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No Date Development Agreement /,/:'tl ~' :t~ DEVELOPERS AGREEMENT I 'WESTWIND SECOND ADDITION ) l~' .. THIS AGREEMENT, entered into this day of l ' , 1991 by and between John F. - Darkenwald, , individually and as President of John George, Inc., and 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 WHEREAS, the City has given preliminary approval of Developer's plat of "Westwind Second Addition" contingent upon compliance with certain ~ity 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, sod and like items, street cleanup during project development, erosion control and siltation and retention ponds, 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~ NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in consideration of each party's promises and considerations herein set forth, as follows: .~~. (f 1. Petition for Improvements. Developer herein pet~tions the City to construct those improvements (hereinafter referred to as "Petition Items") 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 relate 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 ievied 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 related to the construction including le~al, fiscal, bonding, administrative and engineering, by levy of said special assessments to be payable in equal 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 twelve (12) years. 4. Petition Items - Surety. The Developer agrees to 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 surety in the amount of twenty-five percent (25%) of the estimated total assessment resulting from the Petition Item improvements. - 2 - ., .\ The said twenty-five percent (25%) surety is the guarantee referred to earlier in this sectLon that , sufficient revenue is annually produced by the payment of special assessments to 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. On and Off-Site Improvements/Escrow Items: The said surety shall be a 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 Developer, to the City's satisfaction, will be completed on or before October 1, 1994. 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 loti unless the certificate of occupancy is issued after October 1st and before March 30th in any given year, in which case the boulevard improvements shall be so completed by the following June 15th. At the City's option, it may install street sign(s) and bill the direct cost of ~aterials and installation to the Developer who will pay the bill within ten (10) days of the billing. - 3 - -: ~^ -,,,. ., f' ...! . 'B. That portion of said cash, i~revocable 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. Pe~iodically, as payments are made by the Developer for the completion of portions of the items described unde~"Escrow Items," and when it is reasonably prudent, the Develope~ 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 ~eduction 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. 6. Surety Release. The developer may request of the City a reduction or release of any surety provided fo~ in conjunction with the Petition Items (described in Exhibit B) and on- and off-site improvements (listed in section five above) as follows: A. When another acceptable surety is furnished to the City to replace a prior surety. B. When the final cost amount minus previous payments becomes less than the su~ety 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 in the surety held being less than thi~ty-five percent (35%) of the original surety until the final costs are known. D. The Developer may petition the City Council fo~ a ~eduction o~ release of that portion of the surety attributable to the Petition Items at such time as seventy-five percent (75%) of the properties to be assessed as a result of the const~uction of the Petition Items either: (1) are clea~ of all past, present, and future assessments due, or (2) are no longer owned by John George, Inc., and the current owner has been issued a ce~tificate of occupancy by the City fo~ the residence built upon the property. The City Council may consider such a request, but the Council shall have the right to deny such request in the exercise of its discretion. The City's costs for processing any reduction request shall be billed at $30 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. - 4 - , . . I 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. 8. Abandonment of Project - Costs and Expenses. In the event Developer should abandon the proposed development of the Subject Property, the City's costs and expenses related to attorney's fees, professional review, drafting of this Agreement, preparation of the feasibility report, plans and specifications, and any other expenses undertaken in reliance upon Developer's various assertions shall be paid by said Developer within thirty (30) days after receipt of a bill for such costs from the City. In addition, in the event the Developer abandons the project, in whole orin part, ceases substantial field work for more than nine (9) months, or fails to provide su~ficient groundcover to prevent continuing soil erosion from the Plat, Developer agrees to pay all costs the city may incur in taking whatever action is reasonably necessary to provide groundcover and otherwise restore Said Plat to the point where undeveloped grounds are level and covered with permanent vegetation sufficient to prevent continuing soil erosion from the Platted properties. 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 execution of 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. The financial guarantee for this purpose shall be the same surety as described in paragraph five above. No portion of this surety shall be returned until all disturbed areas have permanent vegetation re-established. - 5 - ~ . . B. All erosion control measures recommended by the City Engineer shall be strictly complied with as set forth in Exhibit "C", which is hereto attached and herein incorporated by reference. C. Developer shall cause to be constructed upon the Westerly portion of Said Plat retention and siltation ponds for run off from the developed plat. Said ponds shall conform with all requirements set forth by the City as shown in Exhibit "D" attached hereto and herein incorporated by reference. Developer shall comply with all requirements concerning length of retention, design of the ponds and location and size of outlets. Developer shall construct a siltation pond adjacent to said retention pond, and shall so contour the land such that water drainage from Said Plat first flows into said siltation pond, allqwing waterborne soil and silt to deposit in such siltation pond before said water drains into the retention pond, all according to specifications as approved by the United States Army Corps of Engineers. Developer shall clean the retention and siltation pond of excess particles, including soil, silt and phosphates during and/or upon pompletion of the construction phase. 11. Maintain Public Property Damaged or Cluttered During Construction. Developer agrees to assume full financial responsibility for any damage which may occur to public property including but not limited to streets, street sub- base, base, bituminous surface, curb, utility system (including but not limited to watermain), sanitary sewer or storm sewer when said damage occurs as a result of the activity which takes place during the development of Said Plat. The Developer further agrees to pay all costs required to repair the streets and/or utility systems damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in Said Plat. In the event the Developer fails to clean up, maintain or repair the damaged public property mentioned above, the City shall provide the Developer with a notice of its intent to clean up, repair, or maintain such public property. Developer shall have thirty (30) days from the date of mailing of such notice to effect such clean up, repair or maintenance of said public property to the satisfaction of the City Council. In the event that Developer fails to so clean up, repair or maintain said public property, the City may undertake making or causing it to be cleaned up, repaired or maintained. When the City undertakes such repair, the Developer shall reimburse the City for all of its expenses within thirty (30) days of its billing to the Developer. If the Developer fails to pay said bill within thirty (30) days, either surety described above shall be responsible for reimbursing the City therefor. 12. Street Section Grading. 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 - 6 - '. . . . 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 a copy of the test results either directly by the testing firm or by the Developer. 13. Temporary Easement Rights. Developer shall provide access to the property at all reasonable times to the City or its representatives for purpose"s 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 "E" 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 as described in Said Plat are developed so as to provide general access to the park land. 14. Miscellaneous. Devel~per agrees that all items listed in this section are items for which it is responsible for completing and all work shall be done at Developer's expense: A. The Developer will construct a berm, including trees thereon according to the specifications of exhibit F, attached hereto and incorporated herein by reference. The Developer will execute and cause to be recorded with the wright County Recorder a Declaration of Covenant (attached as Exhibit G) as approved by the City Attorney, which declaration shall establish, among other items, the berm and provide that it shall be maintained at all times by the affected property owners in the plat in a condition at all times satisfactory to the City. The said declaration shall further provide that, upon failure of the said affected lot owners to maintain the said berm and trees, the City may, after first giving thirty (30) days mailed notice to the affected lot owners, go upon the said affected lots over and across the utility and drainage easement area dedicated in the plat of Westwind Second Addition, and maintain or replace the said berms and trees. If the City does so perform said maintenance or replacement, the City shall be entitled to replace or maintain them to the City's satisfaction and to then assess the cost thereof to all the affected lots in said plat. Said assessment shall be payable in one (1) year. 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. - 7 - " 4 . 15. Draw on Expiring 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 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 continued obligation. 16. Violation of Agreement. 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 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. The City may thence immediately and without notice or consent of the Developer use all of the deposited escrow funds, irrevocable letter of credit or other surety funds to complete the Developer's obligations as set forth herein, whether related to Petition Items or on- or off-site improvements, and to 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 failure by subsequent lot owners to maintain the berm as required by Paragraph 14 (A) above and the remedy therein provided shall be the sole remedy for such default with respect to said Paragraph 14 (A) . 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 City declaring a default or drawing upon the expiring irrevocable letter of credit as therein authorized. 17. Attorney's Fees. The Developer will pay all reasonable attorney's fees incurred by the City and as 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 provided herein. 18. Notification Information. Any notices to the parties herein shall be by registered mail addressed as follows: - 8 - City of Albertville c/o City Clerk P. O. Box 131 Albertville, MN 55301 Telephone: (612) 497-3384 John F. Darkenwald or George W. Yankoupe John George, Inc. 7535 N.E. River Road Elk River, MN 55330 Telephone: (612) 441-3700 19. Agreement 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 Mayor By Its Clerk JOHN GEORGE, INC. By John F. Darkenwald, personally, and and as President, John George, Inc. By George W. Yankoupe, personally, and as Secretary/ Treasurer, John George, Inc. Subscribed and sworn to before me this day of 1991. Notary Public DRAFTED BY: Michael C. Couri Attorney at Law Radzwill Law Office Edgewood Professional Building 705 Central Avenue East P. O. Box 369 St. Michael, MN 55376 (612) 497-1930 - 9 - Exhibit "A" " !'that port: of Lho SouthooaL .QullrLcr or Section 35, Township 121, flange 21., ~lrigl1t County, MinnesoLa, ldescr! bed ilU [o}}m./s: Deginn1ng ot tile soutl1weat corncr of Lot 2, Block 1, Wcsb-lind, occordlng to pl lJt thereof on fi 1e and (If record in the offi ce of the County necorcler; Ll1cn'ce S GOO I,lJ1 15" E. plot bcoring, olong tho BouLherly line of Lol~ ~ llnD Lot 3, 0 diuLnncc of 365.00 feet; LhcncQ 5 650 50' 15" E lllong the uoul:h line or Bll lei Lot 3, a disLc\nce of 270.00 feeL 1.0 the norll1wol:iL corner of Lot 9, Diock 1; thence 5 ~50 15' 00" \'1, 0 ell Hl.rJn'ce of 1'/7.00 fout; thence S 21,037' 00" \'1, lJ dif,d:oncc of 01,.00 f(let; th~nce 5200 2{;' 00" \'/, II disLonc('l or 3~3.00 feeL; thence 5 230 291 00" \'/, 0 distance of 150.00 feeL; 'thence S 370 38' 00" "'/,' 8 dl fiLance of 57.00 fcet; thencc' S 5:S0 551 00" ~I, II dist.ance of 57.00 feeLi thence S 710 25' 00" \'/, 0 dlsl.Clnce of 57 , 0 0 feet: thence 5 0 I, 0 05' 00 " ~I, 0 distance of 7 1. 0 0 feeL Lo tho norlh...lCst. corner of Lot 7, Dlock 2 of said pIaL; thence continue S OI,CI OS' 00" \'1, a disLance of 75.00 feet; thence on o heal'l'ng of \'105t, 0 dil:itance of 03.00 fcet; thence N 0" 31' 1)" W,' a distance of 100.12 feeL; thence N 120 21,' 00" E, a distance of 160.00 feeL; thence tl 000 13' 30" \'1, a distilnce of 100.00 feet; thence N 7C1 11,' 25" E, a distance of 113.05 feet: thence N 20 0 I. 8' 2 5 " \'1, a distance of G 7 , 5 4 feet: tile n c (! ,., 1 0 0 It 9" 2 3 " E I a d i 5 l 0 n ceo f 2 1 0 . 1 A fee l.,; the n c eN" I. 0 0 3 1 I, 5 " ~I, , (I d i s l. i1 n ceo f 00. 00 fee t; Lite nee N 77 0 29' 3 9 " \'1, Q ell s tan c e (J[ 75.0.0 feet; l.h(:ncC:! t.1 1?0 16' 51," E, D diEjLance oC 118.92 feel; thence northwesterly along il n()n-tun9(~nl.1Cll cur"H', concave l.o Lhe south'dcst, having D rndiu5 of 1969.90 feet und n central Dn91e of 10 31' 05", a dis!;nnce of 52.19 feet (the chol'd o[ soid cUl've bears N '/70 52' 50" \'/, disLant 52.19 feet); thence N 110 211. 37" E, not I.angent La said curve, a distance of 60.00 feet; thence N 120 0/,' 39" E, a disLance of ,126,4B feet; thence S 040 53' 00" E, a disLance of 37.00 feet; t.hence 5 71.0 03' 1,5" E, a eli sLance of 221..00 feet to the point of beginning.