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1999-11-02 Development AgreementCITY OF ALBERTVILLE DEVELOPER'S AGREEMENT Park View Place THIS AGREEMENT, entered into this Z.µ� day of L1999 by and between Cascade II Land Company, LLC, 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 the real property described in Exhibit A, attached hereto and incorporated herein by reference, 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 "Park View Place" and shall hereinafter be referred to in its entirety as "Said Plat" or "Subject Property"; and WHEREAS, the City has given preliminary approval of Developer's plat of Park View Place 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 bituminous street and trail(s), curb and gutter, grading, sanitary sewer, water, storm sewer and drainage ponds (hereafter "Municipal Improvements") be installed to serve the Subject Property and other properties affected by the development of Developer's land, to be installed and financed by Developer; 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, parking lot, drainage swales, berming, 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. Construction of Municipal Improvements. A. The Developer has petitioned the City to construct those Municipal Improvements located on and off Said Plat as detailed in the Plans and Specifications for 57'h Street and Lambert Avenue, dated February 16, 1999, as prepared by SEH-RCM, Inc. and on file with the City Clerk, said improvements to include installation of bituminous streets curb and gutter, concrete sidewalks, water mains, sanitary and storm sewers, storm water ponding, and site grading. Developer has agreed to be assessed for the cost of said improvements and has agreed to waive the right to appeal said assessment to the Wright County District Court. Developer and City anticipate that the special assessments for said Municipal Improvements shall be levied over a three year period. Developer agrees to timely pay said special assessments as they come due. B. The City shall, at its option, have the City Engineer present on Said Plat for inspection purposes at all times (or such times as the City Inay deem necessary) during the construction and installation of said Municipal Improvements. 2. Construction of On- and Off -Site Improvements. A. Developer shall construct all on- and off -site improvements including installation of boulevards, street signs, traffic signs, yard top soil, sod in all front yards (seed in back and side yards), grading control per lot, bituminous or concrete driveways and parking lots, drainage swales, berming, and like items as necessary, street cleanup during project development, erosion 2 control, all as required by City ordinance. Said on- and oil site improvements shall be installed no later than October 31, 2002, with the exception of erosion control, drainage swales and beaming, which shall be installed upon initial grading of Said Plat. 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: i. Electrical power supply, to be provided by Northern States Power or other such carrier, ii. Natural gas supply, to be provided by Minnegasco or other such carrier; Telephone service, to be provided by Sprint/United Telephone Company or other such carrier; iv. Cable TV service, to be provided by a local carrier; In addition, the Developer shall, at its own expense, cause street lights and street signs to be of such type and to be installed at such locations as required by the City Engineer and in conformance with the Manual on Uniform Traffic Control Devices. C. Developer has submitted a utility plan for Said Plat showing all existing and proposed utility lines and easements, attached and incorporated herein as Exhibit B. Developer agrees to have all utilities installed according to this Exhibit B. "• D. Developer shall install silt fencing in back of all curbing within 30 days after said curbing is installed, or 7 days after the "small utilities" (gas, phone, electrical and cable television) have been installed, 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 3 installed upon said lot. E. 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 issuance of a certificate of occupancy (temporary or permanent) by the City for a building located on the lot. In the event the certificate of occupancy is issued after October 1st and before March 30th in any given year, said on - and off- site improvements shall be shall be so completed by the following June 15th. F. Developer shall install storm water retention/water quality ponds and basins upon Said Plat as shown on the Grading, Drainage and Erosion Control Plan attached as Exhibit C. Said ponds and basins shall be dedicated to the City, and Developer shall provide the City with perpetual drainage easements over such ponds. Said retention ponds and basins shall be installed prior to the installation of utilities. 3. Intended Use of Subdivision Lots. It is the Developer's and City's intent that the following lots be used in the following manner: A. Lots 1 and 2, Block 1; Lots 1 and 2, Block 2; Lots 1 and 2, Block 3; Lots 1-5, Block 4; Lots 1-4, Block S; Lots 1-10, Block 6 and Lots 1-10, Block 7: to be used for single-family detached dwelling units only (one unit on each lot). Developer agrees that it shall not construct any units other than said single-family detached dwelling units on said lots. B. Outlots A, B, C, D, E, F shall remain unbuildable until replatted into numbered lots and blocks. The City may require a separate developer's agreement for each plat which replats one or more of said outlots. C. Outlot G is a wetland area which shall be deeded to the City. A D. Outlots H and I shall be deeded to the City trail purposes. E. The Developer is hereby granted a lot width variance for Lots 8, 9 and 10 of Block 7. Said variance shall allow the lots to be platted at the widths shown on Said Plat. 4. Surety Requirements. 4 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 and that the assessments levied upon Developer's property for said Municipal Improvements shall be paid timely. Said letter of credit or surety shall be in the amount of $233,333.00 representing 33% of the $700,000.00 estimated cost of the Municipal Improvements to be assessed against Developer. 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 reimburse itself for costs incurred in the drafting, execution, administration or enforcement of this Agreement, to pay special assessments not timely paid by Developer, 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 pay or 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. 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. 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 k, such items are satisfactorily completed pursuant to this Agreement. F. The City shall not require the Developer to post a surety for the on- and off - site improvements to be installed on Said Plat. In lieu of posting a surety for this purpose, Developer hereby agrees that the City shall have the right to refuse to issue a certificate of occupancy for those properties not complying with paragraph 2.E. of this agreement. 5. Surety Release. A. Periodically, as payments are made by the Developer for the completion of portions of the Municipal Improvements and/or On- and Off -site Improvements, and when it is reasonably prudent, the Developer may request of the City that the surety be proportionately reduced for that portion of the Municipal Improvements which have been fully completed and payment made therefor. All such decisions shall be at the discretion of the City Council. The City's cost for processing reduction request(s) shall be billed to the Developer. Such cost shall be paid to the City within thirty (30) days of the date of mailing of the billing. B. The Developer may request of the City a reduction or release of any surety as follows: i. When another acceptable letter of credit or surety is furnished to the City to replace a prior letter of credit or surety. ii. When all or a portion of the Municipal Improvements or the on- and off -site improvements have been installed, the letter of credit or surety may be reduced by the dollar amount attributable to that portion of improvements so installed, except that the City shall retain the letter of credit or surety in the amount of 10% of the estimated construction price of the Municipal Improvements during the first year of the warranty period and 5% of the estimated construction price of the Municipal Improvements during the second year of the warranty period. As to all requests brought under this paragraph, the City Council shall have complete discretion whether to reduce or not to reduce said letter of credit or surety. N. C. The costs incurred by the City in processing any reduction request shall be billed to the Developer and paid to the City within thirty (30) days of billing. 6. Abandonment 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 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. 7. Developer to Pay City's Costs and Expenses. It is understood and agreed that the Developer will reimburse the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this 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, Developer agrees to allow the City to reimburse itself from* said surety and/or assess the amount owed against any or all of the Said Plat without objection. Developer has the right to request time sheets or work records to verify said billing prior to payment. 8. Erosion and Siltation Control. Before any grading is started on any site, all erosion control measures as shown on the approved Grading, Drainage and Erosion Control Plan shall be strictly complied with as set forth in the attached Exhibit C. Developer shall also install all erosion control measures deemed necessary by the City Engineer should the erosion control plan prove inadequate in any respect. 7 9. Ditch Cleaning. 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. 10. 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 watmmain, 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. 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 withdrawn by the City from the surety described above and/or specially assessed against any or all lots within Said Plat. 11. Temporary Easement Rights. 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. 12. Miscellaneous. A. Developer agrees that all construction items required under this Agreement are items for which Developer is responsible for completing and all work shall be done at Developer's expense. B. If any portion, section, subsection, sentence, clause, paragraph or phrase of this Contract is for any reason held invalid by a Court of competent jurisdiction, such decision shall not affect the validity of the remaining 8 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 City, Developer, its contractors, subcontractors, materialmen, employees, agents, or third parties. D. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. E. This Contract shall run with the land and shall be recorded against the title to the property. After the Developer has completed all work and obligations required of it under this Contract (including the expiration of the warranty period), at the Developer's request, the City will execute and deliver to the Developer a release of its obligations under this Agreement. 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 provjde 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. H. Developer shall comply with all water, ponding and wetland related restrictions, if any, required by the City of Albertville and/or any applicable provisions of State and Federal law. 6 I. The Albertville City Council reserves the right to allocate wastewater treatment capacity in a manner it finds to be in the best interests of the public health, safety and welfare. J. Developer shall not place any structure at an elevation such that the lowest grade opening is less than two feet above the highest known surface water level or ordinary high water level or less than one foot above the 100-year flood level of any adjacent water body or wetland. If sufficient data on high water levels is not available, the elevation of the line of permanent aquatic vegetation shall be used as the estimated high water elevation. When fill is required to meet this elevation, the fill shall be allowed to stabilize and construction shall not begin until the property has been approved by the Building Inspector or a professional soils engineer. K. Developer is required to and represents that he will, in writing, inform potential buyers of lots within Said Plat of the proposed trail to be located on, over, across or adjacent to the lot under consideration for purchase prior to signing a purchase agreement. 13. Draw on Expiring Letter of Credit. In the event a surety referred to herein is in the form of an irrevocable letter of credit, which by its terms may become null and void prior to the time at which all monetary or other obligations of the Developer are paid or completed, it is agreed that the Developer shall provide the City with a new letter of credit or other surety, acceptable to the City, at least forty-five (45) days prior to the expiration of the expiring letter of credit. If a new letter of credit is not received as required above, the City may declare a default in the terms of this Agreement and thence draw in part or in total, at the City's discretion, upon the expiring letter of credit to avoid the loss of surety for the continued obligation. The form of said irrevocable letter of credit must be approved by the City Attorney prior to its issuance. x.i 14. Violation of Agreement. 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 10 failure to cure by Developer, the City may thence immediately and without notice or consent of the Developer use all of the deposited cash, irrevocable letter of credit or other surety funds to complete the Developer's obligations under this Agreement', 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. B. Paragraph 14A of this section shall not apply to any acts or rights of the City under the preceding paragraph 13 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. 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. C. Breach of any of the terms of this Contract by the Developer shall be grounds for denial of building permits. 15. Dedications to the City. A. Municipal Improvement Dedications. The Developer, upon presentation to the City of evidence of good and marketable title to Subject Property, and upon completion of all pond construction work and certification of completion by the City Engineer, shall dedicate ponds, to the City. Specifically, Developer shall deed outlots G, H and I to the City. Developer shall also dedicate all platted streets to the City. Acceptance by City of any dedication shall occur upon passage of a resolution to such effect by the City Council. *.y B. Park Dedications Developer acknowledges and agrees that in order to satisfy the City's park dedication requirements for Said Plat, Developer would be required to dedicate 10% of the gross platted acreage (excluding those outlots which will be developed into numbered lots and blocks in the future), or 2.98 acres. In lieu of dedicating 2.98 acres of land, Developer shall dedicate .212 acres consisting of outlots H and I, for park dedication purposes, representing 7.13% of the total park dedication required. Developer shall 11 satisfy the remaining 92.87% of park dedication required by making a cash payment to the City in the amount of $42,256 (35 residential lots x $1,300 per lot x 92.87%). All such park dedication fees shall be paid prior to release of Said Plat by the City. 16. Landscaping. In addition to required ground cover and soil erosion measures that may be required by the City Engineer, and after grading and sodding of all front and side yards following home construction, Developer shall plant at least one shade tree or large evergreen tree per residential lot which conforms to the following size requirements: Shade Trees: 2 inch diameter trunk Evergreen Trees: 3 feet high 17. 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. 18. Indemnity. Developer shall hold the City and its officers and employees harmless from claims made by Developer and third parties for damages sustained or costs incurred resulting from Said Plat approval and development. The Developer shall indemnify the City and its officers and employees for all costs, damages or expenses which the City may pay or incur in consequence of such claims, including attorney's fees. Third parties shall have no recourse against the City under this contract. 19. Assignment 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. 20. Limited Approval. 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. 21. Professional Fees. The Developer will pay all reasonable professional fees incurred by 12 the City as a result of City efforts to enforce the terms of this Agreement. Said fees include attorney's fees, engineer's fees, planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. The Developer will also pay all reasonable attorney's and professional fees incurred by the City in the event an action is brought upon a letter of credit or other surety furnished by the Developer as provided herein. 22. Plans Attached as Exhibits. All plans attached to this Agreement as Exhibits are incorporated into this Agreement by reference as they appear. Unless otherwise specified in this Agreement, Developer is bound by said plans and responsible for implementation of said plans as herein incorporated 23. Integration Clause, Modification by Written Agreement Only, This Agreement represents the full and complete understanding of the parties and neither party is relying on any prior agreement or statement(s), whether oral or written. Modification of this Agreement may occur only if in writing and signed by a duly authorized agent of both parties. 24. Notification Information. Any notices to the parties herein shall be in writing, delivered by hand (to the City Clerk for the City) or registered mail addressed as follows to the following parties: City of Albertville c/o City Clerk P.O. Box 9 Albertville, MN 55301 Telephone: (612) 497-3384 Cascade II Land Company, LLC Y 555 3'd Street N.W. Elk River, MN 55330 Telephone: (612) 441-8591 25. Agreement Effect. This Agreement shall be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. 13 CITY OF AL] CASCADE 11 LAND COMPANY, LLC By O Its tresident STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this °/ day of �91999, by John 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 STATE OF MINNESOTA 7WRIGHT OUGHroN C-MINNESOTA ) ss. COUNTY COUNTY OF WRIGHT ) MYires Jan. 3t, 2000 "- Y M The foregoing instrument was acknowledged before me thi0-61 s day of No +/. t_AL , 1999, by Linda Goeb, as Clerk of the City of Albertville, a Minnesota municipal corporation, on behalf of the city and r ur-suant to the authority of the City Council MAN Notary Public Azmo INNESOTANTYan. 31, 2MW 14 STATE OF MINNESOTA ) -_ ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this 2,u�L_ day of 1999, by �j��/o,� /,'�� , as of Cascade II Land Company, LLC . Couri and MacArthur Law Office P.O. Box 369 705 Central Avenue East St. Michael, MN 55376 (612)497-1930 15 SHARON L SHERVOW NOTARY PUKX • I IM My CWAL 1*dM. Nt, NNM pop 0 .. Legal description of Property subject to Developer's Agreement (after recording of plat): Lots 1-2, Block 1 Lots 1-2, Block 2 Lots 1-2, Block 3 Lots 1-5, Block 4 Lots 1-4, Block S Lots 1-10, Block 6 Lots 1-10, Block 7 Outlots A, B, C, D, E, F, G, H and I. All such property located in Park View Place plat according to the plat of record contained in the Wright County Recorder's Office, Wright County, Minnesota. IVI Utility Plan Grading, Drainage and Erosion Control Plan 17 City of Albertville Park Place Park Dedication Calculations Outlot A Outlot B Outlot C Outlot D Outlot E Outlot F Outlot G Outlot H Outlot I All other property Gross s.f. Gross Square Feet 479,212 995,690 53,001 61,477 53,170 91,568 396,788 7,003 2,235 889,890 3,030,034 Square footage needed for park dedication Square footage dedicated with the plat Square footage needed but not dedicated Total residential lots in plat Park dedication per lot Gross park dedication required Less percent dedicated via land (7.29%) Net park dedication due upon platting Square Footage for Park Dedication Purposes Square Footage - Dedicated for Park 396,788 7,003 7,003 2,235 2,235 889,890 1,295,916 9,238 129,592 100.00% 9,238 7.13% 120,354 92.87% 35 $1,300 $45,500 $3,243 $42,257 m `.