HomeMy Public PortalAbout2001-054 Resolution Granting Final Approval to the Plat of Medina HighlandsMember Bruce Workman introduced the following resolution and moved its adoption:
CITY OF MEDINA
RESOLUTION NO.01-54
RESOLUTION GRANTING FINAL APPROVAL TO THE
PLAT OF MEDINA HIGHLANDS
WHEREAS, the city of Medina (the "City") has received an application from Charles Cudd
Company (the "Developer") regarding the platting of certain land in Medina located generally south
of Evergreen Road extended and east of CSAH 101, which land is legally described in Exhibit A
attached hereto (the "Property"); and
WHEREAS, the Developer has a purchase agreement to purchase the Property from the fee
owner and intends to plat and develop the Property; and
WHEREAS, the preliminary plat of the Property submitted by the Developer was reviewed
by the planning commission on August 14, 2001 and, following a public hearing thereon as required
by law, the planning commission recommended approval of the preliminary plat, subject to certain
terms and conditions; and
WHEREAS, on September 4, 2001, the city council reviewed the preliminary plat for its
conformance with the ordinances of the City and the General Plan of Development submitted by the
Developer to guide development of the Property, considered the recommendations of the planning
commission, and heard the comments of the Developer and other interested parties regarding the
matter, and granted preliminary approval of said plat; and
WHEREAS, the Developer has prepared a final plat of the Property and has requested
approval thereof; and
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WHEREAS, the final plat has been reviewed by city staff for its conformance with the
teitlis of preliminary plat approval and of the City's ordinances.
NOW, THEREFORE, BE IT RESOLVED by the city council of the City of Medina,
Minnesota that final approval of the plat of Medina Highlands is hereby granted, conditioned upon
the adoption and publication of an ordinance rezoning the property to Planned Unit Development
and subject to the following terms and conditions:
1. The Developer must execute a P.U.D. Development Agreement in a form
satisfactory to the City;
2. The Developer must first obtain approval from the city if the Developer seeks to
replace the berm with plantings or a wall in the area in the southwest portion of the Property
adjacent to CSAH 101;
3. The Developer must obtain all required permits prior to filling or draining any
wetlands;
4. The Developer must comply with the comments and recommendations regarding
engineering matters outlined in the letter dated September 20, 2001, from Tom Kellogg of
Bonestroo, Rosene, Anderlik, & Associates to Loren Kohnen and any additional comments or
requirements which may result from the city engineer's review of the Developer's revised plans;
5. The Developer must pave Evergreen Road from CSAH 101 to the east edge of the
Property in the center of the road right-of-way and that portion of Evergreen Road east of Linden;
6. The Developer must pay an administrative fee to the city in an amount sufficient to
reimburse the city for the costs of reviewing the Planned Unit Development and preliminary plat of
the Property and related to drafting and negotiating the P.U.D. Development Agreement; and
7. The Developer must file the final plat for the Property with Hennepin County within
60 days of the date of this resolution or the final approval hereby granted shall be null and void.
NOW THEREFORE, BE IT FURTHER RESOLVED by the city council of the city of
Medina that the city attorney is directed to deliver the executed mylar plat to the Developer's closer
in escrow or otherwise take such step as are reasonably necessary to ensure that the plat is not
delivered to the Developer until the Developer has obtained fee title to the Property.
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Dated: October 2, 2001.
n B. Ferris, Mayor
Paul Robinson, Administrator -Clerk -Treasurer
The motion for the adoption of the foregoing resolution was duly seconded by member Carolyn
Smith and upon vote being taken thereon, the following voted in favor thereof:
Ferris, Lane, Smith, Workman, and Zietlow
and the following voted against same: None
Whereupon said resolution was declared duly passed and adopted.
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Exhibit A
The land to which this Development Agreement applies is located in Hennepin County, Minnesota
and is legally described as follows:
All that part of Lot 25, Auditor's Subdivision Number 241, Hennepin County, Minnesota,
described as follows:
Commencing at a point on the East line of said Lot, 578 feet North of the Southeast corner of
said Lot; thence West, and parallel with the South line of the Northeast'/a of Section 12,
Township 118, Range 23, to the West line of said Lot; thence North along the West lone of said
Lot to the North line of said Lot; thence East along the North line of said Lot to the East line of
said Lot; thence South along the East line of said Lot to the place of beginning.
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Exhibit A
P.U.D. DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MEDINA
AND
CHARLES CUDD, LLC
This document drafted by:
Kennedy & Graven, Chartered
470 Pillsbury Center
Minneapolis, MN 55402
(612) 337-9300 (RHB)
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TABLE OF CONTENTS
1. Zoning; Number of Units 1
2. Plans 1
3. Public Improvements 2
4. Streets 2
5. Sanitary Sewer, Water and Storm Water Improvements 4
6. Evergreen Right of Way 4
7. Site Grading 5
8. Landscaping 5
9. Letter of Credit; Contractor's Bond 5
10. Developer's Default 6
11. Insurance 6
12. Sanitary Sewer and Water Area Charges 6
13. Footing Drainage System 7
14. Park Dedication Requirements 7
15. Driveways 7
16. Water Quality 7
17. Responsibility for Costs 7
18. Final Site and Building Construction Plans 8
19. Erosion Control 8
20. Clean up 9
21. Compliance with Laws 9
22. Agreement Runs With the Land 9
23. Indemnification 9
24. Assignment 9
25. Notices 10
26. Severability 10
27. Non -waiver 10
28. Counterparts 10
TESTIMONIALS 11
SIGNATURES 11
EXHIBIT A
EXHIBIT B
LEGAL DESCRIPTION
LIST OF PLAN DOCUMENTS
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This P.U.D. Development Agreement (the "Agreement") is made and entered into this
day of October, 2001, by and between the city of Medina, a municipal corporation under the laws of
Minnesota (the "City") and Charles Cudd, LLC, a Minnesota limited liability company (the
"Developer").
WITNESSETH:
WHEREAS, the Developer has an agreement to purchase certain lands in Medina generally
located south of Evergreen Road extended and east of CSAH 101 (the "Property"). The Property is
legally described on Exhibit A attached hereto; and
WHEREAS, the Developer applied for approval of a plat and rezoning of the Property
pursuant to section 827.24 et sec . of the City's code of ordinances; and
WHEREAS, on June 5, 2001, the City granted approval of the Concept Plan of the Property
(the "Concept Plan") submitted by the Developer; and
WHEREAS, on September 4, 2001 the City granted approval of the General Plan of
Development (the "General Plan") for the Property and the preliminary plat of Medina Highlands;
and
WHEREAS, the rezoning of the Property pursuant to the General Plan is contingent upon
the Developer and the City entering into a development agreement.
NOW, THEREFORE, based on the mutual covenants and obligations contained herein, the
parties agree as follows:
1. Zoning; Number of Units. Subject to execution of this Agreement, the property has
been rezoned PUD pursuant to the General Plan. The Property may be developed with no more
than 68 residential townhouse units in 34 buildings. Development within the Property shall be
regulated by the terms and conditions of the City's land use controls, including but not limited to,
section 827.24 et sec . of the City's zoning ordinance, the City's subdivision regulations and the
General Plan.
2. Plans. The Developer agrees to develop the Property in accordance with the General
Plan and to construct all improvements within the Property in accordance with the approved plans
(collectively, the "Plans"). The documents which constitute the Plans are those on file with and
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approved by the City and are listed on Exhibit B attached hereto. The Plans may not be modified by
the Developer without the prior written approval of the City.
3. Public Improvements. All public improvements within the Property shall be installed
in accordance with the Plans and the City's subdivision regulations and specifications for utilities
and street construction. The Developer shall submit plans and specifications for utilities and street
construction prepared by a registered professional engineer. The Developer shall obtain any
necessary permits from the Minnesota pollution control agency, Minnesota department of health,
Elm Creek Watershed District and other agencies before proceeding with construction. The
Developer shall provide a level of field inspection acceptable to the City. The City reserves the
right to approve the identity of the Developer's field inspectors. The City shall have City inspectors
and engineers inspect the work at the Developer's expense. The Developer, its contractors and
subcontractors, shall follow all instructions received from the City's inspectors. Prior to beginning
construction, the Developer or the Developer's engineer shall schedule a preconstruction meeting
with all parties concerned, including the City staff and engineers, to review the program for the
construction work. Within 30 days after the completion of the improvements, or any segment
thereof if constructed in stages, the Developer shall supply the City with a complete set of
reproducible "as constructed" plans and two complete sets of blue line "as constructed" plans, each
prepared in accordance with City standards and in AutoCADD format. Iron monuments must be
installed in accordance with state law. The Developer's surveyor shall submit a written notice to the
City certifying that the monuments have been installed.
4. Streets. a) The Developer agrees to install all streets in Medina Highlands in
accordance with City specifications and the Plans. The City's street specifications are
contained in the most recent edition of its engineering standards (the "Engineering
Standards"), which is hereby incorporated into this Agreement by reference. If there is a
conflict between the Plans and the Engineering Standards, the Engineering Standards shall
prevail except when an alternative has been explicitly approved in writing by the City.
Following completion of the streets and inspection thereof by the city engineer, the City
agrees to accept the streets for maintenance if they are deemed by the City to have been
constructed according to City specifications, including the Engineering Standards, and the
Plans. Prior to accepting the streets for maintenance, the City agrees to remove snow from
any street or section of street which has a bituminous base and along which is located at
least one occupied home. In return for the City agreeing to plow snow prior to acceptance of
the streets, the Developer agrees to indemnify and hold the City harmless against any claim
or action for injury or damage to the streets or adjacent properties. After the streets have
been accepted by the City, they will be posted each spring for weight limits in accordance
with the City's ordinances and policies.
b) In order to allow the Developer to grade the Property and to construct the
streets and related utility improvements, the City hereby agrees to grant to the Developer a
temporary easement for purposes of street and utility installation over, under and across the
rights -of -way as shown on the plat of Medina Highlands. The easement will commence
upon filing of the plat of Medina Highlands with Hennepin County and shall terminate upon
acceptance of the streets or street segments by the City for maintenance.
c) The Developer shall be permitted to install the final wear course on each
street when construction of at least 90 percent of the houses on the street or street segment
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have been completed. Notwithstanding the foregoing, the Developer and the City may
agree to waive this requirement and allow the Developer to install the final wear course at an
earlier time.
d) The Developer agrees to warrant the streets against defects in labor and
materials for a period of two years from the date of acceptance of the street or street segment
by the City. During such period, the Developer agrees to repair or replace any street or
street segment which shows signs of failure, normal wear and tear excepted. A decision
regarding whether a street or street segment shows signs of failure shall be made by the City
in the exercise of its reasonable judgment. If the Developer fails to repair or replace a
defective street or street segment during the warranty period, the City may repair or replace
the street or street segment and may use the Letter of Credit, as hereinafter defined, to
reimburse itself for such costs. The Developer agrees to reimburse the City fully for the cost
of street repair or replacement if the cost thereof exceeds the remaining amount of the Letter
of Credit. Such reimbursement must be made within 30 days of the date upon which the
City notifies the Developer of the cost due under this paragraph. The Developer hereby
agrees to permit the City to specially assess any unreimbursed costs against any unsold lots
within Medina Highlands if the Developer fails to make required payments to the City. The
Developer, on behalf of itself and its successors and assigns, acknowledges the benefit to the
lots within Medina Highlands of the street improvements and hereby consents to such
assessment and waives the right to a hearing or notice of a hearing or any appeal thereon.
e) If building permits are issued prior to the completion and acceptance of all
public improvements serving the lot, the final wear course of bituminous excepted, the
Developer assumes all liability and costs resulting in delays in completion of the
improvements and damage to the improvements caused by the City, the Developer, its
contractors, subcontractors, materialmen, employees, agents, or third parties. No sewer
and water connection permits shall be issued and there shall be no occupancy or use of
any structure for which a building permit has been issued on either a temporary or
permanent basis until the streets needed for access have been paved with a bituminous
surface and the sanitary sewer and water utilities have been accepted by the City.
Notwithstanding the above, the City agrees to issue building permits for two model
homes (one structure) pursuant to paragraph 18(b) of this Agreement.
f) The Developer agrees to install street lighting and street signs within Medina
Highlands. Street lighting shall include lighting fixtures approved by the City and shall be equipped
with luminaries which allow no light more than 5 percent above the horizontal plane. Street signs
shall be of a design approved by the City and shall be dedicated by the Developer to the City after
installation and acceptance by the City. The Developer shall pay for the cost of the street lighting
and street signs. The Developer agrees to form a homeowners' association for the 68 units within
Medina Highlands (the "Homeowners' Association"). The Homeowners' Association will be made
responsible for maintenance and replacement of the street lighting fixtures and street signs if
maintenance is not provided by the electric utility company.
5. Sanitary Sewer, Water and Storm Water Improvements. a) The City has previously
constructed sanitary sewer and water to serve the Wild Meadows development northwest of
the Property. The Developer agrees to extend sanitary sewer and water from the Wild
Meadows subdivision to Medina Highlands and within Medina Highlands to serve each lot.
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All lots within Medina Highlands must be served by sanitary sewer and water. The
Developer also agrees to construct the storm water improvements in accordance with the
Plans. The Developer's work in extending utilities must be in accordance with the Plans
and must comply with all City requirements regarding such utilities. The easement hereby
granted by the City to the Developer regarding construction of the streets shall also permit
construction of the utilities.
b) In approving the General Plan for the Property, the City has allocated 68
sewer units to Medina Highlands. The Developer recognizes that the City is subject to
limitations on the number of sanitary sewer units which may be utilized within Medina until
certain facility improvements are made by the Metropolitan Council and, therefore, that the
City's allocation of 68 units to Medina Highlands is valuable. The allocation is specific to
the approved General Plan for the Property and may not be utilized by the Developer or
assignees except in compliance with the General Plan and construction of all improvements
pursuant to the Plan. The Developer may utilize the sewer units at a rate no greater than 16
in 2001, 27 in 2002 and 25 in 2003. Unutilized units may be used in future years. Issuance
of a building permit by the City for construction of a townhouse on a platted lot within
Medina Highlands constitutes use of an allocated sewer unit.
c) The Developer agrees to warrant the sanitary sewer, water and storm water
improvements against defects in labor and materials for a period of two years from the date
of acceptance of the utilities by the City. During such period, the Developer agrees to repair
or replace any utility improvement which shows signs of failure, normal wear and tear
excepted. The City in the exercise of its reasonable judgment shall make a decision
regarding whether any utility improvement or segment thereof shows signs of failure. If the
Developer fails to repair or replace defective utilities during the warranty period, the City
may repair or replace the utility or utility segment and may use the Letter of Credit to
reimburse itself for such costs. The Developer agrees to reimburse the City fully for the cost
of the repair or replacement if it exceeds the remaining amount of the Letter of Credit. Such
reimbursement shall be made within 30 days of the date upon which the City notifies the
Developer of the cost due under this paragraph. The Developer hereby agrees to permit the
City to specially assess any unreimbursed costs against any unsold lots within Medina
Highlands if the Developer fails to make required payments to the City. The Developer, on
behalf of itself and its successors and assigns, acknowledges the benefit to the lots within
Medina Highlands of the sanitary sewer, water and storm water improvements and hereby
consents to such assessment and waives the right to a hearing or notice of a hearing or any
appeal thereon.
6. Evergreen Right of Way. The City and the Developer anticipate that the land
immediately north of the Property will be developed in the near future and a portion of the
right-of-way for the extension of Evergreen Road is proposed to be located on this property.
The Developer agrees to obtain a deed to the City from the fee owner of said land for the
portion of the Evergreen right-of-way not on the Property. The Developer also agrees to
relocate the driveway serving said property in a location acceptable to the City and the land
owner and to plant four six-foot black hills spruce trees to screen the garage in a location
agreeable to the land owner.
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7. Site Grading. In order to construct the streets, sanitary sewer, water and storm water
improvements and otherwise prepare the Property for development, it will be necessary for the
Developer to grade the Property. All site grading must be done in compliance with the Plans.
Within 30 days after completion of the grading, the Developer shall provide the City with an "as
constructed" grading plan and a certification by a registered land surveyor or engineer. The City
may withhold issuance of building permits until the approved certified grading plan is on file
with the City and all erosion control measures are in place as determined by the City.
8. Landscaping. The Developer agrees to install street landscaping on the right-of-way
and landscaping on each lot within Medina Highlands according to the Plans. All landscaping
within Medina Highlands shall include hardy, non-invasive species appropriate for Minnesota. All
landscaping materials shall be maintained and replaced if they die within the standard warranty
period. The Developer shall install all street landscaping and maintain it until responsibility therefor
is transferred to the Homeowners' Association, which shall have on -going responsibility for
maintenance and replacement. The Developer shall be responsible for installing the lot landscaping
and maintaining it until sale of the lot to a home buyer or transfer of responsibility to the
Homeowners' Association. The Homeowners' Association shall assume responsibility for
maintenance of any common areas after they are turned over to it by the Developer. The Developer
shall install all landscaping in compliance with the Plans and provide through the restrictive
covenants applicable to Medina Highlands (the "Covenants") that landscaping not be planted so as
to interfere with site drainage and that fertilizers containing phosphorous be prohibited. Any
automatic water irrigation systems within Medina Highlands shall be equipped with rain sensors or
soil moisture sensors and shall be under the control of the Homeowners' Association.
9. Letter of Credit; Contractor's Bond. a) In order to ensure completion of the streets,
sanitary sewer, water, grading, storm water and other improvements, the Developer agrees
to deliver to the City prior to beginning any construction within Medina Highlands a letter
of credit (the "Letter of Credit") in the amount of $1,764,392. The Letter of Credit shall be
in a form acceptable to the City and shall allow the City to draw upon the instrument, in
whole or part, in order to complete construction of any or all of the improvements or to
satisfy the claims of contractors or suppliers which have not been satisfied by the Developer.
The City agrees to release or reduce the Letter of Credit upon substantial completion of all
improvements within the subdivision. Prior to releasing any portion of the Letter of Credit
or accepting another letter of credit in replacement, the City shall first be satisfied regarding
the quality and completeness of the construction or work and that the Developer has taken
such steps as may be necessary to ensure that no liens will attach to Medina Highlands.
Notwithstanding anything herein to the contrary, the City shall require or retain a letter of
credit equal to 75 percent of the cost of the final lift of the street pavement for a period of
two years after acceptance of each street or street segment.
b) The City and the Developer have negotiated an Early Construction
Agreement (the "Early Construction Agreement") regarding extension of sanitary sewer and
water from the Wild Meadows subdivision to Medina Highlands. If the Developer proceeds
to utilize the Early Construction Agreement and delivers a letter of credit thereunder to the
City, the City acknowledges that the Developer intends to replace said letter of credit with
the Letter of Credit required under this paragraph 9 prior to beginning construction on the
remainder of the utilities within Medina Highlands.
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c) Upon completion of a street or street segment or sanitary sewer, water or
storm sewer improvements and acceptance thereof by the City and for purposes of satisfying
its obligations related thereto under paragraphs 4(d) and 5(c) of this Agreement, the
Developer may deliver to the City a performance bond from the Developer's contractor in
an amount suitable to ensure the quality of the work. In such event, the City agrees to (i)
reduce the Letter of Credit in an amount which, in the reasonable judgment of the City, is
offset by the performance bond, and (ii) first make a claim against the performance bond
and the contractor before making a claim against the Letter of Credit for any claims arising
under paragraphs 4(d) or 5(c) of this Agreement.
10. Developer's Default. In the event of default by the Developer as to any of the
street, sanitary sewer, water or storm sewer utility work to be performed by it hereunder, the City
may, at its option, perform the work and the Developer shall promptly reimburse the City for any
expense incurred by the City. This Agreement is a license for the City to act, and it shall not be
necessary for the City to seek an order from any court for permission to enter the Property for
such purposes. If the City does any such work, the City may, in addition to its other remedies,
levy special assessments against the unsold lots within Medina Highlands to recover the costs
thereof. For this purpose, the Developer expressly waives any and all procedural and substantive
objections to the special assessments, including but not limited to, hearing requirements and any
claim that the assessments exceed the benefit to the land so assessed. The Developer waives any
appeal rights otherwise available pursuant to Minnesota Statues, section 429.081.
11. Insurance. The Developer agrees to take out and maintain or cause to be taken
out and maintained until six months after the City has accepted the public improvements, public
liability and property damage insurance covering personal injury, including death, and claims for
property damage which may arise out of Developer's work or the work of its contractors or
subcontractors. Limits for bodily injury and death shall be no less than $1,000,000 for each
occurrence. Limits for property damage shall be not less than $500,000 for each occurrence or a
combination single limit policy of $1,000,000 or more. The City shall be named as an additional
insured on the policy. The Developer shall file with the City a certificate evidencing coverage
prior to the City signing the plat of Medina Highlands. The certificate shall provide that the City
must be given 30 days advance written notice of the cancellation of the insurance.
12. Sanitary Sewer and Water Area Charges. a) In accordance with City policy and to
distribute uniformly the costs of public utility infrastructure improvements, the City will
charge the Developer area fees for the availability of sanitary sewer and water to Medina
Highlands. The City's availability charges are $1,705 per residential unit for water and
$1,705 per residential unit for sanitary sewer. The total area charges due for all lots
within Medina Highlands will be $231,880. The sanitary sewer and water area charges
shall be paid by the Developer in accordance with paragraph 12(b) of this Agreement.
b) Payment of sanitary sewer and water area charges and park dedication fees
shall be made in accordance herewith. In order to allocate the limited sewer capacity
available to Medina Highlands, the City and the Developer have agreed that no more than
16 building permits may be issued in 2001, no more than an additional 27 may be issued
in 2002 and the remaining 25 may be issued in 2003. The Developer agrees to pay the
full sewer and water area charge and park dedication fee for 16 units upon issuance of the
first permit, including any permit issued for a model home. This represents a sewer and
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water area charge of $54,560 and a park dedication fee of $52,800. Upon issuance of the
17th building permit, whenever such permit shall be issued, the Developer agrees to pay
the sewer and water area charges and park dedication fees due for the next 271ots. This
represents a sewer and water area fee of $92,070 and a park dedication fee of $89,100.
Upon issuance of the 44th building permit, whenever such permit shall be issued, the
Developer agrees to pay the sewer and water area charges and the park dedication fees
for the last 251ots. This represents a sewer and water area charge of $85,250 and a park
dedication fee of $82,500.
13. Footing Drainage System. The Developer agrees to install a footing drainage system
around the perimeter of each townhouse to be constructed within Medina Highlands. The purpose
of the footing drainage system is to prevent discharge of sump pumps into the sanitary sewer. The
system shall consist of drain pipe leading from the back of the house to a drainage easement. A
plan for each such system shall be submitted to the City for approval at the time of application for a
building permit. An as -built plan prepared by the Developer for each such system shall be
submitted to the City and the homeowner prior to issuance of a certificate of occupancy.
Construction of a footing drainage system shall be required for all lots but the City may waive the
requirement on a case by case basis if, in its sole judgment, a footing drainage system is deemed
unnecessary to assure adequate lot drainage.
14. Park Dedication Requirements. Section 820.31 of the City's code of ordinances
requires the Developer to dedicate land to the City for parks or pay cash in lieu thereof. The City
elects to require cash in lieu of land within Medina Highlands. The City and the Developer agree
that a park dedication fee of $3,300 per unit shall be paid. The park dedication fee in the total
amount of $224,400 shall be paid by the Developer in accordance with paragraph 12(b) of this
Agreement.
15. Driveways. The Developer is aware of and agrees to locate driveways and off-street
parking in accordance with City requirements. Driveways shall be no wider than 24 feet at the curb
and shall otherwise be constructed in compliance with sections 400 et seq. and 830 et seq. of the
City code of ordinances.
16. Water Quality. Because the water lines which will serve Medina Highlands will be
at or near the end of the City's current service area and due to the mineral content of the City's
drinking water, it is anticipated that at times the quality of the water available to Medina Highlands
may be less than desirable. In recognition of this possibility, the Developer agrees to provide
prospective townhouse purchasers with a disclosure statement regarding the quality of the water
likely to be available within Medina Highlands. The disclosure statement must be approved by the
City for use in connection with the sale of townhouses in Medina Highlands prior to its distribution
or use by the Developer.
17. Responsibility for Costs. a) The Developer agrees to pay to the City an
administrative fee in the amount necessary to reimburse the City for its costs and expenses
in reviewing the plat and rezoning Medina Highlands, including the drafting and negotiation
of this Agreement. The Developer agrees to reimburse the City in full for such costs within
30 days after notice in writing by the City. The Developer agrees to reimburse the City for
the cost incurred in the enforcement of any provision of this Agreement, including
reasonable engineering and attorneys' fees. The Developer shall also pay a fee for City
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construction observation and administration. Construction observation shall include
inspection of proposed public utilities, street construction and restoration work. Fees for
inspection services for Medina Highlands are estimated to be 5 percent of the estimated
cost of the improvements and work.
b) To reimburse the City for the administrative fee and the cost of inspection
of the work, the Developer shall deposit an additional $20,000 into an escrow account
with the City, which shall receive and hold such funds solely under the terms of this
Agreement. The $20,000 is in addition to funds previously deposited by the Developer
and shall be paid at the time of execution of this Agreement. The City will pay the
administrative fees and the costs for inspection and engineering services from the escrow
as billed for actual time spent. If any funds held under this Agreement remain after
payment of the above, such funds shall be returned to Developer. If it appears that the
actual costs incurred will exceed the estimate, Developer and City shall review the costs
required to complete the project and the Developer shall deposit additional sums with the
City.
18. Final Site and Building Construction Plans. a) The City's approval of the
Developer's General Plan does not include approval of final site and building construction
plans. The Developer must submit and the City must approve final site and building
construction plans prior to the Developer's application for building permits for structures
within Medina Highlands. The Developer must submit with each building permit
application a survey showing all structures, driveways, easements, patios and other
impervious surfaces, grading, topography and lowest floor elevations. Grading operations
on each lot must provide reasonable protection of the top soil to minimize compaction on
the site.
b) Following approval of final site and building construction plans and
installation of the gravel street base and first lift of paving, the City may issue building
permits for construction of the townhouses. Such permits shall be issued only in compliance
with the building and other applicable codes and after payment of all fees due and owing.
The occupancy or use of any such structures shall be prohibited until the street upon which it
is located is paved and the footing drainage system, if required, has been installed.
Notwithstanding the above and upon request by the Developer, the City agrees to grant a
permits for two model homes (one structure) on a lot to be agreed upon by the Developer
and the City. No permit for a model home shall be issued until the aggregate street base and
sanitary sewer and water have been installed. No use or occupancy of a model home shall
be permitted until the street is paved with a bituminous surface and the sanitary sewer and
water have been installed.
19. Erosion Control. All construction within Medina Highlands shall be conducted in a
manner designed to control erosion. Before the site is rough graded, an erosion control plan shall
be implemented by the Developer and reviewed by the City. The City may impose additional
erosion control requirements if the City deems necessary. All areas disturbed by the excavation
shall be reseeded promptly after the completion of the work in that area. Except as otherwise
provided in the erosion control plan, seed shall provide a temporary ground cover as rapidly as
possible. All seeded areas shall be fertilized, mulched, and disc anchored as necessary for seed
retention. The parties recognize that time is of the essence in controlling erosion. If the
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Developer does not comply with the erosion control plan and schedule or supplementary
instructions received from the City, the City may take such action as it deems appropriate to
control erosion. The City will endeavor to notify the Developer in advance of any proposed
action, but failure of the City to do so will not affect the Developer's obligations or the City's
rights hereunder. Developer will reimburse all expenses incurred by the City in connection with
such actions. No utility or street construction will be allowed and no building permits will be
issued in The Property unless the Developer is in full compliance with the erosion control
requirements.
20. Clean up. The Developer shall daily clean dirt and debris from streets that have
resulted from construction work by the Developer, its contractors, agents or assigns. Prior to any
construction in Medina Highlands, the Developer shall identify to the City in writing a
responsible party for erosion control, street cleaning, and street sweeping.
21. Compliance With Laws. The Developer agrees to comply with all laws, ordinances
and regulations of the state of Minnesota and the City applicable to Medina Highlands. This
Agreement shall be construed according to the laws of Minnesota. Breach of the terms of this
Agreement by the Developer shall be grounds for denial of building permits, including permits for
lots sold to or being developed by third parties.
22. Agreement Runs With the Land. This Agreement shall run with the land and
shall be recorded against the title to the Property. The Developer covenants with the City, its
successors and assigns, that the Developer will obtain fee title to the Property prior to recording
this Agreement or the issuance of any building permits; that there are no unrecorded
encumbrances or interests relating to the Property; and that the Developer will indemnify and
hold the City harmless for any breach of the foregoing covenants. As the Developer sells
townhouses to independent third party buyers, the City's administrator -clerk -treasurer is
authorized to execute releases of individual lots from the terms of this Agreement, but said
individual lot releases shall not in any way release the Developer from any of its obligations
hereunder.
23. Indemnification. The Developer hereby agrees to indemnify and hold the City and
its officers, employees, and agents harmless from claims made by itself and third parties for
damages sustained or costs incurred resulting from approval of the plat of the Medina Highlands
or the General Plan for the Property. The Developer hereby agrees to indemnify and hold the
City and its officers, employees, and agents harmless for all costs, damages, or expenses which
the City may pay or incur in consequence of such claims, including attorneys' fees, except
matters involving acts of gross negligence by the City.
24. Assignment. The Developer may not assign this Agreement without the written
permission of the City. The Developer's obligation hereunder shall continue in full force and
effect even as the Developer sells lots within Medina Highlands.
25. Notices. Any notice or correspondence to be given under this Agreement shall be
deemed to be given if delivered personally or mailed postage prepaid, certified mail, return receipt
requested:
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a) as to Developer: Charles Cudd, LLC
International Market Square
275 Market Street, Suite 445
Minneapolis MN 55405
ATTN: Robert Leistikow
b) as to City:
with a copy to:
City of Medina
2052 County Road 24
Hamel, MN 55340
ATTN: City Administrator -Clerk -Treasurer
Ronald H. Batty
Kennedy & Graven
470 Pillsbury Center
200 South Sixth Street
Minneapolis, MN 55402
or at such other address as either party may from time to time notify the other in writing in
accordance with this paragraph.
26. Severability. In the event that any provision of this Agreement shall be held invalid,
illegal or unenforceable by any court of competent jurisdiction, such holding shall pertain only to
such section and shall not invalidate or render unenforceable any other provision of this Agreement.
27. Non -waiver. Each right, power or remedy conferred upon the City by this
Agreement is cumulative and in addition to every other right, power or remedy, express or
implied, now or hereafter arising, or available to City at law or in equity, or under any other
agreement. Each and every right, power and remedy herein set forth or otherwise so existing
may be exercised from time to time as often and in such order as may be deemed expedient by
the City and shall not be a waiver of the right to exercise at any time thereafter any other right,
power or remedy. If either party waives in writing any default or nonperformance by the other
party, such waiver shall be deemed to apply only to such event and shall not waive any other prior
or subsequent default.
28. Counterparts. This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be an original and shall constitute one and the same Agreement.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed on
the day and year first above written.
STATE OF MINNESOTA
COUNTY OF
) ss
CITY OF MEDINA
By
John B. Ferris, Mayor
By
Paul Robinson
Administrator -Clerk -Treasurer
The foregoing instrument was acknowledged before me this day of October, 2001, by
John B. Ferris and Paul Robinson, the Mayor and Administrator -Clerk -Treasurer, respectively, of
the city of Medina, a Minnesota municipal corporation, on behalf of the municipal corporation.
Notary Public
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CHARLES CUDD, LLC
By
Its
By
Its
STATE OF MINNESOTA )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of October, 2001, by
and , the and
of Charles Cudd, LLC, a Minnesota limited liability company, on behalf
of the limited liability company.
Notary Public
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EXHIBIT A TO
DEVELOPMENT AGREEMENT
The land to which this Development Agreement applies is located in Hennepin County, Minnesota
and is legally described as follows:
All that part of Lot 25, Auditor's Subdivision Number 241, Hennepin County,
Minnesota, described as follows:
Commencing at a point on the East line of said Lot, 578 feet North of the Southeast
corner of said Lot; thence West, and parallel with the South line of the Northeast'/a of Section
12, Township 118, Range 23, to the West line of said Lot; thence North along the West lone of
said Lot to the North line of said Lot; thence East along the North line of said Lot to the East
line of said Lot; thence South along the East line of said Lot to the place of beginning.
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EXHIBIT B TO
DEVELOPMENT AGREEMENT
The following documents collectively constitute the Plans:
Sheet Revision Title Revision Date
1/1 B Final Grading Plan 10/9/01
1/11 B Title Sheet 10/5/01
2/1 1 B Street Plan & Profile (Linden Dr. E. & W.) 10/5/01
3/ 1 1 B Street Plan & Profile (Lilac Drive) 10/5/01
4/ 1 1 B Street Plan & Profile (Linden Dr. & W.) 10/5/01
5/ 1 1 B Sanitary Sewer and Watermain 10/5/01
6/1 1 B Sanitary Sewer and Watermain 10/5/01
7/ 1 1 B Sanitary Sewer and Watermain 10/5/01
8/11 B Storm Sewer Plan 10/5/01
9/11 B Storm Sewer Plan 10/5/01
10/11 B Detail Sheet 10/5/01
11/11 B Detail Sheet 10/5/01
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01-53
October 2, 2001