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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 RHB-203592v I ME230-315 1 01-54 October 2, 2001 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. RHB-203592v 1 ME230-315 2 01-54 October 2, 2001 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. RHB-203592v 1 ME230-315 3 01-54 October 2, 2001 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. RHB-203592v l ME230-315 4 01-54 October 2, 2001 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) RHB-202755v3 ME230-315 3 01-53 October 2, 2001 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 RHB-202755v3 ME230-315 4 01-53 October 2, 2001 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 RHB-202755v3 ME230-315 5 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 RHB-202755v3 ME230-315 6 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. RHB-202755v3 ME230-315 7 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. RHB-202755v3 ME230-315 8 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. RHB-202755v3 ME230-315 9 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 RHB-202755v3 ME230-315 10 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 RHB-202755v3 ME230-315 11 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 RHB-202755v3 ME230-315 12 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: RHB-202755v3 ME230-315 13 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. RHB-202755v3 ME230-315 14 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 RHB-202755v3 ME230-315 15 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 RHB-202755v3 ME230-315 16 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. RHB-202755v3 ME230-315 17 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 RHB-203631 v 1 ME230-315 18 01-53 October 2, 2001