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2005-05-30 Development Agreement i. .,. . CITY OF ALBERTVILLE CONDITIONAL USEIPLANNED UNIT DEVELOPMENT AGREEMENT ALBERT VILLAS FIFTH ADDITION THIS AGREEMENT, entered into this day of , 2001 by and between EDINA DEVELOPMENT CORPORATION referred to herein as "Developer"; and the CITY OF ALBERTVILLE, County of Wright, State of Minnesota, hereinafter . referred to as "City"; WITNESSEm: 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 of this Agreement, is intended to bear the name "Albert Villas Fifth Addition" and shall hereinafter be referred to in its entirety as "Said Plat" or "Subject Property"; and WHEREAS, Developer intends to subdivide 3.35 gross acres into 3 single-family residential lots; and WHEREAS, approval of a Conditional Use PermitIPlanned Unit Development is required to allow for the aforementioned subdivision proposed by Developer; and WHEREAS, the City has given preliminary approval of Developer's plat of Albert Villas Fifth Addition 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, drainage, sanitary sewer, municipal water and storm sewer and drainage ponds (hereafter "Municipal Improvements") have already been installed to serve the Subject Property; 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 control per lot, bituminous or concrete driveways, drainage swales, benning, street signs, street cleanup during project development, erosion control, and other site-related items; and WHEREAS, this Agreement is entered into for the purpose of setting forth and memorializing for the parties and subsequent owners, the understandings and covenants of the parties concerning the development of the Said Plat 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. Conditional Use Permit. Developer is hereby granted a Conditional Use Permit to allow the development of Said Plat as a Planned Unit Development. Unless otherwise explicitly set forth in this Agreement, however, Developer must conform to the requirements 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. All grading, drainage, utility, wetland mitigation, and transportation issues that arise during development of Said Plat shall be subject to review and approval by the City Engineer. B. The Developer shall file property owners association covenants against all Lots in Said Plat, said covenants to be submitted to the City Attorney for review and approval and shall be subject to the requirements of Section 1100 and 2700 of the City Zoning Ordinance. 2. Construction of On- and Off-Site Improvements. A. Developer shall construct all on- and off-site improvements including installation of boulevards, yard top soil, sod and seed in all yards, grading control per lot, bituminous or concrete driveways and parking lots, drainage 2 . . swales, benning, and like items as necessary, street cleanup during project development, and erosion control, all as required by City ordinance. Front, side and portions of the back yards of residential lots shall be sodded in accordance with the Residential Development Standards as on file with the City Administrator's Office. Those portions of the yards not required to be sodded may be seeded with grass seed or sodded. In all cases permanent turf or grass must be established over all areas of the lot not covered by a hard or impervious surface. The Developer shall guarantee that all new plantings shall survive for two full years from the time the planting has been completed or will be replaced at the expense of the Developer. Said on- and off-site improvements shall be installed no later than October 31, 2003, with the exception of erosion control, drainage swales and berming, which shall be installed upon initial grading of Said Plat. B. Developer shall install silt fencing in back of all curbing upon grading of any of the lots in said Plat. Developer shall be allowed to substitute hay bales for a 22-foot section of silt fencing on each lot for the purpose of allowing construction vehicles to pass from the street to each lot. No construction vehicles shall pass from the street to the lots except through such designated 22-foot section of hay bales. Developer shall remove all hay bales and silt fencing from each lot as sod is installed upon said lot. . C. Notwithstanding the requirements of subparagraph 2A 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 1st and before March 30th in any given year, in which case a certificate of occupancy shall be issued only if the owner of the lot has entered into an escrow agreement with the City and provided an escrow for 150% of the estimated cost of said improvements pursuant to City Ordinance. D. Developer shall install landscaping in accordance with the Landscape Plan attached as Exhibit B. 3. Intended Use of Subdivision Lots. The City and Developer agree that the numbered lots in Said Plat are intended only for single-family residential use with no more than one single family dwelling on each lot. Developer shall construct only one single family dwelling per numbered lot, unless Said Property is rezoned by the . 3 , . . City in the future into a classification which would allow additional units to be constructed. 4. Abandonment of Proiect - 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 representations 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 Said Plat, or fails to leave the abandoned property in a condition which can be mowed using conventional lawn mowing equipment, Developer agrees to pay all costs the City may incur in taking whatever action is reasonably necessary to provide ground-cover and otherwise restore Said Plat to the point where undeveloped grounds are level and covered with permanent vegetation sufficient to prevent continuing soil erosion from Said Plat and to facilitate mowing of Said Plat. In the event that said costs are not paid, the City may specially assess such costs against the lots within Said Plat and! or take necessary legal action to recover such costs, including attorneys fees. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. . 5. Developer to Pay City's Costs and Expenses. It is understood and agreed that the Developer will reimburse the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this Agreement and the approval of Said Plat, as well as all reasonable engineering expenses incurred by the City in 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 amounts, then the City may specially assess such costs against the lots within Said Plat. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. Developer has the right to request time sheets or work records to verify said billing prior to payment. 6. 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 B. Developer shall also install all erosion control measures deemed necessary by the City Engineer should the erosion control plan prove inadequate in any respect. . 4 . . . e 7. Draina!!e Requirements. Developer shall comply with all requirements set forth for drainage into any county ditch or other ditch through which water from 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 requirements, all at Developer's expense. 8. Maintain Public Property Dama!!ed or Cluttered 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, 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 Said Plat. 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 Said Plat 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 Said Plat 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, 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, then the City may specially assess such costs against the lots within Said Plat 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. 9. Temporary Easement Ri!!hts. Developer shall provide access to the Subject Property at all reasonable times to the City or its representatives for purposes of inspection or to accomplish any necessary work pursuant to this Agreement. . 10. Miscellaneous. 5 . 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 portiOl\ sectiol\ subsectiol\ sentence, clause, paragraph or phrase of this Contract is for any reason held invalid by a Court of competent jurisdictiol\ such decision shall not affect the validity of the remaining portion of this Contract. C. 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. D. 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, at no time shall the City release those provisions of this Agreement which, in the City's sole judgment, contain continuing obligations. Said continuing obligations include, but are not limited to, paragraphs 1,3, 5, 7, 10, 11, 13, 14, 15, 16, 18, 19,20,21,22. . E. The Developer represents to the City that Said Plat complies with all City, county, state and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. Developer agrees to obtain all required federal, state and local permits. If the City determines that Said Plat does not comply, the City may, at its option, refuse to allow construction or development work in the plat until the Developer so complies. Upon the City's demand, the Developer shall cease work until there is compliance. F. Prior to the execution of this Agreement and prior to the start of any construction on the Subject Property, Developer shall provide the City with evidence of good and marketable title to all of Subject Property. Evidence of good and marketable title shall consist of a Title Insurance Policy or Commitment from a national title insurance company, or an abstract of title . 6 . updated by an abstract company registered under the laws of the State of Minnesota. G. 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. H. 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 ordinaty high water level or less than one foot above the 1 DO-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 ootil the property has been approved by the Building Inspector or a professional soils engineer. 11. Violation of Ae: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 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 of the Developer complete the Developer's obligations under this Agreement, and specially assess the costs thereof against the lots within Said Plat and/or 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. Developer knowingly and voluntarily waives all statutory rights to appeal said special assessment under Minnesota Statutes section 429.081. B. Notwithstanding the 30-day notice period provided for in paragraph IIA above, in the event that a default by Developer will reasonably result in irreparable harm to the environment or to public property, or result in an imminent and serious public safety hazard, the City may immediately 7 . 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 IIA of this section shall not apply to any acts or rights of'the City under the preceding paragraph, 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. 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 terms of this Contract by the Developer shall be grounds for denial of building permits and/or revocation of the Conditional Use Permit. 12. Dedications to the City: Park Dedication Fees: Developer acknowledges and . agrees that in order to satisfy the City's park dedication requirements for the 3 residentially zoned lots in Said Plat, Developer shall pay the City a cash payment totaling $4,500 (3 lots x $1,500.00 per lot) Said park dedication fees shall be paid prior to the release of Said Plat by the City. 13. Phased Development. If the plat is a phase of a multi-phased preliminary plat, the City may refuse to approve final plats of subsequent phases until public improvements for all prior phases have been satisfactorily completed. Development of subsequent phases may not proceed until Development Contracts for such phases are approved by the City. Approval of this phase of the Development shall not be construed as approval of future phases nor shall approval of this phase bind the City to approve future Development phases. All future Development phases shall be governed by the City's Comprehensive Plan, Zoning ordinance, Subdivision ordinance, and other ordinances in effect at the time such future Development phases are approved by the City. 14. Indemnitv. Developer shall hold the City and its officers and employees haImless from claims made by Developer and third parties for damages sustained or costs incurred resulting from Said Plat approval and development. The Developer shall indemnify the City and its officers and employees for all costs, damages or expenses . 8 . 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. 15. Assil!nment of Contract. The obligations of the Developer under this Contract cannot be assigned without the express written consent of the City Council through Council resolution. 16. Limited ADDroval. Approval of this Agreement by the City Council and issuance of the Conditional Use Permit which is the subject of this Agreement in no way constitutes approval of anything other than that which is explicitly specified in this Agreement. 17. Sanitary Sewer and Water Trunk Line Fees. Prior to the City releasing Said Plat, Developer agrees to pay a trunk sewer charge in the amount of $4,690.00, representing $1,400 per acre of Said Plat multiplied by 3.35 gross acres contained in Said Plat. In addition, prior to release of Said Plat, Developer agrees to pay a trunk water charge in the amount of $4,020.00 representing $1,200 per acre of Said Plat multiplied by 3.35 gross acres contained in Said Plat. Developer agrees . to pay said amounts prior to the City's release of Said Plat. 18. 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. 19. 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. 20. Intel!ration Clause. Modification by Written A!!reement Only. This Agreement represents the full and complete understanding of the parties and neither party is relying on any prior agreement or statement( s), whether oral or written. Modification of this Agreement may occur only if in writing and signed by a duly authorized agent of both parties. . 9 . 21. Notification Information. Any notices to the parties herein shall be in writing, delivered by hand (to the City Clerk for the City) or registered mail addressed as follows to the following parties: City of Albertville c/o City Clerk P.O. Box 9 Albertville, MN 55301 Telephone: (763) 497-3384 Edina Land Corporation 700 Industry Avenue Anoka, MN 55303 Attention: Rick Lewondowski Telephone: (612) 323-9086 22. Al!reement Effect. This Agreement shall run with the land and be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. By Its Clerk . EDINA DEVELOPMENT CORPORATION By Rick Lewondowski Its President STATE OF MINNESOTA) ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of , 2001, by John A. Olson 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. Notary Public . 10 . . - STATE OF MINNESOTA ) ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of , 200 1, by Linda Goeb, as Clerk-Administrator of the City of Albertville, a Minnesota municipal cOIporation, on behalf of the city and pursuant to the authority of the City COWlcil. Notary Public STATE OF MINNESOTA) ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of , 2001, by Rick Lewondowski, as President of Edina Development Corporation. Notary Public DRAFTED BY: Couri and MacArthur Law Office P.O. Box 369 705 Central Avenue East St. Michael, MN 55376 (763) 497-1930 11 EXHmIT A TO DEVELOPER'S AGREEMENT The Real Property subject to the Developer's Agreement is legally described as follows (after the filing of the Albert Villas Fifth Addition Plat): Lots 1-3, Block 1 All said property in Albert Villas Fifth Addition plat, City of Albertville, County of Wright, Minnesota. 12 . . . / .. . ~~ -- YI~ &TIo+ ~ITION 011: Al.__~ I --~ ~"AIlLTIDIZ r~ " ,"'. ~ "-,-"......."',,...,.,~ '~.".; - 2 , >, --,...... i~ ~"':~"~:~~,.::::':' =""".--....."",.. ~. ~ 7Q.i EROSION CONlFlOL NOTES I. ~~;~t~~~~!t~~ : ~~~~~~;~i::~,~. / ,<, -~: =:=?=.. 4D>DI>oalI._nrw.moo ct---CIDOO1tiNf\,IlII:UTlJII[S ~Cll"'TU'K"--"'I1It.I_..ao DOOfOTuOIt1\.Ne -.-.- ::::::.aN(; "_1oIU [HQII[MC :~~~~"-= ~~f~~~.;:~~'" NClOT" ~ '~':'-"'r~f:-:- --411~4------ , .' . ~-r-'".-~-;::--' , , .?..'i: uHJL':'d'>l" ......,. ", ,"SSf. P1~I~ . ---- II.,..,., _... ... IIT~I~~~:'~~'I ~~~~l~J~:;f~ -...., U. IIILC . ~. INC. 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