2002-12-31 Development Agreement
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DEVELOPER'S\PLANNED UNIT DEVELOPMENT AGREEMENT\
CONDITIONAL USE AGREEMENT
Albertville Crossing Second Addition
THIS DEVELOPMENT AGREEMENT is entered into this g / Sf day of ~~
2002 by and between Cascade II Land Co., LLC, a Minnesota limited liability company
referred to herein as "Developer"; and the CITY OF ALBERTVILLE, County of Wright,
State of Minnesota, hereinafter referred to as "City" all of which are collectively referred to
herein as ''the Parties";
WITNESSETH:
WHEREAS, Developer is the fee owner of the parcels of land described in Exhibit
A, attached hereto and incorporated herein by reference, which parcel(s) of land are
proposed to be subdivided and platted for development, and which subdivision, which is the
subject of this Agreement, is intended to bear the name "Albertville Crossing Second
Addition". The real property described in Exhibit A shall hereinafter be referred to as the
"Subject Property" or "Said Plat"; and
WHEREAS, the City has given preliminary approval of Developer's Development
Stage plan of Albertville Crossing Second Addition contingent upon compliance with
certain City requirements including, but not limited to, matters set forth herein; and
WHEREAS, the City further requires that certain on- and off-site improvements be
installed by the Developer within the Subject Property, which improvements consist of
boulevards, top soil and sod, grading control per lot, bituminous or concrete driveways,
street cleanup during project development, erosion control, and other site-related items; and
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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. Construction of Municipal Improvements. The Developer and City have
previously agreed in the DEVELOPER'S\PLANNED UNIT DEVELOPMENT
AGREEMENT\CONDITIONAL USE AGREEMENT for Albertville Crossing
(recorded as document number 789447 in the Wright County Recorder's Office) that
the City would install bituminous street, curb and gutter, water mains, sanitary and
storm sewers within the dedicated right of way of LaCentre Avenue and assess 100%
of the cost of said improvements to Outlots A and C of Albertville Crossing, and that
the Developer waives it right to appeal said assessment to the Wright County District
Court pursuant to Minn. Stat. ~ 429.081. Outlots A and C are being replatted into the
lots and blocks of Albertville Crossings Second Addition. This agreement shall not
alter or amend the City's right to assess said Outlots A and C (whether they are .
described as Outlots A and C or as the lots and blocks of Albertville Crossings
Second Addition), nor shall it alter Developer's waiver of its appeal rights under
Minn. Stat. ~ 429.081.
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 lots, grading
control per lot, bituminous or concrete driveways, berming, and like items as
necessary, street cleanup during project development, and erosion control, all
as required by City ordinance.
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 such other location as may be approved by the City
Engineer, accessible to all lots and in compliance with all applicable state and
local regulations:
1. Electrical power supply, to be provided by Xcel Energy or other such
camer;
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Natural gas supply, to be provided by Reliant Energy or other such
carrier;
lll. Telephone service, to be provided by SprintlUnited Telephone
Company or other such 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 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, electrical and
cable television) have been installe~ whichever occurs sooner. 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.
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D. Notwithstanding the requirements of subparagraph 2A above, the Developer or
its successor shall install to the City's satisfaction improvements for each
respective 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 such 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 for such lot
pursuant to City Ordinance.
E. All said Improvements shall be installed at Developer's expense. If the City
determines that it is necessary to have the City Engineer or other inspector on site
for any portion of the installation of said Improvements, Developer shall
reimburse the City for all inspection costs incurred by the City.
F. Upon sale of a lot in Said Plat to a third party, Cascade II Land Co., LLC's
obligation to perform the requirements of paragraphs 2.A, 2.C. and 2.D. with
respect to such sold lot shall cease, but the new owner of such lot shall remain
bound by the obligations of said paragraphs.
3. Surety Requirements.
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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 performed. Said letter of credit or
surety shall be in the amount of $10,000.00. 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, 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, 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. 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.
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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, to the extent of the costs identified in this agreement.
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 all
such items are satisfactorily completed pursuant to this Agreement.
F.
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 monet:aIy 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
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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.
4.
Surety Release.
A. Periodically, and when it is reasonably prudent, the Developer may request of
the City that the surety be reduced. 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.
5. Use ofPropertv. Developer's use of Said Plat shall be consistent with the following
restrictions, which shall be effective until further modified or amended by rezoning or
other amendment of the planned unit development/conditional use permit by the City
Council:
A. Except as otherwise set forth in this Agreement, the provisions of the City's B-3
zoning district (as amended from time to time) shall apply to Lot 1, Block 1. The
provisions of the City's B-2 zoning district (as amended from time to time) shall
apply to Lot 3, Block 1 of Said Plat.
B. Lot 2, Block 1 is currently zoned a combination of B-2 and B-3. Unless
otherwise rezoned, Developer's use of the lot shall be limited to those uses
allowed in the City's B-2 zoning district (as amended from time to time).
C. The provisions of the City's B-2 zoning district (as amended from time to time)
shall apply to Lot 1, Block 2 of Said Plat.
D. No gasoline or other vehicle fuel sales shall be allowed on any of the lots in Said
Plat.
E. Signage on Said Plat shall be limited to monument (ground) signage and signage
on such buildings as may be constructed, all such signage to be consistent with
City ordinances. Elevated signage on a pylon or other type of free-standing sign
shall not be permitted on Said Plat, except as previously approved under the
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6.
DEVELOPER'S\PLANNED UNIT DEVELOPMENT
AGREEMENT\CONDITIONAL USE AGREEMENT for Albertville Crossing
as recorded in document number 789447 in the Wright County Recorder's
Office. The py Ion sign permitted in said document number 789447 may only be
utilized to further the business pursuits ofthose businesses which occupy Lots 1,
2 and/or 3 ofthe Albertville Crossings Plat.
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F. Lighting on Said Plat shall be turned off or reduced to the necessary minimum
when the businesses are closed.
G. Prior to the issuance of a building permit for any buildings on any of the lots of
Said Plat, Developer shall submit a site plan, landscape plan, lighting plan, and
signage plan acceptable to the City for each lot to be built upon, and, upon
issuance of the building permit, shall adhere to such approved site plan,
landscape plan, lighting plan and signage plan. All improvements required to be
installed under this paragraph shall be installed at Developer's expense.
H. In the event the Developer operates a restaurant on any lots in Said Plat, the
City may require Developer to install and operate odor control scrubbers with
the restaurant uses.
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 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 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 withdraw funds from the above-mentioned surety for the purpose
of paying the costs referred to in this paragraph.
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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,
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enforcement or execution of this Agreement and the approval of Said Plat, as well as
all reasonable engineering expenses incurred by the City in approving and inspecting
said Improvements described above. Developer agrees to pay all such costs within
30 days of billing by the City. Developer has the right to request time sheets or work
records to verifY said billing prior to payment.
8.
Erosion and Siltation Control. Developer shall also install all erosion control
measures deemed necessary by the City Engineer during the development of Said
Plat.
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9. Maintain Public Property Damae:ed or Cluttered Dunne: 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 watennain,
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 ten (10) 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, provided, however, that Developer shall
immediately clean up or repair any public property damage deemed by the City
Engineer to be an imminent safety hazard or an imminent cause of pollution or water
quality degradation. 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 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, funds sufficient to pay the bill may be specially assessed against the lots within
Said Plat upon which the subject development activities are ongoing.
10.
Temporary Easement Rie: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.
11.
Miscellaneous.
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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.
C. If building permits are issued prior to the completion and acceptance of public
improvements, the Developer assumes all liability and the costs resulting in
delays in completion of public improvements and damage to public
improvements caused by the Developer, its contractors, subcontractors,
materialmen, employees, agents, or third parties during construction of
improvements on Said Plat.
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.
F. 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. 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
G. 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
updated by an abstract company registered under the laws of the State of
Minnesota.
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H.
Developer shall comply with all water and wetland related restrictions, if any,
required by the City of Albertville and/or any applicable provisions of State
and Federal law.
I. 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 IOO-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.
J. Ifrequired by the City Fire Chief, the owner of any lot in Said Plat on which a
building is proposed to be constructed shall provide the City Fire Chief with a
detailed analysis of the proposed building's compliance with the fire code
then in force in the City, or, at the election of the City Fire Chief, said owner
shall pay the reasonable cost of such an analysis if performed by or for the
City.
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12. Dedications to the City. Developer acknowledges and agrees that in order to satisfy
the City's park dedication requirements for Said Plat, Developer shall pay $5,000 per
acre for all lots developed as numbered lots. Said Plat consists of5.89 acres of numbered
lots. Therefore, Developer shall pay the City a cash payment totaling $29,450.00.
13. Indemnitv.
A. Developer shall hold the City and its officers, employees and agents harmless
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, employees and agents 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.
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B. Upon sale ofa lot in Said Plat to a third PartY, Cascade II Land Co., LLC's
obligation to indemnify under paragraph 13.A. above with respect to such sold
lot shall cease to accrue, except that as to any events, acts or occurrences on the
subject lot that occurred prior to said sale of such lot, Cascade II Land Co.,
LLC shall remain obligated to indemnify the City. Upon sale ofa lot to such
third party, the third party shall be bound by the indemnification obligations of
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said paragraph B.A. as to any events, acts or occurrences on the subject lot that.
occurred after said sale of such lot.
14. Assi2nment 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, except as expressly permitted elsewhere in this Agreement.
15. Aueement Effect. This agreement shall be binding upon and extend to the
representatives, heirs, successor and assigns of the parties hereto.
16. 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 under .
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 Said Plat pursuant
to the terms of this agreement, provided that the City shall not assess the First
Phase Properties pursuant to this paragraph unless said default concerns a
condition of, or activity or omission upon the First Phase Properties, or is
related to the First Phase Properties or is related to the use of the First Phase
Properties.
B. Notwithstanding the 3D-day notice period provided for in paragraph 16(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 an
imminent and serious public safety hazard, the City may immediately
exercise all remedies available to it under this agreement in an effort to
prevent, reduce or otherwise mitigate such irreparable harm or safety hazard,
provided that the City makes good-faith, reasonable efforts to notifY the
Developer as soon as is practicable of the default, the projected irreparable
harm or safety hazard, and the intended actions of the City to remedy said
harm.
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C.
Breach of any of the terms of this Contract by the Developer shall be grounds
for denial of building permits and/or occupancy permits until said breach is
remedied.
17. Phased Development. If the plat is a phase of a multi-phased preliminary pla~ the City
may refuse to approve final plats of subsequent phases if Developer is in breach of this
Agreement. 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 PI~ Zoning ordinance,
Subdivision ordinance, and other ordinances in effect at the time such future
Development phases are approved by the City.
18. 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.
19. 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 ofthis Agreement.
20. 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.
21. Inteeration Clause. Modification bv Written A2reement 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.
22. 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
11
Albertville, MN 55301
Telephone: (763) 497-3384
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Cascade II Land Co., LLC
555 3rd Street N. W.
Elk River, MN 55330
Telephone: (763) 441-8591
23. A8eement Effect This Agreement shall be binding upon and extend to the
representatives, heirs, successors and assigns of the parties hereto.
TIllS DEVELOPMENT AGREEMENT is executed and delivered as of the date
first above written.
CITYOFAL~~~~,~ _~
By~~
, Scott Wallace
C-.Itsl'-'or L-
B~b.
Its City Administrator
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CASCADE II LAND CO., LLC
By ~fl~~
Its: Ctt u- fv1A t-Jtt
ST A 1E OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this 31 ~ day of
OC.Cefn~ r , 2002, by Scott Wallace 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.
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,
G KATHLEEN BOST
~J NOTARY PUBLIC - MINNESOTA
_~ My Comm. Exp. Jan. 31, 2005
.~~~
Notary Public
.
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this 3 ) ~ day of
1)~Ce.mOCr . 2002, by Linda Goeb, as City Administrator of the City of
Albertville, a Minnesota municipal corporation, on behalf of the city and pursuant to the
authority of the City Council.
~ KATHLEENBOST
"'. NOTARY PUBLIC - MINNESOTA
_'II My Comm. Exp. Jan. 31, 2005
"tLL~ ~
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
. The foregoing instrument was acknowledged before me this day of
, 2002, by Marlon Glines, as Chief Manager of Cascade II Land Co.,
LLC, a Minnesota limited liability company, on behalf of the limited liability company.
Notary Public
DRAFTED BY:
Couri and MacArthur Law Office
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376
763 497-1930
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