1992-08-27 Developer's AgreementDEVELOPER'S AGREEMENT
Barthel's Commercial Park
THIS AGREEMENT, entered into
1992 by and between Donald G.
(collectively referred to as
ALBERTVILLE, County of Wright,
referred to as "City";
WITNESSETH:
this 27th day of August ,
Barthel and Betty L. Barthel
"Developer"), and the CITY OF
State of Minnesota, hereinafter
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, a portion of which parcels 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 Barthel Commercial Park and may sometimes
hereinafter be referred to as the "Subject Property", "Said Plat",
"Plat", "Platted Property" or individually by the lots to be
platted within said Commercial Park; and
WHEREAS, the City has given preliminary approval of
Developer's plat of May 7, 1992 (attached hereto as Exhibit "B")
contingent upon compliance with certain City requirements
including, but not limited to, matters set forth herein; and
WHEREAS, the City requires that certain improvements
including, but not limited to drainage and paved access be
installed to serve the Subject Property and other properties
affected by the development of Developer's land, to be financed by
the Developer; 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:
1. Developer to Construct Improvements.
A. Developer shall construct and install curb and gutter on
that portion of Lot 1, Block 2 and Lot 1, Block 1 of
Barthel Commercial Park abutting the proposed 60th Street
N.E., construct a 9-ton road to City specifications as
described and including those utilities as described in
paragraph 2(B) below, said road construction abutting the
North portion of said Lot 1, Block 2 (road area shown on
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the Preliminary Plat as 60th St. N.E.) with either
bituminous or concrete surfacing. The Developer shall
also landscape said lot with trees in the size and type
as required by the City Engineer or City Building
Inspector, construct drainage swales and berming, install
sod or seed and like items, and implement necessary
erosion control procedures. Developer agrees to pave
said Lot 1, Block 2, but said paving may consist of
gravel of such type and quantity as approved by the City
Engineer until such time as Developer constructs a second
warehouse storage or similar building, at which time
(i.e. prior to occupation of additional building)
Developer must lay bituminous or concrete surfacing on
all graveled areas of said Lot 1 and all other ground
areas of the lot which are to be used in conjunction with
any warehouse storage or similar buildings on the
premises. Developer agrees that as each additional
building is constructed, bituminous or concrete surfacing
will be laid for use with such building prior to
occupation of each said new building.
B. Developer shall cause to be constructed a 9-ton road,
built to City specifications, abutting each additional
lot in Barthel Commercial Park that is platted. Said
road shall be constructed at Developer's expense and
shall be built as soon as possible after plat approval by
the City, but before any structures are erected on the
newly platted property. Prior to construction of said
road, the City must approve the design and location of
said road, it being agreed that said road shall
eventually connect with Lachman Ave. N.E., and that the
entire area of said road connecting to Lachman Ave. N.E.
must be paved by Developer according to City
Wes
specifications at such time as�e W1 rn feet of
roadway (as measured from the eaBeerl5j edge of Said Plat
down the center of said road) has been paved.
With regard to all roads within Said Plat, Developer
r& Vshall dedicate to the City ten (10) feet of easement on
either side of the road for utility purposes and shall
dedicate to the City sixty (60) feet of right of way for
the road itself. The paved surface of the road shall be
forty-four (44) feet wide. In addition, the Developer
shall install concrete curb and gutter, water mains,
storm sewer and sanitary sewer, as required by the City
Engineer and all designed to City specifications, prior
to paving of the road. Said road, easements and rights -
of -way shall be dedicated to the City upon completion of
construction. Acceptance shall occur upon approval and
acceptance of the road by the City engineer and the City
Council. The Developer agrees to pay for the cost of
said road, and agrees to pay all costs incurred by the
City in constructing said road as detailed in paragraph
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2 below. IT IS AGREED THAT THIS OBLIGATION SHALL ACT AS
A COVENANT IN FAVOR OF THE CITY AND SHALL RUN WITH THE
LAND ON ALL PARCELS OF SAID PLAT. In the event Developer
sells any portion of Said Plat affected by this
paragraph, the purchaser of such land shall assume the
duties and responsibilities of Developer as to the
improvements required under this agreement.
C. Developer shall, at its own expense, cause street lights
to be installed of such type and at such locations as
required by the City Engineer.
D. Prior to constructing any improvements on Lot 1, Block 2,
Developer shall submit an erosion plan to the City for
approval by the City Engineer. Developer agrees to
implement those erosion control measures as required by
the City Engineer prior to disturbing the surface of Lot
1, Block 2.
2. Authorization to Construct Improvements and to Assess Costs of
Improvements to Barthel Commercial Park Land.
A. Developer agrees that it shall make such improvements as
described in paragraphs l(A) and 1(B) above at the time
and in the form as described in paragraphs 1(A) and l(B)
above. If Developer does not cause said improvements to
be constructed, Developer hereby authorizes the City to
enter upon Developer's land and construct all said
improvements described in paragraphs 1(A) and 1(B) above.
Developer agrees to pay for all said improvements,
whether constructed by Developer or by the City,
including all construction costs, engineer's fees,
attorney's fees, planner's fees, bonding costs,
capitalized interest, and such other costs as are
incurred by the City in constructing and assessing said
improvements. Developer agrees to pay the City (if City
makes said improvements) within 30 days of the date on
which the bill is mailed by the City to the Developer.
This authorization notwithstanding, the city shall not be
obligated to construct said improvements, but it may
elect to do so upon request or upon its own initiative.
B. If Developer fails to pay the City within thirty (30)
days of billing for said improvements authorized in
paragraph 2(A) above, Developer hereby petitions the City
to construct said improvements and hereby authorizes the
City to specially assess one hundred percent (100%) of
the cost of said improvements to any portion of the lands
or to all lands in Barthel Commercial Park owned by
Developer as of the date of this agreement. SAID
AUTHORIZATION TO CONSTRUCT IMPROVEMENTS AND TO SPECIALLY
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ASSESS SAID IMPROVEMENT COSTS SHALL RUN WITH THE LAND AND
SHALL BE BINDING UPON FUTURE OWNERS OF ANY SAID PARCELS
NOW OWNED BY THE DEVELOPER. DEVELOPER AND ALL FUTURE
OWNERS OF ANY PARCEL IN BARTHEL COMMERCIAL PARR HEREBY
WAIVE ANY OBJECTION TO BEING ASSESSED 100% OF THE COST OF
THE PROJECT AGAINST THE ABOVE DESCRIBED PROPERTY, AND
DEVELOPER AND ALL FUTURE OWNERS OF ANY PARCEL IN BARTHEL
COMMERCIAL PARR HEREBY WAIVE THEIR RIGHT TO APPEAL SAID
SPECIAL ASSESSMENT TO THE DISTRICT COURT HEREIN, PURSUANT
TO MINNESOTA STATUTE 429.081.
3. Surety and City's Right to Withdraw Funds.
A. The Developer shall provide the City with cash, approved
irrevocable letter of credit or other satisfactory surety
in the amount of nineteen thousand, nine hundred thirty-
three dollars ($19,933.00). Said surety shall be in a
form and from an issuer acceptable to the City Attorney.
Said surety shall be provided to the City as a guarantee
that the improvements required in paragraphs 1(A) and
1(B) shall be constructed and paid for by Developer. If
Developer fails to construct said improvements, the City
may, at its option, cause all such required improvements
to be constructed at Developer's expense and draw upon
said surety to pay for all or a portion of said
improvements. Said right to draw upon said surety shall
be in addition to and may be exercised simultaneously to
the City's right to assess all or a portion of the cost
of said improvements to any or all properties within Said
Plat.
B. 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 development of the subject property and
construction of the improvements detailed in paragraph 1
above, 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 payments) shall be supplemented with funds
withdrawn by the City from the Developer's approved
irrevocable 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
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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 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 or for other
purposes as enumerated elsewhere in this agreement.
4. Surety Release.
A. The Developer may request of the City a reduction or
release of any surety provided for in conjunction with
the improvements described in Paragraph 1 above, as
follows:
i. When another acceptable surety is furnished to the
City to replace a prior surety.
ii. When the final cost amount minus previous payments
becomes less than the surety provided, thus
allowing the surety to be reduced to a sum
commensurate with the remaining amount of the
project.
iii. No reduction shall be made which would result in
the surety held being less than thirty-five percent
(350) of the original surety until the final costs
are known.
iv. The Council may, at its discretion, release all or
a portion of the surety upon payment of seventy-
five percent (750) of all outstanding assessments
(if any) and upon completion of all non -assessable
improvements described in Paragraph 1 above.
B. The City's costs for processing any reduction request
shall be billed at $30 per hour plus any professional
fees incurred by the City, 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 of billing.
5. 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 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
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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.
6. 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 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. Such irrevocable letter of credit must contain a
provision requiring the issuer of the letter of credit to
notify the City within sixty (60) days prior to the expiration
of said irrevocable letter of credit. The form of said
irrevocable letter of credit shall be approved by the
Attorney prior to its issuance.
7. Park Dedication Fees. Developer agrees to pay park dedication
fees to the City for Lot 1, Block 2 of 5% of the fair market
value of Lot 1, Block 2, (land only) such fair market value to
be determined by the City Council based upon the value of the
"raw" land, zoned as commercial land, prior to the
construction of any improvements. The Council shall determine
the valuation of the land using the tax assessor's first
reassessment of Lot 1, Block 2 as commercial land, and shall
adjust, if necessary, for the value of any improvements added
by the Developer. Developer or its heirs, successors, or
assigns agree to pay additional park dedication fees to the
City as required by ordinance for Outlot A at such time as
Outlot A is replatted in whole or in part.
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
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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, or fails
to provide sufficient ground -cover 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 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 the Platted Properties. In the
event that said costs are not paid, the City may assess any
such costs against any or all of the Platted Property.
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, as well as any costs incurred by the City in
furtherance of the Plat or any of its developments. Developer
shall not be responsible for attorney's fees directly
attributable to the drafting and amendment of the City
ordinance relating to mini -storage warehouses. Developer
authorizes the City to specially assess these costs if the
Developer fails to pay these costs within 30 days of
submission of a bill by the City.
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 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
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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, the Developer hereby authorizes
the City to specially assess the costs of such activity
against any or all of the parcels in 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. If any portion, section, subsection, sentence, clause,
paragraph or phrase of this Contract is for any reason
held invalid, such decision shall not affect the validity
of the remaining portion of this Contract.
B. 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 act as a
waiver or release of any of the provisions of this
agreement.
C. This Contract shall run with the land and is to be
recorded against the title to the property. After the
Developer has completed the work required of it under
this Contract, including the construction of all
improvements described in paragraph 1 above, the City
will execute and deliver to the Developer a release upon
request by the Developer.
D. Developer agrees to observe all setback, height,
building, and other applicable restrictions as contained
in the Albertville City Ordinances. Building setbacks
shall be measured from the edge of the road right-of-way
easement.
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13. 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, 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 is hereby authorized to
then specially assess all amounts due under this
agreement against the Developer. The City may also 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. Breach of any of the terms of this Contract by the
Developer shall be grounds for denial of building permits
on any or all Platted Properties.
14. 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 improvements specified in paragraph
1 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.
15. 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
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.
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16. Developer Personally Bound by Contract. Developer shall be
personally liable for the fulfillment of all obligations under
this Contract. However, Developer may transfer all or part of
its ownership interest in Outlot A, and all duties and
obligations contained in this agreement with respect to said
transferred portion of Outlot A shall be the responsibility of
the new owners) of the portion or portions of Outlot A so
transferred.
17. Attorney's Fees. The Developer will pay all reasonable
attorneys 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. The Developer will also pay all reasonable
attorney's fees incurred by the City 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 in writing, delivered by hand (to the Clerk for the
City) or registered mail (addressed as follows) to the
following parties:
CITY OF ALBERTVILLE:
DEVELOPER:
City of Albertville
c/o City Clerk
P.O. Box 131
Albertville, MN 55301
Telephone: (612) 497-3384
Donald and Betty Barthel
P.O. Box 166
Albertville, MN 55301
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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,
Its Mayor (acting as)
D VELOPER,
on 1d G. Barthel
Betty/ . Barthel
STATE OF MINNESOTA
ss.
COUNTY OF WRIGHT
The foregoing instrument was acknowledged* before me this
Z day of S'-�� 1992, by Jim Walsh, Mayor
of the City of Albertville, a Minnesota municipal corporation, on
behalf of the City and pursuant to the authority of the City
Council. Donatus Vetsch acting
Notary Public
I.aNefta M. Van DWO
VO
issi
NCTARY PUBLIC-Ir MEWTA
WRIGHT COUNTY
My common Expkes,Aa�s 28.19"
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as Mayor
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STATE OF MINNESOTA )
ss.
COUNTY OF WRIGHT )
The {foregoing instrument was acknowledged before me this
o(4 day of (;i4�-- , 1992, by Linda Houghton,
Clerk 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
,, g' t.;u f rb?$1ftr1 LN
STATE OF MINNESOTA )
ss.
COUNTY OF WRIGHT )
The foregoing in trument was acknowledged before me this
4 7114 day of 1992, by Donald G. Barthel
and Betty L. Barthel.
Rota b is
[diOd NMri.Ce,i"'I 0l1
NaMYMIMIC•1MNI�O�fA
MINAn COUNTY
MrQw�IMNM E� 7�16�7
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a' rt�i� • �L2AfA Y1lAAA) t
Y
EXHIBIT A
That part of the Northwest Quarter of Section 1,
Township 120, Range 24, described as follows:
Beginning at the Northwest corner of said Section
1; thence East along the North line of said Section
1, a distance of 1235 feet to the Southerly right-
of-way line of the Burlington Northern Railroad;
thence deflecting to the right 280 581, along said
Southerly right-of-way, a distance of 74.3 feet;
thence deflecting to the right 620 061, a distance
of 718.03 feet; thence deflecting to the right, to
a point on the West line of said Section 1, 754
feet South of the Northwest corner of said Section
1; thence North to the point of beginning. Except
that part of said Northwest Quarter lying
Northwesterly of the centerline on County Road 19.
RETURN TO:
City of Albertville
Box 131
Albertville MN 55301
$17.00 Ck. #006865
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CFI CE OF C(?t' 3TY rECOROER
?G jT rot -)!#iY. MtNhE5QTt+
1f ,'D TO BE FILED
RECORDED ON
92 OCT 21 AM 89. 13
MARCIA IANT10, CO. FECGROER
aY DEPUTY