bonding, administrative and engineering, by
levy of said special assessments to be payable in equal
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principal installments together with interest thereon from
the date of the resolution levying the assessment as
determined by the City over a period of not more than
--fwdV'...... (-16....-> years.
4. Petition Items - Surety. The Developer agrees to
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pay sufficient amounts of special assessments each year, if
not already paid in prior years, for properties lying within
said plat to enable the City to pay any debt service
payments incurred as a result of the construction of the
Petition Items, including principal and interest, as such
payments come due. Any deficiencies in the amount paid by
the Developer for special assessments causing a shortage of
funds with which the City may timely pay the required debt
service payment(s) shall be supplemented with funds
withdrawn by the City from the Developer's approved letter
of credit or other surety furnished to the City. Any of
said surety or guaranty of funds referred to herein that are
withdrawn will be used by the City for payment of its herein
referred debt service payment when due. Upon the Developer
paying the delinquent special assessments, the City will
repay to the surety, to the extent that the delinquent
special assessments have been paid, the surety monies
withdrawn, less any costs incurred by the City in
conjunction with the said delinquent special assessments.
The Developer shall provide the City with cash,
approved irrevocable letter of credit or other satisfactory
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surety in the amount of
c1~ % of the estimated total
assessment resulting from the Petition Item improvements~
The said ~~ % surety is the guarantee referred to
earlier in this paragraph that sufficient revenue is
annually produced by the payment of special assessments to
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enable the City to pay the required debt service payment.
The City may draw on said surety for cash flow purposes to
supplement the Developer's payments when Developer is
delinquent in the payment of said special assessments.
5. On and Off-Site Improvements/Escrow Items: Surety.
Developer shall perform all on and off-site
improvements including boulevards, boulevard top soil and
sod, trees planted in the front yards of those lots abutting
the boulevards, grading control per lot, bituminous or
concrete driveway approaches, drainage swales, berming,
street signs, front yard trees and like items, street
cleanup during project development, erosion control and a
retention pond, and which improvements to the Subject
Property shall be referred to herein as "Escrow Items".
Developer will provide the City with cash, irrevocable
leT~r of C~dit or other satisfactory surety in the sum
s-1ll)OOD which figure represents ,2J % of the
estimated total assessment. The said surety shall be a
of
guaranty to the City that with the exception of boulevard
improvements (sod, trees, driveway approaches), the
construction and completion of the
Escrow items by the
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Developer, to the Ci~'s satisfaction, will be completed on
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or before ~'19~. The boulevard
improvements for each lot or parcel shall be completed to
the City's satisfaction within sixty (60) days of 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. CCh=IOB~K 1
and before .1k1.A-Rt1 H .30 in any given year, in which case
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the boulevard improvements shall be so completed by the
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following
At the City's option, it may
install street sign(s) and bill the direct cost of materials
and installation to the Developer who will pay the bill
within ten (10) days of the billing. That portion of said
cash, irrevocable letter of credit, or other surety which is
required with respect to the performance of on- and off-site
improvements shall be released upon certification of the
City Engineer and approval of the City Council that such
items are satisfactorily completed pursuant to this
Agreement. Periodically, as payments are made by the
Developer for the completion of portions of the items
described under "Escrow Items," and when it is reasonably
prudent, the Developer may request of the City that the
surety be reduced for that portion of the project which has
been fully completed and payment made therefor. 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 the billing.
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6. Surety Release. The developer may request of the
City a reduction or release of any surety provided for ih
conjunction with the Petition Items (described in Exhibit B)
and on- and off-site improvements (listed in paragraph five
above) as follows:
A. When another acceptable surety is furnished
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to the City to replace a prior surety.
B. When the final cost amount minus previous payments
becomes less than the surety provided, thus
allowing the surety to be reduced to a sum
commensurate with the remaining amount of the
project.
C. No reduction shall be made which would result
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in the surety held being less than ~~ % of
the original surety until the final costs are
known.
The surety will be released at such time as all
past, present, and future assessments related to
all Petition Items
all bonds
issued as a resu
Petition
and off-site
to the satisfaction of
the
certified as being complete by
the City Engineer.
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The City's costs for processing any reduction request
shall be billed at S ao per hour with a minimum of one
(1) hour per reduction, and shall be billed to the Developer
and paid to the City within thirty (30) days thereof.
7. Surety Deficiency. 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. If there should be
an overage in the amount of utilized security, the City
will, upon making said determination, refund to the
Developer any monies which the City has in its possession
which are in excess of the actual costs of the project as
paid by the City. All monies deposited with the City shall
be used by the City at the City's discretion to defray the
City's costs and expenses related to the project(s) referred
to herein.
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8. Abandonment of Pro;ect - Costs and Expenses. In
the event Developer should abandon the proposed development
of the Subject Property, the City's costs and expenses
related to attorney's fees, professional review, drafting of
this Agreement, preparation of the feasibility report, plans
and specifications, and any other expenses undertaken in
reliance upon Developer's various assertions shall be paid
by said Developer within thirty (30) days after receipt of a
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bill for such costs from the City. In the event that said
costs are not paid, the City may withdraw funds from any' of
the above-mentioned escrow funds for the purpose of paying
the costs referred to in this paragraph.
9. Developer To Pay City's Costs and Expenses. It is
understood and agreed that the Developer will reimburse the
City for all administrative, legal, and professional costs
incurred in the creation, administration, enforcement or
executing this Agreement.
10. Erosion and Siltation Control.
A. Financial Guarantee. Before any grading is
started on any site, all erosion control measures as shown
on the approved erosion control plan shall be installed. In
addition, a financial guarantee shall be provided to the
City to insure compliance during construction. This
financial guarantee, which is included as an Escrow Item in
Exhibit "_", will not be returned until all disturbed areas
have permanent vegetation re-established.
B. All erosion control measures recommended by the
City Engineer shall be strictly complied with as set forth
in Exhibit which is hereto attached and herein
incorporated by reference.
C. Developer shall cause to be constructed upon the
Westerly position of Said Plat a retention pond for run off
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from the developed plat. Said retention pond shall conform
with all requirements set forth by the City are shown in"
Exhibit attached hereto and herein incorporated by
reference. Developer shall comply with all requirements
concerning length of retention, design of the pond and
location and size of outlet. Developer further agrees to
provide permanent fencing, of acceptable amount and kind,
around the retention pond and also agrees to regular clean
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~u. ts of the pond once ev~ry -t ' , a~ _
1S complete. SJl+~ ~ 1+ ~
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- 1~. ~intain ~u lic Pro ert Dama ed or Clutter Durin
Construction. Developer agrees to assume full financial
responsibility for any damage which may occur to public
property including but not limited to streets, street sub-
base, base, bituminous surface, curb, utility system
including but not limited to watermain, sanitary sewer or
storm sewer when said damage occurs as a result of the
activity which takes place during the development of Said
Plat. The Developer further agrees to pay all costs
required to repair the streets and/or utility systems
damaged or cluttered with debris when occurring as a direct
or indirect result of the construction that takes place in
Said Plat. In the event the Developer fails to maintain or
repair the damaged public property mentioned above, the City
may undertake making or causing it to be repaired or
maintained. When the City undertakes such repair, the
Developer shall reimburse the City for all of its expenses
within thirty (30) days of its billing to the Developer. If
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the Developer fails to pay said bill within thirty (30)
days, the surety shall be responsible for reimbursing the
City therefor.
12. Street Section Grad1nq. While the development
site is being graded by Developer, an independent testing
firm, approved by the City, shall test the street section of
those parts of streets platted in Said Plat designated by
the City Engineer, so as to certify to the City that the
contractor is achieving 95% of the standard moisture density
relationship of soils with exception of the top three (3)
feet of the street section which shall be compacted to 100%
density. Fees paid to the independent testing firm shall be
paid by the Developer. The City's Engineer shall be
furnished, either directly by the testing firm or by the
Developer, a copy of the test results.
13. Temporary Easement Riqhts. Developer shall provide
access to the property at all reasonable times to the City
or its representatives for purposes of inspection or to
accomplish any necessary work pursuant to this agreement.
Developer further agrees to provide a temporary easement for
public use across portions of Said Plat described on Exhibit
hereto attached and herein incorporated by
reference. Said temporary easement is for purposes of city
work on that land previously dedicated as park land and for
public access to the same. This temporary easement shall
remain in force and effect until such time as the roadways
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as described in Said Plat are developed so as to provide
general access to the park land.
14. Miscellaneous. Developer agrees that all items
listed in this section are items for which he is responsible
for completing and all work shall be done at Developer's
expense:
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A. Developer shall assure that all applicable zoning
setback and other requirements are complied with within the
plat, or that procedures for variances are followed where
such defects cannot be reasonably cured.
B. Developer shall comply with all requirements set
forth for drainage into the county ditch 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 Developers expense.
15. Draw on Expirinq Letter of Credit. In the event a
surety or other form of guarantee referred to herein is in
the form of an irrevocable letter of credit, which by its
terms will become null and void prior to the time at which
all money or obligation of the Developer is 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
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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 continued obligation.
16.
Violation of Aqreement.
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. and
if such default is not cured within said thirty (30) day
period, the City is hereby granted the right and privilege
to declare any deficiencies governed by thi3 Agreement due
and payable to the City in full.
The thir~y
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Gay na~lce
pe=iod shall b~ dee~ed ~o run f=8ffi the date of ~ep sit in
tIle United States Mai:.
The City may thence immediately an~
without notice or consent of the Developer use al~ of the
deposited escrow funds, irrevocable letter of credit or
other surety funds to t:omp12te the De1;elcper's Qtligati':ns
as set forth herein, tJhethe= rela~2d to Peti~ic~
Improvements on- or off-site improvements. and tc 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.
Paragraph 16 shall not apply to any acts or rights of
the City under paragraph 15 above, and no notice need be
given to the Developer as a condition precedent to the Cit~-
declaring a default or dravling upon the expiring irrevocable
letter of credit as therein authorized.
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15.
Attornev's Fees.
The Developer will pay to the
City reasonable attorney's fees to be fixed by the Court in
the event a suit or action is brought to enforce the terms
of this Agreement or in the event an action is brought upon
a bond or letter of credit furnished by the Developer as
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provided herein.
16.
Notification Information.
Any notices to the
pa~ties herein shall be by registered mail addressed as
follOvls:
City of Albertville
c./o Cit"j Clerk
P. O. Eo:,: 131
Albertville, lfN
Telephone: (612)
55301
497-3384
John F. Darkenwald
or
George W. Yankoupe
John George, Inc.
7747 ~.E. Rive= Road
Elk River,
Telephone:
1'-I1\1 5 5330
(612) 441-3700
17.
Aqreement Effect.
This Agreement shall be binding
upon and extend to the representatives, heirs, successors
and assigns of the parties hereto.
CITY OF ALBERTVILLE
By
Its Hayor
By
Its Clerk
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JOHN GEORGE, INC.
By
John F. Darkenwald,
personally, and as President,
John George, Inc.
By
George W. Yankoupe,
personally, and as Secretary/
Treasurer, John George, Inc.
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