HomeMy WebLinkAbout08-11-2008A.
CQ
C.
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MINUTES
MAPLEWOOD CITY COUNCIL
6:30 p.m., Monday, August 11, 2008
Council Chambers, City Hall
Meeting No. 21-08
CALL TO ORDER
A meeting of the City Council was held in the City Hall Council Chambers and was called to order
at 6:35 p.m. by Mayor Longrie.
PLEDGE OF ALLEGIANCE
ROLL CALL
Diana Longrie, Mayor Present
Erik Hjelle, Councilmember Present
Kathleen Juenemann, Councilmember Present
John Nephew, Councilmember Present
Will Rossbach, Councilmember Present
APPROVAL OF AGENDA
Councilmember Rossbach moved to approve the agenda as submitted.
Mayor Longrie seconded.
Ayes - All
Councilmember Juenemann made a friendly amendment to add 1)Follow-up to National Night
Out and 2) Ramsey County Dispatch update under Council Presentations.
Councilmember Rossbach and Mayor Longrie accepted the friendly amendment to add the two
items under Council Presentations.
The motion passed.
APPROVAL OF MINUTES
Approval of the July 28, 2008, City Council Workshop Minutes
Councilmember Rossbach said he thought when the Closed Session ended that the council took
a vote but that was not reflected in the minutes. (The Recording Secretary added that information
to the minutes.)
Councilmember Juenemann moved to approve the July 28, 2008, City Council Workshop Minutes
as amended.
Seconded by Councilmember Nephew. Ayes — All
The motion passed.
August 11, 2008
City Council Meeting Minutes
Approval of the July 28, 2008, City Council Meeting Minutes
Councilmember Nephew said on page 3, item F. 1., a. Mr. Schelling was asking at what point not
at one point. Under item F. 1. c. there should be a period, not a question mark.
Councilmember Nephew moved to approve the July 28, 2008, City Council Minutes as amended.
Seconded by Mayor Longrie. Ayes — All
The motion passed.
F. VISITOR PRESENTATIONS — PART I
Anne Fosburg, 2516 Idaho Avenue East, Maplewood. Ms. Fosburg asked if the city could
legally close Sterling Street without a public hearing?
City Attorney, Alan Kantrud and Mayor Longrie responded to Ms. Fosburg's question.
2. Dave Schelling, 1955 Greenbrier Street, Maplewood. Mr. Schelling discussed the cost of
running a city. Mr. Schelling also discussed other matters he brought up at the July 28,
2008, city council meeting. Mr. Schelling stated he would like the City of Maplewood to
print the salaries of the department heads in the City News as was done a couple years
ago. He also commented on the condition of Roselawn Avenue (a street that was given to
the City of Maplewood by Ramsey County) because the road is in disrepair and he asked
what was going to be done about it. Mr. Schelling asked how much more debt the city can
take on and what impact this will have on the residents.
Mayor Longrie asked Mr. Ahl to send Mr. Schelling information regarding how much
additional debt the City of Maplewood can withstand and the impact that amount of debt
will have on the residents and the city. Mr. AN agreed to do so.
3. John Wykoff, 2345 Maryland Avenue, Maplewood. Mr. Wykoff shared his opinions
regarding the following: the disfunction of the City of Maplewood, the Annual Financial
Report, having Greg Copeland's name cleared and allowing him to be rehired at the city
and his concern that the owners of Wipers Recycling were beaten up.
4. Ron Cockriel, 943 Century Avenue, Maplewood. Mr. Cockriel discussed the Friends of
Maplewood Nature Center 2009 Calendar. The cost is $10 and the proceeds will go to the
Nature Center. Mr. Cockriel also stated there will be a photo contest for the 2010
calendar. A donation of preserves was also given to each of the councilmembers.
5. Carolyn Peterson, 1801 Gervais Avenue, Maplewood. Ms. Peterson is from the
Maplewood Historical Society. Ms. Peterson invited everyone to attend Johnny Appleseed
Day at the Bruentrup Heritage Farm, 2170 County Road D East in Maplewood on August
16, 2008, from 11:00 a. m. — 3:00 p.m. there is a donation of $2.
6. Bob Zick, 2515 White Bear Avenue, Maplewood. Mr. Zick gave his opinion regarding the
disfunction of the City of Maplewood and shared opinions about other matters that he has
repeated at previous council meetings.
G. ADMINISTRATIVE PRESENTATIONS
None.
August 11, 2008 2
City Council Meeting Minutes
H. COUNCIL PRESENTATIONS (moved to the end of the council meeting)
1. Follow Up on National Night Out — (added by Councilmember Juenemann)
2. Dispatch Policy Update — (added by Councilmember Juenemann)
APPOINTMENTS AND PRESENTATIONS
IT Highlight Presentation — (No Report)
a. IT Director, Mychal Fowlds gave a power point presentation regarding the IT
Department for 2007-2008.
2. Citizen Services Presentation — (No Report)
a. City Clerk, Director of Citizen Services, Karen Guilfoile gave a power point
presentation regarding divisions within Citizen Services for 2007-2008.
J. PUBLIC HEARINGS
Linwood Avenue Water and Sanitary Sewer Extension Under City Project 07-14
a. Assessment Hearing 7:00 p.m.
b. Resolution for Adoption of Assessment Roll (3 parcels)
c. City Engineer, Michael Thompson gave the report.
Mayor Longrie opened the public hearing.
There were no speakers to come forward.
Councilmember Nephew moved to approve the Resolution for the Adoption of the Assessment
Roll for the Linwood Avenue Water and Sanitary Sewer Extension Under City Project 07-14.
RESOLUTION 08-08-115
ADOPTING ASSESSMENT ROLL
WHEREAS, pursuant to a resolution adopted by the City Council on July 14, 2008, calling
for a Public Hearing, the assessment roll for the Linwood Avenue Sewer/Water Extension under
Ferndale -Geranium Area Street Improvements, City Project 07-14, was presented in a Public
Hearing format, pursuant to Minnesota Statutes, Chapter 429, and
And, WHEREAS, the following property owners have filed objections to their assessments
according to the requirements of Minnesota Statutes, Chapter 429, summarized as follows:
None as of August 5, 2008.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD,
M I N N ESOTA:
1. That the City Engineer and City Clerk are hereby instructed to review the objections received
and report to the City Council at the regular meeting on August 25, 2008, as to their
recommendations for adjustments.
2. The assessment roll for the Linwood Avenue Sewer/Water Extension under Ferndale -
Geranium Area Street Improvements as amended, without those property owners'
assessments that have filed objections, a copy of which is attached hereto and made a part
hereof in the form of signed assessment objection waivers for the three subject parcels, is
hereby adopted. Said assessment roll shall constitute the special assessment against the
August 11, 2008 3
City Council Meeting Minutes
lands named therein, and each tract of land therein included is hereby found to be benefited
by the proposed improvement in the amount of the assessment levied against it.
3. Such assessments shall be payable in equal annual installments extending over a period of
15 years, the first installments to be payable on or before the first Monday in January 2009
and shall bear interest at the rate of 6.0 percent per annum for the date of the adoption of this
assessment resolution. To the first installment shall be added interest on the entire
assessment from the date of this resolution until December 31, 2008. To each subsequent
installment when due shall be added interest for one year on all unpaid installments.
4. The owner of any property so assessed may, at any time prior to certification of the
assessment to the county auditor, but no later than October 1, 2008, pay the whole of the
assessment on such property, with interest accrued to the date of the payment, to the city
clerk, except that no interest shall be charged if the entire assessment is paid within 30 days
from the adoption of this resolution; and they may, at any time after October 1, 2008, pay to
the county auditor the entire amount of the assessment remaining unpaid, with interest
accrued to December 31 of the year in which such payment is made. Such payment must be
made before November 15 or interest will be charged through December 31 of the next
succeeding year.
5. The city engineer and city clerk shall forthwith after October 1, 2008, but no later than
November 15, 2008, transmit a certified duplicate of this assessment to the county auditor to
be extended on the property tax lists of the county. Such assessments shall be collected and
paid over the same manner as other municipal taxes.
Adopted by the council on this 11th day of August 2008.
Seconded by Councilmember Juenemann. Ayes — All
The motion passed.
2. Dynamic Display Sign Ordinance (Second Reading)
a. Environmental Planner, Shann Finwall addressed the council, gave the report and
answered questions of the council.
b. City Attorney, Alan Kantrud answered questions of the council.
c. Acting City Manager, Chuck Ahl answered questions of the council.
Mayor Longrie opened the public hearing.
1. Chad Kulas, Saint Paul Area Chamber of Commerce, 401 Robert Street North, St. Paul.
2. Jeff Kehr, General Manager, The Myth Nightclub, 3090 Southlawn Avenue, Maplewood.
3. Ron Cockriel, 943 Century Avenue, Maplewood.
Mayor Longrie closed the public hearing.
Councilmember Nephew moved to approve the (Second Reading) of the Dynamic Display Sign
Ordinance and licensing ordinance amendment. This code amendment modifies and adds
language to the city's sign and licensing code for dynamic display signs including modifications to
the prohibited signs (Section 44-737), temporary signs (Section 44-891), and comprehensive sign
plan (Section 44-736); and adds language to the city's licensing ordinance (Section 14-26).
August 11, 2008 4
City Council Meeting Minutes
ORDINANCE NO. 889
AN ORDINANCE AMENDING THE SIGN AND
LICENSING CODE TO ALLOW DYNAMIC DISPLAY SIGNS
The Maplewood City Council approves the following changes to the Maplewood Code of Ordinances:
Section 1. This amendment revises Section 44-737 (prohibited signs):
Signs that are not specifically permitted in this article are hereby prohibited. The following signs
are specifically prohibited:
(3) Signs that have blinking, flashing or fluttering lights. SigRS that give ry ,hliG ser"i�e
0Rfnrmatnn, is ini i
h as time and teMper-Atre _re exempt
m
Section 2. This amendment revises Section 44-807 (temporary signs):
Temporary signs with blinking, flashing, or fluttering lights or with dynamic displays are
prohibited.
Section 3. This amendment revises Section 44-736 (comprehensive sign plan):
A comprehensive sign plan shall be provided for the following: (1) business premises which
occupy the entire frontage in one or more block fronts or for the whole of a shopping center or
similar development having five or more tenants in the project; (2) dynamic display wall signs: (3)
large campuses consisting of buildings and land of ten or more acres, and (4) shared signs.
Such a plan, which shall include the location, size, height, color, lighting and orientation of all
signs, shall be submitted for preliminary plan approval by the city_; provided that, if 66,,.h
G/lmrlreheRSiVe plan is pFecenter! 0 ,-eExceptions to the sign code s^he, ile regi latieRs of this
article may be permitted for On the sign areas, and densities, and dynamic display changeover
rates for the plan as a whole if the signs are in conformity with the intent of this article, aAd iur�vrr
eXGePti9Rs results in an improved relationship between the various parts of the plan, and
encourages and promotes the removal of nonconforming signs through the use of shared signs.
Comprehensive sign plans shall be reviewed by the community design review board. The
applicant, staff, and city council may appeal the community design review board's decision. An
appeal shall be presented to city staff within 15 days of the community design review board's
decision to be considered by the city council.
Section 4. Adopt an off-site and on-site dynamic display sign ordinance to be included in the city
sign code (Article III, Section 44-731 through Section 44-1024) as follows:
a. Findings. Studies show that there is a correlation between dynamic displays on signs and
the distraction of highway drivers. Distraction of drivers can lead to traffic accidents.
Drivers can be distracted not only by a changing message, but also by knowing that the
sign has a changing message. In such a case, drivers may watch a sign waiting for the
next change to occur. Drivers also are distracted by messages that do not tell the full
story in one look. People have a natural desire to see the end of the story and will
continue to look at the sign in order to wait for the end.
Additionally, drivers could be more distracted by special effects used to change the
message, such as fade-ins and fade-outs. Finally, drivers are generally more distracted by
messages that are too small to be clearly seen or that contain more than a simple
message.
August 11, 2008 5
City Council Meeting Minutes
Due to these public safety concerns, the city should only allow the use of these
technologies with certain restrictions. The restrictions are intended to minimize driver
distraction, to minimize their proliferation in residential districts where signs can adversely
impact residential character, and to protect the public health, safety, and welfare.
Local spacing requirements could interfere with the equal opportunity of sign owners to
use such technologies and are not included. Without those requirements, however, there
is the potential for numerous dynamic displays to exist along any roadway. If more than
one dynamic display can be seen from a given location on a road, the minimum display
time becomes critical. If the display time is too short, a driver could be subjected to a view
that appears to have constant movement. This impact on drivers would be compounded in
a traffic corridor with multiple signs. If dynamic displays become pervasive and there are
no meaningful limitations on each sign's ability to change frequently, drivers may be
subjected to an unsafe degree of distraction and sensory overload. Therefore, requiring a
limit on display times on dynamic signs is in the public interest.
A constant message is typically needed on an on-site sign so that the public can use it to
identify and find an intended destination. Changing messages detract from this way -
finding purpose and could adversely affect driving conduct through last -second lane
changes, stops, or turns, all of which could result in traffic accidents.
In conclusion, the City of Maplewood finds that dynamic displays should be allowed on off
and on-site signs but with significant controls to minimize their proliferation and their
potential threats to public health, safety, and welfare.
b. Dynamic display sign means any sign designed for outdoor use that is capable of
displaying a video signal, including, but not limited to, cathode-ray tubes (CRT), light -
emitting diode (LED) displays, plasma displays, liquid -crystal displays (LCD), or other
technologies used in commercially available televisions or computer monitors. Signs with
this technology which are placed by a public agency for the purpose of directing or
regulating pedestrian or vehicle movement are exempt from this ordinance.
C. Noncommercial dynamic display signs are allowed wherever commercial dynamic display
signs are permitted and are subject to the same standards and total maximum allowances
per site or building of each sign type specified in this chapter.
d. Standards for all dynamic display signs:
(1) The images and messages displayed on the sign must be complete in themselves,
without continuation in content to the next image or message or to any other sign;
(2) Every line of copy and graphics in a dynamic display must be at least seven inches
in height on a road with a speed limit of 25 to 34 miles per hour, nine inches on a
road with a speed limit of 35 to 44 miles per hour, 12 inches on a road with a
speed limit of 45 to 54 miles per hour, and 15 inches on a road with a speed limit
of 55 miles per hour or more.
(3) Dynamic display signs must be designed and equipped to freeze the device in one
position if a malfunction occurs. The displays must also be equipped with a means
to discontinue the display if it malfunctions, and the sign owner must stop the
dynamic display within one hour of being notified by the city that it is not meeting
the standards of this ordinance.
(4) Dynamic display signs must meet the brightness standards contained in
subdivision (h) below
August 11, 2008 6
City Council Meeting Minutes
e. On-site dynamic display signs are allowed subject to Article III (Sign Regulations) of the
city's zoning code, the above-mentioned standards for all dynamic display signs, and the
following additional conditions:
(1) Located in the Business Commercial (BC) or Heavy or Light Industrial (M-2 and M-
1) zoning districts only.
(2) The images and messages displayed on the on-site dynamic display sign must be
static and each display must be maintained for a minimum of two minutes; and the
transition from one static display to another must be instantaneous without any
special effects.
(3) Are allowed as part of a permanent freestanding sign, provided that the sign
comprises no more than 50 percent of the total square footage of said sign face.
(4) Must be located at least 200 feet from any property which there exists structures
used for residential purposes or from any park or open space land use district.
(5) Must be located at least 100 feet from any side property line.
(6) Display and advertisement of products, events, persons, institutions, activities,
businesses, services, or subjects which are located on the premises only or which
give public service information.
Off-site dynamic display signs are allowed subject to Sections 44-836 — 44-841
(Billboards) of the city's zoning code, the above-mentioned standards for all dynamic
display signs, and the following additional condition:
The images and messages displayed on the sign must be static and each display
must be maintained for a minimum of 15 seconds and the transition from one static
display to another must be instantaneous without any special effects.
g. Incentive. Off-site signs do not need to serve the same way -finding function as do on-site
signs and they are distracting and their removal serves the public health, safety, and
welfare. This clause is intended to provide an incentive option for the voluntary and
uncompensated removal of off-site signs in certain settings. This sign removal results in
an overall advancement of one or more of the goals set forth in this section that should
more than offset any additional burden caused by the incentive. These provisions are also
based on the recognition that the incentive creates an opportunity to consolidate outdoor
advertising services that would otherwise remain distributed throughout Maplewood.
Reduction of Sign Surfaces
(1) A person or sign operator may obtain a permit for a dynamic display sign on one
surface of an existing off-site sign if the following requirements are met:
(a) The applicant agrees in writing to reduce its off-site sign surfaces by one by
permanently removing, within 15 days after issuance of the permit, one
surface of an off-site sign in the city that is owned or leased by the
applicant, which sign surface must satisfy the criteria of part (2) of this
subsection. This removal must include the complete removal of the
structure and foundation supporting each removed sign surface. The
applicant must agree that the city may remove the sign surface if the
applicant does not do so, and the application must identify the sign surface
August 11, 2008 7
City Council Meeting Minutes
to be removed and be accompanied by a cash deposit or letter of credit
acceptable to the city attorney sufficient to pay the city's costs for that
removal. The applicant must also agree that it is removing the sign surface
voluntarily and that it has no right to compensation for the removed sign
surface under any law. Replacement of an existing sign surface of an off-
site sign with a dynamic display sign does not constitute a removal of a
sign surface.
(b) If the removed sign surface is one that a state permit is required by state
law, the applicant must surrender its permit to the state upon removal of
the sign surface. The sign that is the subject of the dynamic display sign
permit cannot begin to operate until the sign owner or operator provides
proof to the city that the state permit has been surrendered.
(2) If the applicant meets the permit requirements noted above, the city shall issue a
dynamic display sign permit for the designated off-site sign. This permit will allow
a dynamic display to occupy 100 percent of the potential copy and graphic area
and to change no more frequently than once every 15 seconds. The designated
sign must meet all other requirements of this ordinance.
h. Brightness Standards.
(1) The following brightness standards are required for all dynamic display signs:
(a) No sign shall be brighter than is necessary for clear and adequate visibility.
(b) No sign shall be of such intensity or brilliance as to impair the vision of a
motor vehicle driver with average eyesight or to otherwise interfere with the
driver's operation of a motor vehicle.
(c) No sign may be of such intensity or brilliance that it interferes with the
effectiveness of an official traffic sign, device or signal.
(2) The person owning or controlling the sign must adjust the sign to meet the
brightness standards in accordance with the city's instructions. The adjustment
must be made within one hour upon notice of non-compliance from the city.
(3) All dynamic display signs installed after August 20, 2008, must be equipped with a
mechanism that automatically adjusts the brightness in response to ambient
conditions. These signs must also be equipped with a means to immediately turn
off the display or lighting if the sign malfunctions, and the sign owner or operator
must turn off the sign or lighting within one hour after being notified by the city that
it is not meeting the standards of this section.
(4) In addition to the brightness standards required above, dynamic display signs shall
meet the city's outdoor lighting requirements (section 44-20(1)).
Public Safety. If city staff determines that a dynamic display sign is not being operated
pursuant to this ordinance due to its location or display capabilities, city staff can require
that the sign be moved, removed, or modified after notice to the property owner.
Section 5. Adopt an off-site and on-site dynamic display sign licensing ordinance to be included
in the city licensing code (Article II, Section 14-26 through Section 14-1437) as follows:
August 11, 2008 8
City Council Meeting Minutes
a. Purpose and Findings. The purpose and intent of this chapter is to establish rules,
regulations and standards for dynamic display signs within the City of Maplewood.
b. Definitions. The following words and terms, when used in this chapter, shall have the
following meanings unless the context clearly indicates otherwise:
Dynamic display sign means any sign designed for outdoor use that is capable of
displaying a video signal, including, but not limited to, cathode-ray tubes (CRT), light -
emitting diode (LED) displays, plasma displays, liquid -crystal displays (LCD), or other
technologies used in commercially available televisions or computer monitors. Signs with
this technology which are placed by a public agency for the purpose of directing or
regulating pedestrian or vehicle movement used are exempt from this ordinance.
*State law references — The 1965 Highway Beautification Act and corresponding state
laws are in place to provide for effective control of outdoor advertisement. Roadside
billboards fall under this category. It is the intent that the cities regulations adhere to these
overriding federal and state statutes.
C. License Required. No person shall operate an off-site or on-site dynamic display sign in
the city without first obtaining a license. Licenses are required to be reviewed annually.
d. License Fee and Term of License. Licenses issued pursuant to this chapter are
transferable from one owner to another. The amount to be paid for a license required by
this chapter shall be equal to the cost of the dynamic display sign permit, established and
fixed by the city council, by resolution, from time to time.
e. Application for Issuance of License. Applications for a license required by this chapter
shall be made to the city on a form supplied by the city, a minimum of thirty (30) days prior
to the desired start date. The applicant shall state the full name and address of the
applicant; the full business name and address of the applicant; contact phone numbers;
the location/legal description of the premises where said dynamic billboard will be located;
a letter describing operation; a site plan showing location of the dynamic display sign, and
such other information as required by the applicant form.
Application Process. The completed application shall be presented to the city clerk for
review by the community development department. If the community development
department finds the license meets the dynamic display sign code requirements, the city
clerk shall issue a license.
g. Inspection. The premises of any licensee under this chapter shall be open to inspection at
any time during business hours by any authorized officer of the city.
h. Duration; renewal. Any license issued under this chapter shall be for one year only, and
the application for renewal must be presented to the city clerk each year. The city shall
have the right not to reissue a license for a dynamic display sign if the sign is found to be
noncompliant with the city's dynamic display sign code. The licensee has the right to
appeal such license denial to the city council.
Section 6. This ordinance shall take effect after the city publishes it in the official newspaper.
The City Council approved the first reading of this ordinance on July 28, 2008.
The City Council approved the second reading of this ordinance on August 11, 2008.
August 11, 2008 9
City Council Meeting Minutes
Attest:
City Clerk
Seconded by Mayor Longrie.
The motion passed
Mayor
Ayes — Mayor Longrie,
Councilmembers Hjelle,
& Nephew
Nay — Councilmember Rossbach
Abstain — Councilmember Juenemann
Councilmember Nephew directed staff as the next step in this process, to bring possible language
back to the council for the creation of special districts.
Mr. Ahl said staff would respond to that direction.
Councilmember Nephew moved to approve the Resolution setting a licensing fee for Dynamic
Displays at a rate to match the sign permit fees, currently $160 for freestanding signs and $105
for wall signs.
Dynamic Display Sign Licensing Fee Resolution 08-08-117
WHEREAS, the City of Maplewood has adopted a dynamic display sign ordinance to
regulate the number, location, and use of dynamic display signs within the city.
WHEREAS, a dynamic display sign means any sign designed for outdoor use that is
capable of displaying a video signal, including, but not limited to, cathode-ray tubes (CRT), light -
emitting diode (LED) displays, plasma displays, liquid -crystal displays (LCD), or other
technologies used in commercially available televisions or computer monitors. Signs with this
technology which are placed by a public agency for the purpose of directing or regulating
pedestrian or vehicle movement are exempt from this definition.
WHERAS, the city has determined that there will be costs associated with additional
monitoring and enforcement of dynamic display signs and as such have included a licensing
requirement and fee for persons who operate an off-site or on-site dynamic display sign in the city
in order to recoup those costs. Licenses are required to be reviewed annually.
WHEREAS, Section 14-27 of the city's licensing ordinance states that license fees
associated with a license shall be imposed, set, established and fixed by the city council from
time to time.
NOW, THEREFORE, BE IT RESOLVED that the Maplewood City Council sets the yearly
dynamic display licensing fee to match the yearly sign permit fee for freestanding and wall signs,
currently set at $160 for freestanding signs (including billboards) and $105 for wall signs (2008
rates).
August 11, 2008 10
City Council Meeting Minutes
The Maplewood City Council adopted this resolution on August 11, 2008.
Seconded by Councilmember Hjelle. Ayes- All
The motion passed.
There was no further action recommended regarding the recommendation for the community
center sign and all city hall campus signs and the CDRB review for an approved comprehensive
sign plan at this time per the discussion amongst the council, city attorney, and staff.
The Council took a break at 8:50 p.m.
The Council reconvened at 9:00 p.m.
K. UNFINISHED BUSINESS
Carver Crossing Development — Consider Approving Development Contract with
CoPar for Settlement of Litigation and Development Plan.
a. John M. Baker. Attornev. Greene Esoel. PLLP. 200 South Sixth Street. Suite 1200
Minneapolis, addressed the council, gave the report and answered questions. Mr.
Baker provided the council with updated information for the record which occurred
after the council packet was completed.
b. Chuck Ahl, Acting City Manager, answered questions of the council.
C. Alan Kantrud, City Attorney, addressed and answered questions of the council.
d. Howard Roston, Attorney, Malkerson, Gilliland, Martin LLP, 200 Sixth Street
South, Suite 1900, Minneapolis, addressed and answered questions of the council.
The following are comments or questions that the Mayor requested be added for the
record to the August 25, 2008, city council meeting minutes.
Mayor Longrie asked if a payment of a special assessment is missed in a particular year
and it's an assessment against the property but the payment has been missed does the
city have the right to foreclose against that the parcel or parcels? Mayor Longrie said she
was concerned what the remedy for the city is if this doesn't work out.
Mr. Baker said Section 429 protects city's under those circumstances.
Councilmember Nephew said to clarify, the assessment gets handed to the individual
homeowners that buy the lots and they pay the assessment over the 15 years or so that
they own the property.
Acting City Manger Ahl said the city would assess each individual lot and then at closing
time most closing companies will not provide funds if the assessments are paid by the
seller so in this case nobody is going to buy the property until the assessments are paid
off by the developer. Should the property not get sold then the city has the first claim
against the property. The city is in front of any mortgage company for the land and can go
in and claim the property if necessary and resell it for its value and the expenses included
in it.
Mayor Longrie asked if the city has the flexibility to reasonably ask for the projected first
year's lien amount assessment if the city can project what the assessment would be for
the first year in escrow?
Mr. Baker said they were trying to use the security provision to cover the gap and to
protect the city for the gap of what wouldn't be covered prior to the time it had the ability
August 11, 2008 11
City Council Meeting Minutes
to assess. Because it has the ability to assess, they didn't try to get additional money to
be paid above and beyond the amount of its preliminary engineering costs. They believed
that getting compensation for the amount of cost the city was going to incur rather than
getting over compensation under these circumstances provided a security for the city.
Mayor Longrie asked if they are going to have a lien that is going to be assessed that they
are going to have to pay, why would it be an over assessment?
Mr. Baker said the $30, 000 escrow is the cash escrow for the preliminary engineering
costs that the city is incurring in advance of the ability to assess those things. What this
does is it provides the ability for the city to draw upon that rather than upon its own
resources as those costs were incurred prior to that point. That is the function of this
security provision.
Mr. AN said before the city holds its public hearings the city doesn't have the right to
assess. In order to have that preliminary work done the city is having them post the
$30,000 so the city has no risk. Once the city has gone to an assessment hearing that
amount is levied and therefore the city is guaranteed that money. It is guaranteed by land
rather than being guaranteed by the finances of the developer. It is guaranteed to the city
by the value of the land. The city has their money. The city can go and recover all of those
expenses so in no case is the city out. It is a double security for them and one the
developer wasn't willing to agree to because the city has their security, why would the city
need security on the security.
Mayor Longrie said Mr. AN answered her question, he said they didn't agree?
Mr. AN said correct.
Mayor Longrie said if the city finds them in a position where they need to foreclose to get
their money from the city improvements that were constructed, does Section 429 provide
for the legal cost and the other cost of foreclosure as part of that process.
City Attorney Kantrud said he would say yes. If the city has to go after the city's cost it is a
taxpayer cost to secure the security and the city would apply that to the property and
either do something with the property or sell it at a public auction for a minimum.
Mr. AN said because it is listed on the property tax statement, Ramsey County does that
for the city. Every year there is a list of tax forfeited properties and on the list are the value
of the land to be sold, payment of the special assessments and back taxes to all the
jurisdictions and assessments as part of this. Included in that are all of the administrative
expenses as well.
Mayor Longrie said this is a developer agreement where the city has an agreement with
them, which is different than tax forfeit land. The city has a lien against the land, the city
can foreclose, and the city isn't looking to Ramsey County to foreclose because it's not a
tax forfeit situation. It's that the assessment liens haven't been paid so in order to get paid
the city has the option that the city can foreclose on the property.
City Attorney Kantrud said on page 14, regarding remedies, the city hasn't waived any
legal remedies and if the city wanted to take action on the contract the city could sue and
would ask for the fees to remedy the situation.
Mr. AN said the city's intent is to assess the land. If CoPar has sold land to someone and
they have not paid the assessments the city is going against land that may or may not be
owned by CoPar. Whoever pays their property tax statement they pay that to Ramsey
August 11, 2008 12
City Council Meeting Minutes
County and they pay it back to the City of Maplewood. Included in that are the annual
installments. If they default on that the property and it goes tax forfeit anyone taking or
buying tax forfeit property has to pay all the fees so it does go through Ramsey County
and the city gets all their expenses for that collection. The assessments are part of the
property tax statement. All of those expenses have to be cleared before the property is
released once it goes tax forfeit. Tax Forfeit and non payment of assessment are on the
similar statement.
Mayor Longrie said she thought Mr. AN said when there is a development and when the
developer sells that parcel to somebody that those assessments have to be paid up front
in order to be able to sell that parcel?
Mr. AN said all lending agencies and closing companies have that as a requirement. For
someone to go and buy a parcel from CoPar and for the closing company to give them a
mortgage they would require the seller to pay the assessments. That is not a requirement
of the city. If they have cash on the site and that is the buyer and sellers agreement they
might pass the assessments through at which point someone else may be liable for the
property taxes and special assessments. However, that is very very rare that someone
would pay cash and not have a mortgage.
Mayor Longrie asked if anyone in the audience wanted to speak regarding this item.
Ron Cockriel, 943 Century Avenue, Maplewood, addressed the council. Mr.
Cockriel commented on the CoPar property and asked if the developer could build
a show home or two on the south side of Fish Creek. Mr. Cockriel also asked
about the potential of a referendum and if the city would be agreeing on a price for
the property south of Fish Creek. Mr. Cockriel also asked about trail ways and their
location in the area.
2. George Gonzales, 2359 Heights Avenue, Maplewood, addressed the council. His
concern as a resident was regarding a statement in the packet which was provided
by Mr. Baker on page 8, section 2.5, a., ii. The underwriting fee wording needs to
be clarified.
3. Carolyn Peterson, 1801 Gervais Avenue, Maplewood, addressed the council. Ms.
Peterson discussed her concerns regarding the legal questions in the development
agreement.
Mayor Longrie said she personally does not think the council should be approving something
without seeing the final draft of the document. She said this should be tabled until the next
council meeting. This is a very important subject for our community. It's worth the time and effort
to discuss something important for our community. There are times when you need to draw the
line and say this is what you want for your community and this is what you want your community
to be. This community is ours and that the quality of life is very important. The council has to
stand for what they want. Sometimes you make decisions based upon a quality of life and a
quality of what the council is looking at. She doesn't want people to lose site of this particular site.
This is Maplewood's only Mississippi Critical Area. She thinks there is an impact with 174 units
and felt there is no difference from 191 units. Everyone has their own vision and their own idea of
what the quality of life is and what it is that the city should preserve. She thinks it's important for
Maplewood to have done more for the Mississippi Critical Area because you can't reconstruct a
precious place like this.
These are the following changes to be made to the agreement: (A new Developers Agreement
was added to the minutes after the August 11, 2008, City Council Meeting from Greene
Espel LLC.)
August 11, 2008 13
City Council Meeting Minutes
1. Page 7, Section 2.2, a., 29th line, after the word City, add (some or).
2. Page 8, first paragraph, 3 d line, at the end of the sentence, change the period to a comma
and add Except that the city may extend this period by 3 months upon 90 days notice to
the developer.
3. Section 2.5, the header, the word Public should be changed to City.
4. Same page, in Section 2.5, a., ii., seven lines down, change Public Improvements to City.
5. In the previous sentence rather than saying the city shall not assess for its underwriting
fees it should say The City may assess for its reasonable underwriting fees.
6. Also change Exhibit H. which will say July 1, 2009, instead of just 2009.
7. They also need to expand the margins of the document.
Councilmember Rossbach moved to recommend approval of the Development Contract with
CoPar for Settlement of Litigation and Development Plan with noted changes as discussed at the
council meeting between the council and the attorney's, contingent upon the city council seeing a
final copy of the contract that reflects the changes discussed during the city council meeting.
CITY OF MAPLEWOOD
RAMSEY COUNTY, MINNESOTA
DEVELOPER'S AGREEMENT
FOR CARVER CROSSING DEVELOPMENT
THIS AGREEMENT, made and entered into this 11th day of August, 2008, by and between the
City of Maplewood, a municipal corporation and political subdivision organized under the laws of the
State of Minnesota (hereinafter referred to as "City"), and CoPar Development, LLC, a Minnesota limited
liability company (hereinafter referred to as "Developer').
WITNESS:
WHEREAS, the Developer is the fee owner of the Real Property described on Exhibit A hereto
("Property");
WHEREAS, the Developer has sought approval from the City and the City has approved the
development of the Property in accordance with the terms of this Agreement, Resolutions 08-05-068, 08-
05-069 and 08-05-070 (collectively, "Resolutions," attached hereto as Exhibit 1) and the Development
Plans, each of which are incorporated herein by reference;
WHEREAS, the City Council of the City (the "Council") has, by the Resolutions passed on May
12, 2008, (1) approved a Conditional Use Permit for a Planned Unit Development of the Property (2)
Directed the Vacation of Existing Easements, (3) Approved a Preliminary Plat and (4) approved
settlement concepts regarding the resolution of certain litigation (Ramsey County Court File No. 62-05-
06-010746) by and between the Developer and the City;
WHEREAS, the development of the Property by the Developer consists of a project ("Project")
more particularly described in the Documents and as further described in this Agreement. Generally, the
Project consists of 174 unit single family residential development with conservation easements, 300 foot
protected corridor for Fish Creek and approximately 29.35 acres of open space;
WHEREAS, the City acknowledges that the Developer may develop the Property in phases as
described herein;
August 11, 2008 14
City Council Meeting Minutes
WHEREAS, the City acted as the Responsible Governmental Unit ("RGU") in connection with a
discretionary Environmental Assessment Worksheet and resolution dated July 10, 2006 the City Council
issued a negative declaration on the need for an Environmental Impact Statement;
WHEREAS, the Developer agrees that development of a certain portion of the Property (depicted
on Exhibit A) will be delayed under the terms as set forth herein;
WHEREAS, it is the policy of the City to enter into development contracts as contemplated in
Minnesota Statutes Section 462.358, Subd. 2(a); and
WHEREAS, the Findings attached hereto as Exhibit B are incorporated by reference.
WHEREAS, the parties hereto desire to set forth their respective rights and obligations of the
parties to this Agreement with respect to development of the Subdivision.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and of the mutual promises and conditions
contained herein, it is agreed by the parties hereto as follows:
I. DEFINITIONS
The following terms, unless elsewhere defined specifically in the Development Contract, shall have
the meanings as set forth below.
1.1 City. "City" means the City of Maplewood, a Minnesota municipal corporation.
1.2 Developer. "Developer' means CoPar Development, LLC.
1.3 Owner. "Owner' means CoPar Development, LLC.
1.4 Plat. "Plat' means the plat of Carver Crossing Development comprising the real property
located in the City of Maplewood, County of Ramsey, State of Minnesota, and legally described on the
attached Exhibit A.
1.5 Development Plans. "Development Plans" means all those plans, drawings, specifications
and surveys identified and checked on the attached Exhibit C, and hereby incorporated by reference and
made a part of this Development Contract and described below:
a. Preliminary Plat.
b. Site Plan.
C. Concept Plan with Referendum Areas.
d. Grading, Erosion Prevention, and Sediment Control Plan.
e. Utility Plan.
f. Storm Water Management Plan.
g. Wetland Mitigation/Rain Garden Plan.
h. Tree Preservation Plan.
i. Open Space Plan.
j. Master Landscape Plan.
k. Landscape Plan - North One -Half.
I. Landscape Plan — South One -Half.
M. Landscape Plan Planting Schedule and Details.
1.6 Development Contract or Agreement. "Development Contract" or "Agreement' means this
agreement by and between the City and the Developer.
August 11, 2008 15
City Council Meeting Minutes
1.7 Council. "Council' means the Council of the City of Maplewood.
1.8 City Engineer. "City Engineer" means the City Engineer of the City of Maplewood, as
authorized by the Council.
1.9 County. "County" means Ramsey County, Minnesota.
1.10 Other Regulatory Agencies. "Other Regulatory Agencies" means and includes, jointly and
severally, the following:
(a) Minnesota Department of Transportation;
(b) Ramsey County;
(c) Ramsey -Washington Watershed District;
(d) State of Minnesota;
(e) Minnesota Department of Natural Resources;
(f) Army Corps of Engineers;
(g) Any other regulatory or governmental agency or entity affected by, or having
jurisdiction over the Developer Improvements.
1.11 Utility Companies. "Utility Companies" means and includes, jointly and severally, the
following:
(a) utility companies, including electric, gas, cable television and
telephone; and
(b) pipeline companies.
1.12 Property. "Property" means the property described on Exhibit A to this Development
Contract.
1.13 Developer Improvements. "Developer Improvements" means and includes, jointly and
severally, all the improvements identified in Article II and on the attached Exhibit D.
1.14 City Improvements. "City Improvements" means and includes, jointly and severally, all the
improvements identified in Article II of this Agreement and on the attached Exhibit E.
1.15 Improvements. "Improvements" means both the City Improvements and the Developer
Improvements.
1.16 Developer Default. "Developer Default" means and includes, jointly and severally, any of the
following or any combination thereof:
a. failure by the Developer to construct the Developer Improvements according
to the Development Plans and the City standards and specifications as set
forth herein;
b. failure by the Developer to observe or perform any covenant, condition,
obligation or agreement on its part to be observed or performed under this
Development Contract;
C. breach of the Developer Warranties.
1.17 Force Majeure. "Force Majeure" means acts of God, including, but not limited to floods, ice
storms, blizzards, tornadoes, landslides, lightning and earthquakes (but not including reasonably anticipated
August 11, 2008 16
City Council Meeting Minutes
weather conditions for the geographic area), riots, insurrections, vandalism, trespass, disease, war or civil
disorder affecting the performance of work, blockades, power or other utility failures, and fires or explosions.
1.18 Developer Warranties. "Developer Warranties" means that the Developer hereby warrants
and represents the following:
follows:
a. Authority. Developer has the right, power, legal capacity and authority to enter into
and perform its obligations under this Development Contract, and no approvals or
consents of any persons are necessary in connection with the authority of Developer
to enter into and perform its obligations under this Development Contract.
b. No Default. Developer is not in default under any lease, contract or agreement to
which it is a party or by which it is bound which would affect performance under this
Development Contract. Developer is not a party to or bound by any mortgage, lien,
lease, agreement, instrument, order, judgment or decree which would prohibit the
execution or performance of this Development Contract by Developer or prohibit any
of the transactions provided for in this Development Contract.
C. Present Compliance with Laws. Developer has complied with and is not in violation
of applicable federal, state or local statutes, laws, and regulations including, without
limitation, permits and licenses and any applicable zoning, environmental or other
law, ordinance or regulation affecting the Plat and the Development Plans and the
Developer Improvements; and Developer is not aware of any pending or threatened
claim of any such violation.
d. Continuing Compliance with Laws. Developer will comply with all applicable federal,
state and local statutes, laws and regulations including, without limitation, permits and
licenses and any applicable zoning, environmental or other law, ordinance or
regulation affecting the Plat and the Development Plans and the Developer
Improvements.
e. Warranty on Proper Work and Materials. The Developer warrants all work required
to be performed by it under this Development Contract against defective material and
faulty workmanship for a period of one (1) year after its completion and acceptance
by the City in the form set forth on Exhibit F. During the warranty period, the
Developer shall be solely responsible for all costs of performing repair work required
by the City within thirty (30) days of notification. All trees, grass, and sod shall be
warranted to be alive, of good quality, and disease free for one (1) year after planting.
Any replacements shall be similarly warranted for one (1) year from the time of
planting. In addition, the warranty period for drainage and erosion control
improvements shall be for one (1) year after completion and acceptance by the City;
the warranty for the drainage and erosion control improvements shall also include the
obligation of the Developer to repair and correct any damage to or deficiency with
respect to such improvements. The warranty for the asphalt roadway extends for
one (1) year after the installation of the final asphalt lift. All other warranty periods
begin at the date when each improvement is accepted by the City.
Obtaining Permits. The Developer shall obtain and pay for all required permits,
licenses and approvals, and shall meet all requirements of all applicable, local, state
and federal laws and regulations which must be obtained or met before the
Developer Improvements may be lawfully constructed.
1.19 City Warranties. "City Warranties" means that the City hereby warrants and represents as
August 11, 2008 17
City Council Meeting Minutes
a. Organization. City is a municipal corporation duly incorporated and validly existing in
good standing the laws of the State of Minnesota.
b. Authority. City has the right, power, legal capacity and authority to enter into and
perform its obligations under this Development Contract.
C. Approval. The Development Plans have been approved and all actions required by
the City have been satisfied to permit the development in accordance with the
Development Plan.
1.20 Formal Notice or Notice. "Formal Notice" or "Notice" means notices given by one party to the
other if in writing and if and when delivered or tendered either in person or by depositing it in the United
States mail in a sealed envelope, by certified mail, return receipt requested, with postage and postal charges
prepaid, addressed as follows:
If to City: City of Maplewood
Attn: City Manager
1830 County Road B East
Maplewood, Minnesota 55109
If to Developer: CoPar Development, LLC
Attn: Tom Hansen
8677 Eagle Pt. Blvd.
Lake Elmo, Minnesota 55402
or to such other address as the party addressed shall have previously designated by notice given in
accordance with this Section. Notices shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, or on the third day after mailing if mailed as
provided above, provided, that a notice not given as above shall, if it is in writing, be deemed given if and
when actually received by a party.
1.22 City Code or Ordinance. "City Code" or "Ordinance" means the City's Code of Ordinances,
and any applicable regulations and/or policies and specifications implementing the same, in effect as of
the date hereof.
1.23 Referendum Property. "Referendum Property" means the property as described on
Exhibit G identified as Lots 2 through 17, Block 10 and that portion of Outlot E as described on Exhibit G.
1.24 Referendum Lots. "Referendum Lots" means Lots 2 through 17, Block 10 of Exhibit G.
1.25 Development. "Development" means the Improvements to the Property in accordance
with the terms of this Agreement.
1.26 Project. The term "Project" is defined as set forth in paragraph 2.1 of this Agreement.
II. DESCRIPTION OF THE PROJECT; DEVELOPER
IMPROVEMENTS; CITY IMPROVEMENTS
2.1 The Project includes both Developer Improvements and City Improvements in accordance
with the Resolutions and the Development Plans ("Project"), and the Documents.
August 11, 2008 18
City Council Meeting Minutes
2.2 City Staff is directed to take all reasonable actions necessary and convenient to facilitate
the development of the Improvements on the Property and the Project in accordance with the
Development Plans and this Agreement. Developer shall construct Developer Improvements in
accordance with the Development Plans and the Ordinances of the City.
Notwithstanding anything to the contrary the Developer Improvements may be installed in phases
in accordance with the anticipated phasing scheduled attached hereon as Exhibit H. The parties
recognize that the phasing schedule on Exhibit H is an estimate only. With the exception of compliance
with CUP Resolution condition No. 2 regarding the start of proposed construction and deferral of
development of the area potentially subject to the 2008 referendum, the timing of the development may
vary depending on market conditions and other circumstances not within the Developer's control.
Regarding CUP Resolution condition No. 2, a substantial start on the proposed construction north of Fish
Creek shall constitute satisfaction of that condition for purposes of the Development.
a. Developer's Agreement to Withhold Development on the Referendum Property.
Developer agrees that the Referendum Property shall not be developed and no
Developer or City Installed Improvements shall be constructed on the Referendum
Property prior to June 30, 2009 ("Referendum Date"). Rather, the City may seek
funding sources from any source deemed appropriate by the City for the purchase
of all or a portion of the Referendum Property by the Referendum Date. The
Purchase Price for the Referendum Property shall be $150,000 per Referendum
Lot purchased by the City and, if the City purchases the entire Referendum
Property, the purchase price shall be $2,400,000 ("Referendum Purchase Price").
In the event that the City notifies the Developer not later than thirty (30) days
before the Referendum Date of its intent to acquire the Referendum Property for
the Referendum Purchase Price, the Developer shall no later than June 30, 2009
("Closing Date") convey the Referendum Property to the City for the Referendum
Purchase Price and the City shall complete the purchase of the Referendum
Property by the Closing Date. Both the City and the Developer shall execute all
documents and take all actions reasonably necessary to convey the Referendum
Property to the City in the event that the City timely notifies the Developer of the
City's intent to acquire the Referendum Property. While the City can elect which
Referendum Lots to purchase, the City may not acquire less than full Referendum
Lots and all Referendum Lots purchased by the City shall be contiguous. In the
event that the City does not timely notify the Developer of its intent to purchase the
Referendum Property by the Referendum Date, the Developer may thereafter, at
its discretion, develop the Referendum Property in accordance with this
Agreement. In the event that the City timely exercises its rights to purchase the
Referendum Property hereunder, the City may also require the developer to
convey to the City some or all green space identified as the Open Space Plan
(Exhibit C, Sheet C-10) ("Green Space") to the City for the purchase price of
$1.00. In the event that the City acquires the Referendum Property and the Green
Space, the City shall not thereafter develop or permit development of the
Referendum Property or the Green Space.
2.3 City Installed Improvements. In accordance with the Ordinances of the City, the City
Improvements shall be constructed and installed by the City and thereafter assessed to the benefiting
property owners as set forth in this Agreement. The City Improvements shall be completed in
accordance with the phasing schedule Exhibit H and no later than six (6) months after Developer notifies
the City in writing of the need for the City Improvements for any phase of the Development. Time is of
the essence for the completion of those City Improvements for those phases for which the Developer
provides six months' prior notice to the City of the Developer's commencement of development of that
phase, except that the City may extend this period by up to three additional months because of weather,
by giving 90 days notice to the Developer. The Developer shall have joint approval over the final design
for all City Installed Improvements, provided that both the Developer and the City agree that the final
August 11, 2008 19
City Council Meeting Minutes
design for the City Installed Improvements shall be consistent with Exhibit E. The City shall be
responsible for obtaining any required permits for all City Installed Improvements.
2.4 Construction Meetings. At least three (3) business days prior to commencing construction
of the Developer Improvements or the City Improvements (and any Phase thereof), the Developer and
the City shall hold a pre -construction conference.
2.5 Repayment of Costs of City Improvements.
a. Special Assessments.
The initial costs of the City Improvements shall be paid by the City. The
costs of the City Improvements shall be repaid through the levy of special
assessments against the Property. The special assessments shall be
payable by installments, and the installments shall be spread over fifteen
(15) years from the date that the assessment is levied in accordance with
Minnesota Statutes Chapter 429. The City will specially assess for the City
Improvements at the exact cost of the bond -sale and at the same rate
issued to the City. The special assessments for each category of Public
Improvements shall be levied as set forth in paragraph 2.8 below and in
accordance with Minnesota Statutes, Chapter 429.
The costs of the City Improvements that may be specially assessed include
only those cost set forth on Exhibit E. The Developer shall reimburse any
reasonable costs incurred by the City for engineering, legal and
administrative services associated with the project, which shall not include
any costs arising from the Litigation or its settlement. The City may assess
for its reasonable underwriting fees. The final costs of such Public
Improvements will be determined in accordance with Minnesota Statute
Chapter 429. The City agrees that the assessments will be spread against
the lots in the Subdivision and subsequent Phases in a manner reasonably
acceptable to the City and Developer, provided, however, that the parties
acknowledge and agree, to the extent permitted by law, that (a) to the
extent any of the City Improvements benefit subsequent Phases, a portion
of the costs thereof that is directly correlated to the benefit derived from the
improvements may, at the request of the Developer, be assessed against
such subsequent Phases, (b) at the request of the Developer, certain lots
to be developed by the Developer shall bear a greater portion of the
assessments charged to the lots in the Subdivision, and (c) the special
assessments shall be paid over a fifteen (15) year period.
iii. Developer and its successors waive any and all procedural and substantive
objections to the special assessments, including, but not limited to, any
claim that any assessment exceeds the benefit to the property served.
iv. Developer and its successors waive any appeals and rights otherwise
available pursuant to Minnesota Statutes Sections 429.036 and 429.081.
2.6 [RESERVED]
2.7 Force Majeure. The deadlines set forth in Exhibit J and the dates for Developer's and
City's performance of their other obligations hereunder may be extended due to Force Majeure. In the
event of Force Majeure, the deadlines and dates for performance of the Developer's and City's
obligations hereunder shall be extended for the period of the delay.
August 11, 2008 20
City Council Meeting Minutes
2.8 Security. Developer agrees to provide financial security as set forth in either Option A or
Option B below (at Developer's option).
Option A. Prior to preliminary engineering by the City for each phase of the Development,
the Developer shall provide to the City a cash escrow equivalent to the City's reasonable estimate
of its preliminary engineering fees, determined for the first phase of the Project to be $30,000 and
shall waive all objections to the City's immediate assessment against the Property of the full
amount of the City's estimated expenses for the City's Improvements for each phase. For all
phases of the Development after the first phase, the Developer shall provide to the City a cash
escrow equivalent to the City's reasonable estimate of its preliminary engineering fees for that
particular phase not to exceed the actual and reasonable costs thereof and shall waive all
objections to the City's immediate assessment against the Property of the full amount of the City's
estimated expense for the City for each phase of the Development.
Option B. In lieu of Option A, the Developer shall provide to the City a cash escrow in the
form of a letter of credit for 125 percent (125%) of the amount of the City's Improvements as
reasonably estimated by the City for each phase of the Development. Said letter of credit shall be
effective until the City conducts an assessment hearing and shall be released when the special
assessments have been levied by the City against all of the lots in the Property for any phase of
the Development. Developer shall provide to the City the letter of credit prior to the City's letting
of the construction contract for the City Improvements for each phase of the Development. The
City agrees that if the Developer sells lots prior to the levy of the assessments herein for any
phase of the Development, the City will reduce the amount of the Letter of Credit delivered by the
Developer and accept replacement security from the purchaser of said lots in a form of cash
escrow or replacement letter of credit.
III. PLAN PREPARATION, SUBMISSIONS AND APPROVALS
3.1 Developer Improvement Plan Approvals. The Developer or its consultant shall be
responsible for preparing the plans and specifications for the Developer Improvements including bidding
documentation, following a pre -design conference with the Developer and Developer's engineer. The
City Engineer's approval shall not be unreasonably withheld and shall be granted if the plans and
specifications are in conformance with the Development Plans applicable thereto, the terms of this
Agreement and the requirements of governmental authorities other than the City that will issue permits or
licenses for such improvements. Developer and the City Engineer shall use their best efforts to resolve
any differences they may have with respect to the plans and specifications. If the City Engineer does not
specifically approve, comment upon or reject the plans and specifications within ten (10) Business Days
of submittal of the same to the City Engineer, then the plans and specifications shall be deemed
approved.
3.2 City Improvement Plan Approvals. The City or its consultants shall prepare the plans and
specifications for the City Improvements in a timely fashion to ensure that the City Improvements for
each phase are constructed in a timely fashion as set forth in paragraph 2.3 of this Agreement. The City
shall consult with the Developer in connection with the plans and specifications for the City
Improvements, but the City's design thereof shall be final.
IV. WARRANTIES
The Developer hereby makes and states the Developer Warranties. The City hereby makes and
states the City's Warranties.
4.1 Installation; Certification. Upon completion of construction of any category of Developer
Improvements, and correction of any defective work as provided herein, Developer shall cause its
engineer to inspect the same and to certify to the City and Developer that the same have been finally
August 11, 2008 21
City Council Meeting Minutes
completed in substantial accordance with the Development Plans therefore (the "Certificate of
Completion").
4.2 Acceptance of Developer Improvements. Upon receipt of the Certificate of Completion of
any category of Developer Improvements, the City's Authorized Representative will, within ten (10)
Business Days of receipt of the Certificate of Completion, inspect the Developer Improvements to ensure
that the Developer Improvements were constructed substantially in accordance with the approved plans
and specifications for the Developer Improvements and shall either (i) certify to the City and the
Developer that the same have been substantially completed in accordance with the approved plans and
specifications therefore, or (ii) notify the City and the Developer in writing and in reasonable detail as to
those components of construction that have been substantially completed in accordance with the
approved plans and specifications therefore; in which event, the Developer shall proceed with
reasonable diligence to complete or correct the incomplete or defective components of construction, after
which the Developer shall request re -inspection and certification of completion in accordance with the
provisions of this Section. If the City's Authorized Representative does not, within such ten (10)
Business Day inspection period, either validate the accuracy of the Certificate of Completion or provide
notice of defective or incomplete components of construction as contemplated above, the Developer
Improvements shall be deemed to be completed in substantial accordance with the approved plans and
specifications therefore. Developer shall submit the Developer Improvements for acceptance to the City
for action, and the City shall, by formal motion, accept the Developer Improvements so constructed and
agree to assume all liability for maintenance of Developer Improvements upon the expiration of the
Developer Warranties.
V. FEES AND CHARGES
Provided the City complies with the terms of this Agreement, Developer shall pay:
a. Recording Fees. All fees and charges in connection with recording this Agreement
and the Plat with the County.
b. Park Dedication. Developer shall pay a park dedication fee of $574,200
($3,300.00 per unit). In recognition of Developer's agreement to withhold
development of the Referendum Property as set forth herein, the City agrees not
to increase its park dedication fee in connection with the development of the
Project prior to June 30, 2009. In the event that the City acquires the Referendum
Property or no fewer than eight (8) of the Referendum Lots in accordance with
Article II of this Agreement, the Park Dedication Fee shall be paid upon the closing
of the City's purchase of the Referendum Property. The Park Dedication Fee shall
be reduced by $3,300.00 for each Unit of the Referendum Property purchased by
the City.
In the event that the City does not exercise its rights to purchase the Referendum
Property (a) the Developer may, at its discretion (a) pay the entire Park Dedication
fee or (b) pay or cause to be paid the Park Dedication Fee on a per unit basis of
$3,300.00 at the time that a building permit is sought and received for each
individual Unit in the Project. The Developer may, at its discretion, assign the Park
Dedication Fee (at the greater of $3,300.00 per unit or the then current park
dedication fee) to any purchaser or builder of an individual lot.
C. Other Fees. The Developer shall pay at the time of issuance of a building permit
for each individual lot all other customary, reasonable and lawful fees required by
Other Regulatory Agencies. The City shall not assess any fees to the Project
other than set forth herein. This limitation shall not apply to City improvements not
included in or contemplated in the Development Plans.
August 11, 2008 22
City Council Meeting Minutes
VI. OTHER PERMITS; APPROVALS; CERTIFICATES OF OCCUPANCY
6.1 Other Regulatory Agencies. The Developer shall apply for all permits, approvals and
licenses required from any Other Regulatory Agency as may be necessary for Developer's construction
of the Developer Improvements as herein contemplated, and Developer shall construct the Developer
Improvements in accordance with the requirements of all such permits, approvals and licenses and the
legal requirements thereof.
6.2 Initial Permits and Model Permits. Any provision of this Agreement that requires the
Developer Improvements to be completed prior to issuance of building permits for residential units within
the Project shall not apply to building permits for single-family model homes (collectively, the "Models"),
which may be issued prior to the completion of the City Improvements.
6.3 Subsequent Building Permits. Other than building permits for the Models, no building
permits shall be issued for construction of a residence within the Subdivision until the following conditions
have been satisfied:
a. For each residential unit for which a building permit is requested (including the
models), the applicant shall pay a water connection fee and a sanitary service
connection fee in accordance with City Ordinances and fee schedules then in
effect_
b. The Final Plat (or a portion thereof if Developer elects to proceed in phases as set
forth below) and this Developer's Agreement must be recorded with the County.
C. With respect to the lot for which a permit is requested, the drainage, grading and
erosion control plan for such lot must be submitted and approved by the City
Engineer.
d. All other building permit requirements of the City's Ordinances applicable to
residential structures have been complied with, provided that in the event of any
inconsistency between the terms of this Agreement and the terms of such
ordinances, the terms of this Agreement shall control the building permit process
for the Subdivision.
6.4 Certificates of Occupancy. Other than for the Models, no certificates of occupancy shall
be issued for buildings within the Development until utility and road improvements to such buildings are
substantially completed (as reasonably determined by the City Engineer), provided, however, that the
bituminous wear course for the roads within the Development shall not be required to be installed until
75% of the residential lots in the Development have homes constructed upon them (or earlier at the
Developer's request), and thereafter, as weather conditions permit.
6.5 Design Review Board. The Developer acknowledges that the single family homes must
be approved by the City's Design Review Board. The City directs the Design Review Board not to
unreasonably withhold consent.
VII. CONSERVATION EASEMENT.
Upon development of any phase of the Development, Developer shall execute the Conservation
Easement in the form attached hereto as Exhibit K for the Property being developed in that phase. The
City and Developer shall take all reasonable actions necessary and convenient to legally describe the
Conservation Easement in a manner consistent with Exhibit K.
VIII. PLAT RECORDING
August 11, 2008 23
City Council Meeting Minutes
8.1 Plat Recording. All applicable conditions related to Plat approval must be met prior to the
recording of the Plat. The Plat must be recorded with the Ramsey County Recorder and/or the County's
Registrar of Titles, as the case may be, on or before the date that is one hundred eighty (180) days after
final plat approval has been granted by the City.
8.2 Conveyance of Lots. The Plat, and this Agreement must be recorded with the Ramsey
County Recorder and/or Registrar of Titles, as the case may be, prior to Developer's transfer of fee title
in any lot within the Plat.
8.3 Final Plat. City Staff is directed to take all necessary action to facilitate the completion
and recording of the Final Plat for the Project or any portion of the Project. The Developer may record
the Final Plat for all or a portion of the Project in accordance with the estimated phasing schedule on
Exhibit H.
IX. BINDING EFFECT
This Agreement shall be deemed to be a restrictive covenant and the terms and conditions hereof
shall run with the land described herein and be binding on and inure to the benefit of the heirs,
representatives and assigns of the parties hereto, and shall be binding upon all future owners of all or
any part of the Property, and shall be deemed covenants running with the land, provided however, that at
Developer's request, after all of the Developer Improvements have been accepted by the City and the
warranty periods therefore have expired, the City shall issue a Certificate of Completion, in recordable
form, stating that the Developer Improvements have been constructed and completed by Developer in
accordance with the terms hereof and have finally accepted by the City, and that Developer has
performed and is released from all of its obligations set forth herein, such that thereafter lots within the
Plat shall only be subject to the payment of special assessments as set forth in Section 2.5 hereof.
X. REMEDIES UPON DEVELOPER DEFAULT
Whenever any Developer Default occurs, the City, subject to any rights of third parties agreed to
by the City pursuant to this Agreement, or otherwise by written, executed instrument of the City, may,
upon thirty (30) days written notice and a reasonable opportunity for Developer to cure said Default, take
any one or more of the following:
a. The City may suspend its performance under this Agreement and the until it
receives assurances from Developer, deemed adequate by the City, that
Developer will cure its default and continue its performance under the Agreement.
b. The City may initiate such action, including legal or administrative action, whether
in law or in equity, as is necessary for the City to secure performance of any
provision of this Agreement or recover any amounts due under this Agreement
from Developer.
C. The City may draw upon or bring action upon any or all of the Securities provided
to the City pursuant to any of the terms of this Agreement.
XI. INDEMNIFICATION
11.1 The Developer releases from and covenants and agrees that the City and its City Council,
officers, agents, including their independent contractors, consultants and legal counsel, servants and
employees (hereinafter, for purposes of this Section only, collectively the "Indemnified Parties") shall not
be liable for and agrees to indemnify and hold harmless the Indemnified Parties against any loss or
damage to property or any injury to or death of any person resulting from any defect in the Subdivision,
except for loss or damage to property or any injury to or death of any person resulting from any defect in
August 11, 2008 24
City Council Meeting Minutes
the Subdivision resulting from the non-performance of any applicable agreement, negligence, any
misrepresentation or any willful or wanton misconduct of the Indemnified Parties.
11.2 Except for the negligence, any misrepresentation or any willful or wanton misconduct of an
Indemnified Party, the Developer agrees to protect and defend the Indemnified Parties and further
agrees to hold the aforesaid harmless from any claim, demand suit, action or other proceeding
whatsoever by any person or entity whatsoever resulting from the non-performance of any applicable
agreement, negligence, any misrepresentation or any willful or wanton misconduct of the Developer, its
employees, agents or contractors, provided that this indemnification shall not apply to the warranties
made or obligations undertaken by the City in this Agreement.
11.3 The City and the Indemnified Parties shall not be liable for any damage or injury to the
persons or property of the Developer or officers, agents, servants, or employees or any other person who
may be about the Subdivision due to any act if negligence of any person, unless due to the non-
performance of any applicable agreement, negligence, any misrepresentation or any willful or wanton
misconduct of an Indemnified Party.
11.4 All covenants, stipulations, promises, agreements and obligations of the City contained
herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the
City and not of any governing body member, officer, agent, servant or employee of the City, which shall
not be withheld if the Developer's proposed assignee to the financial capability to perform the
Developer's obligations is to be assumed by the proposed assignee.
XII. ASSIGNMENT
The Developer may not assign this Development Contract without the written permission of the
City Council and without providing the City with written notice of the proposed assignment at least 45
days in advance of the effective date of the assignment. If timely notice is provided to the City, the City's
permission will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, the
consent of the City shall not be required in connection with an assignment to an "Affiliate" in which the
Affiliate assumes all obligations of the Developer hereunder that accrue from and after the effective date
of the assignment. As used herein, the term "Affiliate" means an entity that is controlled by, or is under
common control with the Developer.
XIII. CHANGE OF ORDINANCES
The City finds that the approved development of the Plat according to the terms of this
Development Contract is a planned and staged development within the meaning of Minn. Stat.
§ 462.358, subd. 3(c). The City further finds that the actions of the Developer described herein, are of
substantial and enduring benefit to the quality of life, open space needs and financial needs of the City.
Accordingly, pursuant to Minn. Stat. § 462.358, subd. 3(c), the City agrees that if the following condition is
being met:
a. Developer is not in material default (and the time to cure has not expired) under this
Development Contract;
then for six (6) years after the date hereof, the City will not, without the prior written consent of the
Developer, for any particular phase or phases or the entire Project in which the Developer has such an
ownership interest, enforce or apply to this Development any change the City's Comprehensive Plan
(except as contemplated hereby or to permit the development of the Project as contemplated hereby), or
enforce or apply to this Development any change in ordinances establishing zoning, subdivision controls,
site plan regulations, official maps, and all policies and specifications adopted by the City to implement the
foregoing (all of which is hereinafter referred to as "Controls")(except as contemplated hereby or unless such
change is mandated by Minnesota Statutes and Minnesota Rules that, by their terms, must be complied with
August 11, 2008 25
City Council Meeting Minutes
notwithstanding any provision hereof to the contrary), for any particular Phase or Phases or the entire
Project in a manner which is inconsistent with the terms of this Development Contract and the Plat and
Development Plans approved herein with respect to the following:
i. permitted, conditional, accessory uses;
ii. development density;
iii. lot size;
iv. lot layout, depth and width;
V. building setbacks and building height;
vi. street conveyance requirements;
vii. essential improvement requirements;
viii. the terms and conditions of park dedication and contribution requirements
thereof;
ix. subdivision requirements;
X. specifications for sewer, water, drainage, street, landscape, trees, and other
improvements to be constructed by the Developer or the City and to be
owned and maintained by the City or Developer thereafter.
Notwithstanding the restrictions above -stated, the Developer may request a modification to the Controls for
a specific Phase within the Project and the City may grant the modification. After the last day of the sixth
year after the date hereof, the City may, pursuant to law, without the consent of the Developer, enforce or
apply to this Development any modification of the City's Comprehensive Plan or the City Code provisions
affecting such Phase with respect to the above matters. Until such time the City takes such action, the
provisions of this section shall remain in full force and effect.
XIV. INCONSISTENCY AMONG CONTROLS
To the extent an inconsistency or conflict exists among the Controls, and in the absence of a
consensual amendment addressing the inconsistency, the following documents in descending order shall
govern:
a. the Resolutions;
b. this Development Contract;
C. the Plat;
d. the Project;
e. the Development Plans; and
f. the City Code.
XV. MISCELLANEOUS
15.1 No Third Party Recourse. Third parties shall have no recourse against the City or the
Developer under this Development Contract.
15.2 Validity. If any portion, section, subsection, sentence, clause, paragraph or phrase of this
Development Contract is for any reason held to be invalid, such decision shall not affect the validity of
the remaining portions of this Development Contract.
15.3 Federal Agencies. If the Developer requires any evidence of this Development Contract for
the purpose of escrow requirements of the Federal Housing Administration, the Veterans Administration,
or any other United States government agency, the City will provide same at the request of the
Developer so the escrow deposit, herein provided for, may be considered a deposit in lieu of the deposit
normally made with such governmental agencies to guarantee the completion of required improvements.
15.4 Recording. The Development Contract and Plat shall be recorded by the Developer with
the County Recorder or Registrar and the Owner shall provide and execute any and all documents
August 11, 2008 26
City Council Meeting Minutes
necessary to implement the recording. The City shall receive two (2) copies of the recorded Plat from
Developer.
15.5 Binding Agreement. The parties mutually recognize and agree that all terms and conditions
of this recordable Development Contract shall run with the land herein described, and shall be binding
upon the heirs, successors, administrators and assigns of the Owner and Developer.
15.6 Amendment and Waiver. The parties hereto may by mutual written agreement amend this
Development Contract in any respect. Any party hereto may extend the time for the performance of any
of the obligations of another, waive any inaccuracies in representations by another contained in this
Development Contract or in any document delivered pursuant hereto which inaccuracies would otherwise
constitute a breach of this Development Contract, waive compliance by another with any of the
covenants contained in this Development Contract, waive performance of any obligations by the other or
waive the fulfillment of any condition that is precedent to the performance by the party so waiving of any
of its obligations under this Development Contract. Any agreement on the part of any party for such
amendment, extension or waiver must be in writing. No waiver of any of the provisions of this
Development Contract shall be deemed, or shall constitute, a waiver of any other provisions, whether or
not similar, nor shall any waiver constitute a continuing waiver.
15.7 Governing Law. This Development Contract shall be governed by and construed in
accordance with the laws of the State of Minnesota.
15.8 Counterparts. This Development Contract may be executed in any number of counterparts,
each of which shall be deemed an original but all of which shall constitute one and the same instrument.
15.9 Headings. The subject headings of the paragraphs and subparagraphs of this
Development Contract are included for purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions.
15.10 Access and Security. The Developer hereby grants to the City, its employees, officers, and
contractors a license to enter the Plat to perform all work and inspections deemed appropriate by the City
during the installation of Developer Improvements. The City agrees to indemnify and hold Developer,
Owner and the Property harmless from any and all claims, costs, expenses or damages, including
reasonable attorneys' fees resulting from such activities. This license shall not extend to any third party.
The Developer may take whatever reasonable measures are necessary to secure the site or any portion
thereof from trespass and intrusion including, but not limited to, security fencing, security gates and
private security services.
15.11 Notice. Any Notice required hereunder shall be as set forth in Section 1.20 of this
Agreement.
15.12 Change of Name of Plat. The Developer may change the name of the Plat, provided that
the change of the name of the Plat shall not constitute an amendment of the terms of this Agreement and
all terms of this Agreement remain in full force and effect.
15.13 Site Signage. Signage shall be allowed to the extent not prohibited by the City Code.
15.14 Tax Payments. Within 60 days of the execution of this Agreement, Developer shall cause
all property tax obligations due and owing to be fully paid.
XVI. DEDICATION OF PUBLIC ROADS
16.5 All public roads in the Plat shall be dedicated to the City upon recording of the Plat for any
phase of the Development
August 11, 2008 27
City Council Meeting Minutes
XVII. DISMISSAL OF ACTION AND RELEASES
17.1 Dismissal of Action.Within one week of the City's authorization of the execution of this
Agreement, the Developer will execute a Stipulation of Dismissal with Prejudice of an action entitled
CoPar Development v. City of Maplewood, Ramsey County Court File No. 62-C5-06-010746, which the
City shall then countersign and file with the Court along with a proposed order in the form attached
hereto as Exhibit L.
17.2 Effective upon the execution of this Agreement, and except only for the representations and
obligations of the parties under this Agreement and the Resolutions, Developer and any and all of its
partners, members, employees, agents, representatives, successors, assignees, transferees, joint
ventures, attorneys, and insurers, hereby release and discharge the City and its past and present agents,
officials, employees, representatives, assignees, transferees, joint ventures, attorneys, insurers, and risk
pools (including the League of Minnesota Cities Insurance Trust) from all manner of claims, demands,
actions, causes of actions, suits, debts, dues, sums of money, accounts, bills, covenants, contracts,
rights, obligations, controversies, agreements, promises, and demands whatsoever, whether in law or
equity, the Developer ever had, or now has, whether known or unknown, against the City, involving or
arising out of any application for development it has filed with the City regarding the Property or any part
thereof.
17.3 Effective upon the execution of this Agreement, and except only for the representations and
obligations of the parties under this Agreement and the Resolutions, the City, and any and all of its past
and present officers, elected officials, employees, agents, representatives, affiliates, divisions,
successors, assignees, transferees, joint ventures, attorneys, insurers, and risk pools hereby release and
discharge the Developer and its shareholders, partners, employees, agents, representatives,
successors, assignees, transferees, joint ventures, attorneys, and insurers, from all manner of claims,
demands, actions, causes of actions, suit, debts, dues, sums of money, accounts, bills, covenants,
contracts, rights, obligations, controversies, agreements, promises, and demands whatsoever, whether
in law or equity, the City ever had, or now has, or hereafter may have, whether known or unknown,
against the Plaintiff involving or arising out of any application for development Developer has filed with
the City regarding the Property or any part thereof.
IN WITNESS WHEREOF, the City and Developer have caused this Agreement to be duly
executed on the day and year first above written.
CITY OF MAPLEWOOD:
By:
Mayor
By:
City Clerk
August 11, 2008 28
City Council Meeting Minutes
STATE OF MINNESOTA )
) ss.
COUNTY OF )
On this day of , 200_, before me, a Notary Public, in and for
said County and State, appeared and to me personally known, who being by
me first duly sworn, did say that they are respectively the Mayor and the City Clerk of the City of
and said and acknowledge said instrument to be the free act and deed of said City
of by resolution adopted by its Council.
Notary Public
COPAR DEVELOPMENT, LLC
go
STATE OF MINNESOTA )
) ss.
COUNTY OF )
Its:
On this day of 200_, before me, a Notary Public, personally
appeared , the of Corporation, a Minnesota corporation, who
executed the foregoing instrument and acknowledged said instrument to be the official act and deed of
said corporation and that such act was authorized by the board of directors of said corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
MALKERSON GILLILAND MARTIN LLP
(HAR)
1900 U.S. Bank Plaza South Tower
220 South Sixth Street
Minneapolis, MN 55402
August 11, 2008 29
City Council Meeting Minutes
STATE OF MINNESOTA
COUNTY OF RAMSEY
CoPar Development,
v
City of Maplewood
EXHIBIT L
Plaintiff,
Defendant.
DISTRICT COURT
SECOND JUDICIAL DISTRICT
Case Type: Civil
Case No. 62-C5-06-010746
STIPULATION OF DISMISSAL WITH
PREJUDICE AND ORDER
The parties, through their counsel, hereby agree that this matter shall be dismissed with
prejudice, with all parties to bear their costs.
Dated: 12008 GREENE ESPEL, P.L.L.P.
SO
John M. Baker, Reg. No. 174403
200 S. Sixth Street, Suite 1200
Minneapolis, MN 55402
(612) 373-0830
Attorneys for Defendant
Dated: 12008 MALKERSON GILLILAND MARTIN L.L.P.
By
Howard A. Roston, Reg. No. 260460
220 S. Sixth Street, Suite 1900
Minneapolis, MN 55402
SO ORDERED.
Dated: 12008
Attorneys for Plaintiff
Judge of the District Court
August 11, 2008
City Council Meeting Minutes
30
Seconded by Councilmember Juenemann.
The changes were discussed between the attorney and council and were accepted by the
motioner and seconder.
Mayor Longrie made a friendly amendment that the cash escrow fee be changed to $80,000
rather than $30, 000.
Councilmember Rossbach did not accept the friendly amendment.
Seconded by Councilmember Juenemann Ayes — Councilmembers Juenemann,
Nephew & Rossbach
Nays — Mayor Longrie
& Councilmember Hjelle
The motion passed.
Councilmember Nephew moved to extend the council meeting past curfew to complete the
remainder of the agenda items.
Seconded by Councilmember Hjelle.
The motion passed.
The council took a break at 11:00 p.m.
The council reconvened at 11:05 p.m.
Ayes — Councilmembers Hjelle,
Nephew & Rossbach
Nays — Mayor Longrie &
Councilmember Juenemann
2. Receipt of Comprehensive Financial Report and Schedule Presentation from
Auditor for August 25, 2008.
a. Acting City Manager, Chuck Ahl gave the report. (No Action Needed)
Mr. AN said the Comprehensive Financial Report was given to the city council
after the council packet was completed. The council shall have the opportunity to
review the Comprehensive Financial Report until August 25, 2008, when the
auditor will give their presentation. Staff will make this report available on the city's
website.
L. NEW BUSINESS
Mayor Longrie recommended moving L2. ahead of L1. due to the length of the council meeting.
Seconded by Councilmember Juenemann. Ayes — All
The motion passed.
August 11, 2008 31
City Council Meeting Minutes
2. Off -Sale Intoxicating Liquor License — Larry Toth, New License/Manager, Costco
Wholesale.
a. City Clerk, Director Citizen Services gave the report.
b. Larry Toth, License Manager, Costco Wholesale addressed and answered
questions of the council.
Councilmember Hjelle moved to approve the Off -Sale Intoxicating Liquor License for Costco
Wholesale #1021, located at 1431 Beam Avenue, Maplewood under new License Manager, Larry
Toth.
Seconded by Councilmember Rossbach. Ayes — All
The motion passed.
1. St. Paul Fire Republican National Convention — Consider Approving Joint Powers
Agreement.
a. Maplewood Fire Chief, Steve Lukin gave the report. Chief Lukin said the name of
the report should have been called Joint Powers Agreement with the St. Paul Fire
Department.
Councilmember Hjelle moved to approve that the Maplewood Fire Department enter into a Joint
Powers Agreement with the St. Paul Fire Department.
August 11, 2008 32
City Council Meeting Minutes
jujN1" yOWERS AND BaFlUAL. !ID A„GREEMEW FOR WE OF
VIRE PERSO1VA11M MD EQULDPM N7
A2IplWwwK d Fire Depsztonent eua Satut P80 Ftrg DcPritmant
1. Pbrpose
Thi s ngmmcra Jo made pwwam to 1ltiorwm(u SIA4Ws 471.59 w1dch aulbodws tho jaiM end
000ppmative amiae of poweea eommUR to Mutractiog Pard s, In OmsideR6013 Of IhC mutual
wv0=W heroin contained and the beaeFiln Ib id owh Party 6W dmirohmaby, rhe iDUR1ian of
Iia Pardee to th6 Av ment ie 10 MWW eyuigmca% Pwmmci Md other rwmg= available, dw
m an unplatmed, unau ddpdW, w iwu:X Lypt hoed fluor eusbetween tho City sof 8aiztt
PmL tion& its Fina Dopurt mag (wWM and KaPkWmd, tha Pwdu BY= 89 follows.
Tds moo tud aid Apmed dodo not eaperoede the amort evntr= IP 00i is to Em Mpaaoeea to
3K cuipor000tian.
II. Det allde e
1. ' TartY' m-ww Maplewood F im DopeMmeat said Sd%4 Paul Fire Depszlmwd.
2.-Rroq=eting OMQ isl'• mems dw penes o deuigmabed Icy a Parley who ig r4wpommibls f*r
r questing AeeWme fmm 1t outer Par#g,
3, c7AquosdngParrY mesons it Pmty #hat requests aeaW=e from the WherFffV.
4, cFMon&nS Offizial" meaty the person designated bar a Party who is responsible to
detwmtm wh ether sad to what extmnt fist Pmrty will pmmide assis#snnn In a R,egwsti ng
Forty.
S. "Respond h4 Partys' mamm a Part+ that provides asd utI to R Reg=ting Party.
�, "Aeeietaaee"means firs~ andldar �y Beal emvieea pe�e1 and�os a�aeciated
equipnne�t.
7. d'SpEw;AI; n d Adivitiea'" means non emergeney Aeeiabmce tv include but and be limited
to; re inveatig kw6 fnv anspeen s, Jane adueeton, Etre bs'prumm, nb* pm onmcl, and
s anninrwd "dpment and feciltiiea.
IIL Perdes
Th a parties of thi is Aid WW comsist of the City of Mnplewoad sad the City of Sidit Psu1
Fire DepartmaW.
Pop Iof4
August 11, 2008 33
City Council Meeting Minutes
IV. prMedure
1. Request for Ulk"nce.
WhWMW, in the apron of a RZgiiesting Official, thele is It need fief esgistanee fmrn elle AN
Party, dw Ragw dqg Cffdul may cell upun U Rtaapandlyg O113c1a1 aftluc ud=' Pa¢#y to
furnish saaistariee. Sp eddizod acfviOn of a nm-w=z nay nsh, my algia br. r+equeeted
andlar pmuided by the parties of this Agmm=t
2. 9sepome to reuest.
Upen the reaquat for wee from a Rcqueetigg Partyr d= RAVonfiM Official may autbarize
and direct blather Party's p`eeaotzisdl to provide m6 t m to tte >liopasting Party. This decielsan
will bo oade ajW c anddadq the nDDh of the r+egwnding party sad the aveilelbility of
=Dun=.
3. Recall of Aeefeta■m
The Responding OfTiaiel mgy at any time r=11 mch awtanoe when in hie or her beat judgmaA
w by m order iim the pnmuiog body of & Respmiding Party, it is coriideaed to be in the bet
it ants afthe Raqwft Party to din an.
4. Corm ed of Bcm &
The Rcquasting Facey dell be in oommind of the mutual aid ecce. The pen marl end
equVmmnt of the Respo nft party shall be under the d1wdion and contml of the Rtgijea ft
Party until the RMoadiq Official withdraws assietarm
V. Work=' coatpeoerrtiou
3ach tarty shall be r spcneiblc for inj ru'ica or death of its overt #craonnel, ]Each Party will
mdoWn worbus' compensation ineurmoe or self-imumme coveraw6 oavwing its own
personal while thay are providig asaistam pumumt to this Agee moo, Each Part+
waives tha i*t to sue any atter Parly far any workers' compensation bmefi s paid to iia
awn employee or th* dqmdviK even if the injuries were caused wholly or pwk@Uy by
tbr,negligence of myoffia Party or its offices, employeas, aged orvoiMbeers.
2. All p erimmel of the =d* ParW shah remain employas of the Responding Pmrty
and shall not be amidmd tampoM ar perm cW -employees of the Requmfing Pasty
for ony ptinpcw whsm'oo w or be entitled to teoright or imy rights or hemi& by way
of workers cony aatioa, r+d-anrployment invurmme, medical end hospital car% and
vacaticn Iia% amuar mu pay, PffilA or my atter r*t oarboa fit oftha Rapiesdq
Patty. The Patties eclmowle* kkueir indWduel rmepomith lity in provide all ealwy
cmnpom d6n and hinge bom its to their employoets while per-brmiq sasvioes an behalf
of the Regtieft Forty. Benefits may inmkxK but ata not Hmiitcd ta, health em.,
disability insurance; life hmuzow, re-employment inswunce, FICA, Medicare, PEPA,
,Vacation, sick leave, and ugmid leave of abmw.
Pafe 2 ufA
August 11, 2008 34
City Council Meeting Minutes
VL Donor to egnipF I
Seen Partly shall be responsible fico' d=rags to or ]ass Df its awn cgnipmcat, Each Party waivcs
the right to am nW other Parley for my dwaagas t4 or loss ofits equipment. ment. avec ifthe daumaps
yr l ams w= caaaad wholly gr pmlplly l?y flys n8SHWnw of any other Party or its nftioen,
app ayees, or volunteers.
M LIARRy
Bach Pew to this Ment shdi be liable for its awn acb W the czkmd pto vidod by law
and Immby agm to indemnify, hold hu mtess, and dlefiend tba athm, its ofrmEn ad
employees against imy gad al l liebility.loss, coats, dumagm ap mes, cbdm t, or se fans,
1 raluclwg etturnWe No which &a otm, Is of tem mod wnployr macy hannihm
sustda, tar, or be ra ptmed 1n pay, wi ft out of or by reason of any est or Moat of
the Party, % asmafB, or =pkrycm,
2. Vader no chmmat=m, hmkvea, shall a Party 1w required to- pay am behalf ofitaelf and
other pi atiee, any wiomh in eaoess of the limits on liability estabb abed in Mbm 'p4
Statutes Chaptcr466 or Mfi=mft $fetes $ant lea 471.99 applimble to any one Farcy.
The lirnits of h ability for same or all elf #be In ii ee may ma# be added togedw to
detarv*e the maximum am unt of liability for any Party.
3. No Party to ads Agnem wd nod any oflim of any Party shall be, liable to any
otherParty or to any other person for failure of any Party W furnish ass61mm to
any other Pw ty, or far recalling assistance, both as described in this Agremnent
VI>Q. Chargee to the Requmdog Party
A lip andhM Party to this Agreement will levy raa charges £nr assi bow
rendered to a hugaesting Party under the tonna of tlik Agreament unless the
a m idance, provided far a single inc dent 7espomae or a group of asanciated
incidenu continues fad a period of more than ti& (a) hmn. If, in aggra the
taml number of mitral aid hour exceak eight (8) hours is a maven (7) day
paaitod, the Raepmdittg Peaty maybla tk YiquaAittg MW br i cuuvd
e q== an to agreed uponrate, The Requesting Party shall n1pWIm W tha
lawh of time Qf the aaaisuffr,% n imwrw to Roaparuiiug Parley for RIpplies
used. I#'ses7stand provided imdar this Awamumt oontinues far mora than eight
(5) hou% the RUPOdiiug Patgt will eabluit W the Roqua&% PEAy on i=ln d
bill for the actual cost of any assisfanca provided at= initial eight (11) boor
period, including salaries, orrsztinuk ma miiala and Molieg and Other neemeea y
cq mm; wad the Raquetft Party&all reimburn the Party pwvi ft the
matmwB far that amirnmt.
Pejc 3 afill
August 11, 2008 35
City Council Meeting Minutes
2, Such rLsr aye riot contim gemt upas the availability of £ailmal ur stats
goveenmW fund.
Ilii. Duration
Tors Agroomest will be in Samoa ft+om the date -of e: wuflon and notifie atina by the Cities of
MWewaod arud Saint Paul. iBitlher Party maywithdraw fmot this Agmment.upon Uft (30)
days written notice to the other Party or parties of the Agvement.
X Execution
Ewl Party hereto hes need, agreed to mid exeirted this Mutuat Aid Agmen hen en th a date
lodicatad.
City of Belot Few City of ilydaplewood
By:
By:
7166; Mayor
Title:
Date.,
Date:
By:
By.
Title: Fire Chief
Title:
Date:
Date.
By,
Sy:
Title: City Attamay
Title:
Date:
Date;
By
Title! D imew of'Fineaseia Saviow
Date:
Seconded by Councilmember Juenemann. Ayes — All
The motion passed.
fae a oro
August 11, 2008 36
City Council Meeting Minutes
3. Consider Report on Formation of Green Team for City Operations.
a. Environmental Planner, Shann Finwall gave the report.
b. City Attorney, Alan Kantrud answered questions of the council.
Councilmember Nephew moved to appoint Councilmember Hielle as the Council Liaison to the
Newly Formed Green Team.
Seconded by Mayor Longrie. Ayes — Mayor Longrie,
Councilmembers Juenemann,
Nephew & Rossbach
Abstain — Councilmember Hjelle
The motion passed.
4. Approval of Claims.
Councilmember Rossbach moved Approval of Claims
ACCOUNTS PAYABLE:
$
1,859,801.66
Checks # 76055 thru # 76120
$
161,547.73
Disbursements via debits to checking account
Dated 07/17/08 thru 07/25/08
$
554,434.50
Checks # 76121 thru # 76175 dated 08/05/08
$
328,646.51
Disbursements via debits to checking account
dated 07/25/08 thru 07/31/08
$
Total Accounts Payable
2,904,430.40
PAYROLL
$
587,286.97
Payroll Checks and Direct Deposits dated 07/25/08
$
3,665.90
Payroll Deduction check #1005611 thru #1005612 dated 07/25/08
$
Total Payroll
590,952.87
$
3,495,383.27
GRAND TOTAL
Seconded by Councilmember Nephew. Ayes — Mayor Longrie,
The motion passed.
Councilmembers Juenemann,
Nephew & Rossbach
Nays — Councilmember Hjelle
August 11, 2008 37
City Council Meeting Minutes
M. CONSENT AGENDA
a. Acting City Manager, Chuck AN answered questions of the council and then reviewed the
Consent Agenda.
Councilmember Juenemann moved to approve items 1, 2, and 4.
Seconded by Councilmember Hjelle. Ayes — All
The motion passed.
2. Councilmember Juenemann moved to approve item 3.
Seconded by Councilmember Nephew. Ayes — All
The motion passed.
1. TH 61/Frost Avenue Improvements, City Project 07-30, Approval of Mn/DOT Cooperative
Agreement No. 92564.
Councilmember Juenemann moved to approve the Resolution for the TH 61/Frost Avenue
Improvements. Citv Proiect 07-30: Approval of Cooperative Aareement No. 92564. and authorize
the City Engineer/Public Works Director to sign the agreement signifying approval by the mayor
and council.
CITY OF MAPLEWOOD
RESOLUTION 08-08-118
TO ENTER INTO MN/DOT AGREEMENT NO. 92564 WITH
THE STATE OF MINNESOTA, DEPARTMENT OF TRANSPORTATION
IT IS RESOLVED that the City of Maplewood enter into MN/DOT Agreement No. 92564 with the
State of Minnesota, Department of Transportation for the following purposes:
To provide for payment by the State to the City of the State's share of the costs of the intersection
improvement construction which includes bituminous surfacing, concrete curb and gutter and trail
improvements, and the traffic control signal construction to be performed upon, along and
adjacent to Trunk Highway No. 61 at County State Aid Highway No.27 (Frost Avenue) — Parkway
Drive within the corporate City limits of Maplewood under State Project No. 6222-154 (T.H.
61=001), State Aid Project No.'s 62-627-05, 138-010-013, 138-020-035, and 138-151-001, and
City Project No. 07-30.
IT IS FURTHER RESOLVED that the City Engineer/Public Works Director is hereby authorized
by the Mayor and City Council to execute the Agreement and any amendments to the Agreement.
Adopted by council this 11th day of August 2008.
Seconded by Councilmember Hjelle. Ayes — All
The motion passed.
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2. Hazelwood Street Improvements, City Project 07-25, Resolution for Modification of the
Existing Construction Contract, Change Order No. 1 (Trail Improvements).
Councilmember Juenemann moved to approve the Resolution for Modification of the Existing
Construction Contract, Change Order No. 1 (Trail Improvements) for the Hazelwood Street
Improvements, City Project 07-25.
RESOLUTION 08-08-119
DIRECTING MODIFICATION OF EXISTING CONSTRUCTION CONTRACT
PROJECT 07-25, CHANGE ORDER NO.1
WHEREAS, the City Council of Maplewood, Minnesota has heretofore ordered made
Improvement Project 07-25, Hazelwood Street Improvements, and has let a construction contract
pursuant to Minnesota Statutes, Chapter 429, and
WHEREAS, it is now necessary and expedient that said contract be modified and
designated as Improvement Project 07-25, Change Order No. 1.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD,
M I N N ESOTA that:
1. The finance director is hereby authorized and directed to modify the budget to reflect
the Mn/DOT Cooperative Agreement Funding in the amount of $40,000.
2. The mayor and city engineer are hereby authorized and directed to modify the existing
contract by executing said Change Order No.1 in the amount of $73,234.75.
The revised contract amount is $1,314,531.00.
Seconded by Councilmember Hjelle. Ayes - All
3. Consider Resolution Accepting Donation to Police Department. (Requires 4 votes)
Councilmember Juenemann moved to approve the Resolution Accepting the $50 Donation to the
Police Department. Also recommended that approval be given for the acceptance of any future
donations of this kind from Residential Mortgage Group.
RESOLUTION 08-08-120
WHEREAS the Maplewood Police Department has received a $50 donation from
Residential Mortgage Group on behalf of a client through their program called "Refer a friend.
Build your community;" and
WHEREAS this program allows a person who closes a mortgage through Residential
Mortgage Group to designate a school, fire, or police department to receive a donation to improve
the communities where they will be living;
NOW, THEREFORE, BE IT RESOLVED that the Maplewood City Council authorizes the
Police Department to accept this $50 donation.
August 11, 2008 53
City Council Meeting Minutes
I certify that the above resolution was adopted by the City Council of the City of Maplewood,
Minnesota, on August 11, 2008.
SIGNED:
(Signature)
Mayor
(Title)
(Date)
Seconded by Councilmember Nephew.
The motion passed.
WITNESSED:
(Signature)
City Clerk
(Title)
(Date)
4. Lawful Gambling License— Church of Saint Bernard's.
Ayes — Al I
Councilmember Juenemann moved to approve the Resolution for the Lawful Gambling License
for Church of Saint Bernard's to operate at the Chalet located at 1820 Rice Street, Maplewood.
LAWFUL GAMBLING LICENSE RESOLUTION 08-08-116
CHURCH OF SAINT BERNARDS
BE IT HEREBY RESOLVED, by the City Council of Maplewood, Minnesota, that the
premises permit for lawful gambling is approved for the Church of Saint Bernard's to operate at
the Chalet, located at 1820 Rice Street, Maplewood, Minnesota.
FURTHERMORE, that the Maplewood City Council waives any objection to the timeliness
of application for said permit as governed by Minnesota Statute §349.213.
FURTHERMORE, that the Maplewood City Council requests that the Gambling Control
Division of the Minnesota Department of Gaming approve said permit application as being in
compliance with Minnesota Statute §349.213.
NOW THEREFORE, be it further resolved that this Resolution by the City Council of
Maplewood, Minnesota, be forwarded to the Gambling Control Division for their approval.
Seconded by Councilmember Hjelle. Ayes — All
The motion passed.
N. AWARD OF BIDS
None.
H. Council Presentations (H1. — H2. Carried over to the end of the council meeting)
August 11, 2008 54
City Council Meeting Minutes
1. Follow-up on National Night Out on August 4, 2008 — (Councilmember Juenemann)
a. Councilmember Juenemann commented on the success of National Night Out and
thanked everyone involved in making the event a success.
b. Maplewood Police Chief, Dave Thomalla commented on the 76 parties there were
for National Night Out and the number of officers that attended the evening.
2. Ramsey County Dispatch — (Councilmember Juenemann)
a. Councilmember Juenemann wanted to update the council on the concerns that
have been written about in the newspaper regarding the new Ramsey County
Dispatch center. Councilmember Juenemann then updated the council on the
progress that has been made with the Ramsey County Dispatch center.
Councilmember Juenemann also acknowledged Jan Rehbein, a dispatcher that
worked at the city offices for many years who is very ill at this time and asked that
we offer support to her and her family at this time.
O. VISITOR PRESENTATIONS — PART II
None.
P. ADJOURNMENT
Mayor Longrie adjourned the meeting at 11:51p.m.
August 11, 2008 55
City Council Meeting Minutes
tb
This is the information for the minutes for the last meeting as it rela es o CoPar.
CG
From: John M. Baker [mailto:JBaker@greeneespel.com]
Sent: Tuesday, August 19, 2008 1:02 PM
To: Chuck Ahl; H.A. Kantrud; Karen Guilfoile
Subject: FW: Development Agreement and Stipulation for Dismissal and Order
Karen, Chuck and Alan:
I just want to confirm that the additional language in the Developer's Agreement version that I'd
circulated last week after the Council meeting does not contradict what's in the minutes, and that
there's no other reason for me not to go forward to get it executed, along with the stipulation for
dismissal.
John M. Baker
JBaker@greeneespel.com
From: Howard A. Roston [mailto:har@mgmllp.com]
Sent: Wednesday, August 13, 2008 1:38 PM
To: Terri J. Smith
Cc: John M. Baker; Chuck Ahl; Kurt Schneider; thansen@coparcompanies.com
Subject: FW: Development Agreement and Stipulation for Dismissal and Order
Terri
Here is the final development agreement. Please change out the new phasing
exhibit I forwarded to you, put it in recordable form (proper margin at the top) and
circulate a final one. I will get 4 originals signed. One of the originals will have
the smaller exhibits for recording purposes. The other three will have the full size
plans. Terri, check with Carrie on making sure everything is in recordable form.
John, let me know when you want to close this.
From: John M. Baker [mailto:JBaker@greeneespel.com]
Sent: Tuesday, August 12, 2008 12:06 PM
To: Howard A. Roston; H.A. Kantrud; Chuck Ahl; Karen Guilfoile
Cc: Kurt Schneider; thansen@coparcompanies.com
Subject: Development Agreement and Stipulation for Dismissal and Order
Howard, Chuck, Karen and Alan:
I've created another redlined draft of the Developer's Agreement (with the changes from
last night) and am attaching that, along with Exhibit L (the Stipulation for Dismissal). I
hope this matches the changes that were made verbally before the vote; let me know if
that's not the case.
Howard, I'll leave it to you to make the margin adjustments.
Thanks again to everyone for your cooperation and assistance.
CITY OF MAPLEWOOD
RAMSEY COUNTY, MINNESOTA
DEVELOPER'S AGREEMENT
FOR CARVER CROSSING DEVELOPMENT
THIS AGREEMENT, made and entered into this _ day of , 2008, by
and between the City of Maplewood, a municipal corporation and political subdivision organized
under the laws of the State of Minnesota (hereinafter referred to as "City"), and CoPar
Development, LLC, a Minnesota limited liability company (hereinafter referred to as
"Developer").
WITNESS:
WHEREAS, the Developer is the fee owner of the Real Property described on Exhibit A
hereto ("Property");
WHEREAS, the Developer has sought approval from the City and the City has approved
the development of the Property in accordance with the terms of this Agreement, Resolutions 08-
05-068, 08-05-069 and 08-05-070 (collectively, "Resolutions," attached hereto as Exhibit I) and
the Development Plans, each of which are incorporated herein by reference;
WHEREAS, the City Council of the City (the "Council") has, by the Resolutions passed
on May 12, 2008, (1) approved a Conditional Use Permit for a Planned Unit Development of the
Property (2) Directed the Vacation of Existing Easements, (3) Approved a Preliminary Plat and
(4) approved settlement concepts regarding the resolution of certain litigation (Ramsey County
Court File No. 62-C5-06-010746) by and between the Developer and the City;
WHEREAS, the development of the Property by the Developer consists of a project
("Project') more particularly described in the Documents and as further described in this
Agreement. Generally, the Project consists of 174 unit single family residential development
with conservation easements, 300 foot protected corridor for Fish Creek and approximately
29.35 acres of open space;
WHEREAS, the City acknowledges that the Developer may develop the Property in
phases as described herein;
WHEREAS, the City acted as the Responsible Governmental Unit ("RGU") in
connection with a discretionary Environmental Assessment Worksheet and resolution dated July
10, 2006 the City Council issued a negative declaration on the need for an Environmental Impact
Statement;
WHEREAS, the Developer agrees that development of a certain portion of the Property
(depicted on Exhibit A) will be delayed under the terms as set forth herein;
WHEREAS, it is the policy of the City to enter into development contracts as
contemplated in Minnesota Statutes Section 462.358, Subd. 2(a); and
WHEREAS, the Findings attached hereto as Exhibit B are incorporated by reference.
WHEREAS, the parties hereto desire to set forth their respective rights and obligations of
the parties to this Agreement with respect to development of the Subdivision.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and of the mutual promises and
conditions contained herein, it is agreed by the parties hereto as follows:
I. DEFINITIONS
The following terms, unless elsewhere defined specifically in the Development Contract,
shall have the meanings as set forth below.
1.1 CC. "City" means the City of Maplewood, a Minnesota municipal corporation.
1.2 Developer. "Developer" means CoPar Development, LLC.
1.3 Owner. "Owner" means CoPar Development, LLC.
1.4 Plat. "Plat' means the plat of Carver Crossing Development comprising the real
property located in the City of Maplewood, County of Ramsey, State of Minnesota, and legally
described on the attached Exhibit A.
1.5 Development Plans. "Development Plans" means all those plans, drawings,
specifications and surveys identified and checked on the attached Exhibit C, and hereby
incorporated by reference and made a part of this Development Contract and described below:
a. Preliminary Plat.
b. Site Plan.
C. Concept Plan with Referendum Areas.
d. Grading, Erosion Prevention, and Sediment Control Plan.
e. Utility Plan.
f. Storm Water Management Plan.
g. Wetland Mitigation/Rain Garden Plan.
h. Tree Preservation Plan.
i. Open Space Plan.
j. Master Landscape Plan.
k. Landscape Plan - North One -Half.
1. Landscape Plan — South One -Half.
in. Landscape Plan Planting Schedule and Details.
1.6 Development Contract or Agreement. "Development Contract" or "Agreement"
means this agreement by and between the City and the Developer.
1.7 Council. "Council" means the Council of the City of Maplewood.
1.8 City Engineer. "City Engineer" means the City Engineer of the City of Maplewood,
as authorized by the Council.
1.9 County. "County" means Ramsey County, Minnesota.
1.10 Other Regulatory Agencies. "Other Regulatory Agencies" means and includes,
jointly and severally, the following:
(a) Minnesota Department of Transportation;
(b) Ramsey County;
(c) Ramsey -Washington Watershed District;
(d) State of Minnesota;
(e) Minnesota Department of Natural Resources;
(f) Army Corps of Engineers;
(h) Any other regulatory or governmental agency or entity
affected by, or having jurisdiction over the Developer
Improvements.
1.11 Utility Companies. "Utility Companies" means and includes, jointly and severally,
the following:
(a) utility companies, including electric, gas, cable television and
telephone; and
(b) pipeline companies.
1.12 Property. "Property" means the property described on Exhibit A to this
Development Contract.
1.13 Developer Improvements. "Developer Improvements" means and includes, jointly
and severally, all the improvements identified in Article I1 and on the attached Exhibit D.
1.14 City Improvements. "City Improvements" means and includes, jointly and
severally, all the improvements identified in Article 11 of this Agreement and on the attached
Exhibit E.
1.15 Improvements. "Improvements" means both the City Improvements and the
Developer Improvements.
1.16 Developer Default. "Developer Default" means and includes, jointly and severally,
any of the following or any combination thereof:
a. failure by the Developer to construct the Developer Improvements
according to the Development Plans and the City standards and
specifications as set forth herein;
failure by the Developer to observe or perform any covenant,
condition, obligation or agreement on its part to be observed or
performed under this Development Contract;
C. breach of the Developer Warranties.
1.17 Force Majeure. "Force Majeure" means acts of God, including, but not limited to
floods, ice storms, blizzards, tornadoes, landslides, lightning and earthquakes (but not including
reasonably anticipated weather conditions for the geographic area), riots, insurrections, vandalism,
trespass, disease, war or civil disorder affecting the performance of work, blockades, power or other
utility failures, and fires or explosions.
1.18 Developer Warranties. "Developer Warranties" means that the Developer hereby
warrants and represents the following:
a. Authori1y. Developer has the right, power, legal capacity and authority to
enter into and perform its obligations under this Development Contract, and
no approvals or consents of any persons are necessary in connection with the
authority of Developer to enter into and perform its obligations under this
Development Contract.
b. No Default. Developer is not in default under any lease, contract or
agreement to which it is a party or by which it is bound which would affect
performance under this Development Contract. Developer is not a party to
or bound by any mortgage, lien, lease, agreement, instrument, order,
judgment or decree which would prohibit the execution or performance of
this Development Contract by Developer or prohibit any of the transactions
provided for in this Development Contract.
C. Present Compliance with Laws. Developer has complied with and is not in
violation of applicable federal, state or local statutes, laws, and regulations
including, without limitation, permits and licenses and any applicable
zoning, environmental or other law, ordinance or regulation affecting the
Plat and the Development Plans and the Developer Improvements; and
Developer is not aware of any pending or threatened claim of any such
violation.
d. Continuing Compliance with Laws. Developer will comply with all
applicable federal, state and local statutes, laws and regulations including,
without limitation, permits and licenses and any applicable zoning,
environmental or other law, ordinance or regulation affecting the Plat and the
Development Plans and the Developer Improvements.
e. Warranty on Proper Work and Materials. The Developer warrants all work
required to be performed by it under this Development Contract against
defective material and faulty workmanship for a period of one (1) year after
its completion and acceptance by the City in the form set forth on Exhibit F.
During the warranty period, the Developer shall be solely responsible for all
costs of performing repair work required by the City within thirty (30) days
of notification. All trees, grass, and sod shall be warranted to be alive, of
good quality, and disease free for one (1) year after planting. Any
replacements shall be similarly warranted for one (1) year from the time of
planting. In addition, the warranty period for drainage and erosion control
improvements shall be for one (1) year after completion and acceptance by
the City; the warranty for the drainage and erosion control improvements
shall also include the obligation of the Developer to repair and correct any
damage to or deficiency with respect to such improvements. The warranty
for the asphalt roadway extends for one (1) year after the installation of the
final asphalt lift. All other warranty periods begin at the date when each
improvement is accepted by the City.
f. Obtaining Permits. The Developer shall obtain and pay for all required
permits, licenses and approvals, and shall meet all requirements of all
applicable, local, state and federal laws and regulations which must be
obtained or met before the Developer Improvements may be lawfully
constructed.
1.19 City Warranties. "City Warranties" means that the City hereby warrants and
represents as follows:
a. Organization. City is a municipal corporation duly incorporated and validly
existing in good standing the laws of the State of Minnesota.
b. Authori . City has the right, power, legal capacity and authority to enter
into and perform its obligations under this Development Contract.
C. Approval. The Development Plans have been approved and all actions
required by the City have been satisfied to permit the development in
accordance with the Development Plan.
1.20 Formal Notice or Notice. "Formal Notice" or "Notice" means notices given by one
party to the other if in writing and if and when delivered or tendered either in person or by
depositing it in the United States mail in a sealed envelope, by certified mail, return receipt
requested, with postage and postal charges prepaid, addressed as follows:
If to City: City of Maplewood
Attn: City Manager
1830 County Road B. East
Maplewood, Minnesota 55109
If to Developer: CoPar Development, LLC
Attn: Tom Hansen
8677 Eagle Pt. Blvd.
Lake Elmo, Minnesota 55402.
or to such other address as the party addressed shall have previously designated by notice given in
accordance with this Section. Notices shall be deemed to have been duly given on the date of
service if served personally on the party to whom notice is to be given, or on the third day after
mailing if mailed as provided above, provided, that a notice not given as above shall, if it is in
writing, be deemed given if and when actually received by a party.
1.22 City Code or Ordinance. "City Code" or "Ordinance" means the City's Code of
Ordinances, and any applicable regulations and/or policies and specifications implementing the
same, in effect as of the date hereof.
1.23 Referendum Property. "Referendum Property" means the property as described
on Exhibit G identified as Lots 2 through 17, Block 10 and that portion of Outlot E as described
on Exhibit G.
1.24 Referendum Lots. "Referendum Lots" means Lots 2 through 17, Block 10 of
Fxhihit G
1.25 Development. "Development" means the Improvements to the Property in
accordance with the terms of this Agreement.
1.26 Project. The term "Project" is defined as set forth in paragraph 2.1 of this
Agreement.
II. DESCRIPTION OF THE PROJECT; DEVELOPER
IMPROVEMENTS; CITY IMPROVEMENTS
2.1 The Project includes both Developer Improvements and City Improvements in
accordance with the Resolutions and the Development Plans ("Project"), and the Documents.
2.2 City Staff is directed to take all reasonable actions necessary and convenient to
facilitate the development of the Improvements on the Property and the Project in accordance
with the Development Plans and this Agreement. Developer shall construct Developer
Improvements in accordance with the Development Plans and the Ordinances of the City.
Notwithstanding anything to the contrary the Developer Improvements may be installed
in phases in accordance with the anticipated phasing scheduled attached hereon as Exhibit H.
The parties recognize that the phasing schedule on Exhibit H is an estimate only. With the
exception of compliance with CUP Resolution condition No. 2 regarding the start of proposed
construction and deferral of development of the area potentially subject to the 2008 referendum,
the timing of the development may vary depending on market conditions and other
circumstances not within the Developer's control. Regarding CUP Resolution condition No. 2, a
substantial start on the proposed construction north of Fish Creek shall constitute satisfaction of
that condition for purposes of the Development.
a. Developer's Agreement to Withhold Development on the Referendum
Propeqry. Developer agrees that the Referendum Property shall not be
developed and no Developer or City Installed Improvements shall be
constructed on the Referendum Property prior to June 30, 2009
("Referendum Date"). Rather, the City may seek funding sources from
any source deemed appropriate by the City for the purchase of all or a
portion of the Referendum Property by the Referendum Date. The
Purchase Price for the Referendum Property shall be $150,000 per
Referendum Lot purchased by the City and, if the City purchases the
entire Referendum Property, the purchase price shall be $2,400,000
("Referendum Purchase Price"). In the event that the City notifies the
Developer not later than thirty (30) days before the Referendum Date of its
intent to acquire the Referendum Property for the Referendum Purchase
Price, the Developer shall no later than June 30, 2009 ("Closing Date")
convey the Referendum Property to the City for the Referendum Purchase
Price and the City shall complete the purchase of the Referendum Property
by the Closing Date. Both the City and the Developer shall execute all
documents and take all actions reasonably necessary to convey the
Referendum Property to the City in the event that the City timely notifies
the Developer of the City's intent to acquire the Referendum Property.
While the City can elect which Referendum Lots to purchase, the City
may not acquire less than full Referendum Lots and all Referendum Lots
purchased by the City shall be contiguous. In the event that the City does
not timely notify the Developer of its intent to purchase the Referendum
Property by the Referendum Date, the Developer may thereafter, at its
discretion, develop the Referendum Property in accordance with this
Agreement. In the event that the City timely exercises its rights to
purchase the Referendum Property hereunder, the City may also require
the developer to convey to the City some or all green space identified as
the Open Space Plan (Exhibit C, Sheet C-10) ("Green Space") to the City
for the purchase price of $1.00. In the event that the City acquires the
Referendum Property and the Green Space, the City shall not thereafter
develop or permit development of the Referendum Property or the Green
Space.
2.3 City Installed Improvements. In accordance with the Ordinances of the City, the
City Improvements shall be constructed and installed by the City and thereafter assessed to the
benefiting property owners as set forth in this Agreement. The City Improvements shall be
completed in accordance with the phasing schedule Exhibit H and no later than six (6) months
after Developer notifies the City in writing of the need for the City Improvements for any phase
of the Development. Time is of the essence for the completion of those City Improvements for
those phases for which the Developer provides six months' prior notice to the City of the
Developer's commencement of development of that phase, except that the City may extend this
period by up to three additional months because of weather, by giving 90 days notice to the
Developer. The Developer shall have joint approval over the final design for all City Installed
Improvements, provided that both the Developer and the City agree that the final design for the
City Installed Improvements shall be consistent with Exhibit E. The City shall be responsible for
obtaining any required permits for all City Installed Improvements.
2.4 Construction Meetings. At least three (3) business days prior to commencing
construction of the Developer Improvements or the City Improvements (and any Phase thereof),
the Developer and the City shall hold a pre -construction conference.
2.5 Repayment of Costs of City Improvements.
a. Special Assessments.
The initial costs of the City Improvements shall be paid by the
City. The costs of the City Improvements shall be repaid through
the levy of special assessments against the Property. The special
assessments shall be payable by installments, and the installments
shall be spread over fifteen (15) years from the date that the
assessment is levied in accordance with Minnesota Statutes
Chapter 429. The City will specially assess for the City
Improvements at the exact cost of the bond -sale and at the same
rate issued to the City. The special assessments for each category
of Public Improvements shall be levied as set forth in
paragraph 2.8 below and in accordance with Minnesota Statutes,
Chapter 429.
ii. The costs of the City Improvements that may be specially assessed
include only those cost set forth on Exhibit E. The Developer shall
reimburse any reasonable costs incurred by the City for
engineering, legal and administrative services associated with the
project, which shall not include any costs arising from the
Litigation or its settlement. The City OLay assess for its reasonable
underwriting fees. The final costs of such Public Improvements
will be determined in accordance with Minnesota Statute Chapter
429. The City agrees that the assessments will be spread against
the lots in the Subdivision and subsequent Phases in a manner
reasonably acceptable to the City and Developer, provided,
however, that the parties acknowledge and agree, to the extent
permitted by law, that (a) to the extent any of the City
Improvements benefit subsequent Phases, a portion of the costs
Deleted: Public
Deleted: shall not
thereof that is directly correlated to the benefit derived from the
improvements may, at the request of the Developer, be assessed
against such subsequent Phases, (b) at the request of the
Developer, certain lots to be developed by the Developer shall bear
a greater portion of the assessments charged to the lots in the
Subdivision, and (c) the special assessments shall be paid over a
fifteen (15) year period.
iii. Developer and its successors waive any and all procedural and
substantive objections to the special assessments, including, but
not limited to, any claim that any assessment exceeds the benefit to
the property served.
iv. Developer and its successors waive any appeals and rights
otherwise available pursuant to Minnesota Statutes Sections
429.036 and 429.081.
2.6 [RESERVED]
2.7 Force Majeure. The deadlines set forth in Exhibit J and the dates for Developer's
and City's performance of their other obligations hereunder may be extended due to Force
Majeure. In the event of Force Majeure, the deadlines and dates for performance of the
Developer's and City's obligations hereunder shall be extended for the period of the delay.
2.8 Security. Developer agrees to provide financial security as set forth in either
Option A or Option B below (at Developer's option).
Option A. Prior to preliminary engineering by the City for each phase of the
Development, the Developer shall provide to the City a cash escrow equivalent to the
City's reasonable estimate of its preliminary engineering fees, determined for the first
phase of the Project to be $30,000 and shall waive all objections to the City's immediate
assessment against the Property of the full amount of the City's estimated expenses for
the City's Improvements for each phase. For all phases of the Development after the first
phase, the Developer shall provide to the City a cash escrow equivalent to the City's
reasonable estimate of its preliminary engineering fees for that particular phase not to
exceed the actual and reasonable costs thereof and shall waive all objections to the City's
immediate assessment against the Property of the full amount of the City's estimated
expense for the City for each phase of the Development.
Option B. In lieu of Option A, the Developer shall provide to the City a cash
escrow in the form of a letter of credit for 125 percent (125%) of the amount of the City's
Improvements as reasonably estimated by the City for each phase of the Development.
Said letter of credit shall be effective until the City conducts an assessment hearing and
shall be released when the special assessments have been levied by the City against all of
the lots in the Property for any phase of the Development. Developer shall provide to the
City the letter of credit prior to the City's letting of the construction contract for the City
Improvements for each phase of the Development. The City agrees that if the Developer
sells lots prior to the levy of the assessments herein for any phase of the Development,
the City will reduce the amount of the Letter of Credit delivered by the Developer and
accept replacement security from the purchaser of said lots in a form of cash escrow or
replacement letter of credit.
III. PLAN PREPARATION. SUBMISSIONS AND APPROVALS
3.1 Developer Improvement Plan Approvals. The Developer or its consultant shall be
responsible for preparing the plans and specifications for the Developer Improvements including
bidding documentation, following a pre -design conference with the Developer and Developer's
engineer. The City Engineer's approval shall not be unreasonably withheld and shall be granted
if the plans and specifications are in conformance with the Development Plans applicable
thereto, the terms of this Agreement and the requirements of governmental authorities other than
the City that will issue permits or licenses for such improvements. Developer and the City
Engineer shall use their best efforts to resolve any differences they may have with respect to the
plans and specifications. If the City Engineer does not specifically approve, comment upon or
reject the plans and specifications within ten (10) Business Days of submittal of the same to the
City Engineer, then the plans and specifications shall be deemed approved.
3.2 City Improvement Plan Approvals. The City or its consultants shall prepare the
plans and specifications for the City Improvements in a timely fashion to ensure that the City
Improvements for each phase are constructed in a timely fashion as set forth in paragraph 2.3 of
this Agreement. The City shall consult with the Developer in connection with the plans and
specification sfor the City Improvements, but the City's design thereof shall be final.
IV. WARRANTIES
The Developer hereby makes and states the Developer Warranties. The City hereby
makes and states the City's Warranties.
4.1 Installation; Certification. Upon completion of construction of any category of
Developer Improvements, and correction of any defective work as provided herein, Developer
shall cause its engineer to inspect the same and to certify to the City and Developer that the same
have been finally completed in substantial accordance with the Development Plans therefor (the
"Certificate of Completion").
4.2 Acceptance of Developer Improvements. Upon receipt of the Certificate of
Completion of any category of Developer Improvements, the City's Authorized Representative
will, within ten (10) Business Days of receipt of the Certificate of Completion, inspect the
Developer Improvements to ensure that the Developer Improvements were constructed
substantially in accordance with the approved plans and specifications for the Developer
Improvements and shall either (i) certify to the City and the Developer that the same have been
substantially completed in accordance with the approved plans and specifications therefor, or (ii)
notify the City and the Developer in writing and in reasonable detail as to those components of
construction that have been substantially completed in accordance with the approved plans and
it
specifications therefor; in which event, the Developer shall proceed with reasonable diligence to
complete or correct the incomplete or defective components of construction, after which the
Developer shall request re -inspection and certification of completion in accordance with the
provisions of this Section. If the City's Authorized Representative does not, within such ten (10)
Business Day inspection period, either validate the accuracy of the Certificate of Completion or
provide notice of defective or incomplete components of construction as contemplated above, the
Developer Improvements shall be deemed to be completed in substantial accordance with the
approved plans and specifications therefor. Developer shall submit the Developer Improvements
for acceptance to the City for action, and the City shall, by formal motion, accept the Developer
Improvements so constructed and agree to assume all liability for maintenance of Developer
Improvements upon the expiration of the Developer Warranties.
V. FEES AND CHARGES
Provided the City complies with the terms of this Agreement, Developer shall pay:
a. Recordiny, Fees. All fees and charges in connection with recording this
Agreement and the Plat with the County.
b. Park Dedication. Developer shall pay a park dedication fee of $574,200
($3,300.00 per unit). In recognition of Developer's agreement to withhold
development of the Referendum Property as set forth herein, the City
agrees not to increase its park dedication fee in connection with the
development of the Project prior to June 30, 2009. In the event that the
City acquires the Referendum Property or no fewer than eight (8) of the
Referendum Lots in accordance with Article II of this Agreement, the Park
Dedication Fee shall be paid upon the closing of the City's purchase of the
Referendum Property. The Park Dedication Fee shall be reduced by
$3,300.00 for each Unit of the Referendum Property purchased by the
City.
In the event that the City does not exercise its rights to purchase the
Referendum Property (a) the Developer may, at its discretion (a) pay the
entire Park Dedication fee or (b) pay or cause to be paid the Park
Dedication Fee on a per unit basis of $3,300.00 at the time that a building
permit is sought and received for each individual Unit in the Project. The
Developer may, at its discretion, assign the Park Dedication Fee (at the
greater of $3,300.00 per unit or the then current park dedication fee) to
any purchaser or builder of an individual lot.
C. Other Fees. The Developer shall pay at the time of issuance of a building
permit for each individual lot all other customary, reasonable and lawful
fees required by Other Regulatory Agencies. The City shall not assess any
fees to the Project other than set forth herein. This limitation shall not
apply to City improvements not included in or contemplated in the
Development Plans.
VI. OTHER PERMITS; APPROVALS; CERTIFICATES OF OCCUPANCY
6.1 Other RejZulatoEy Agencies. The Developer shall apply for all permits, approvals
and licenses required from any Other Regulatory Agency as may be necessary for Developer's
construction of the Developer Improvements as herein contemplated, and Developer shall
construct the Developer Improvements in accordance with the requirements of all such permits,
approvals and licenses and the legal requirements thereof.
6.2 Initial Permits and Model Permits. Any provision of this Agreement that requires
the Developer Improvements to be completed prior to issuance of building permits for residential
units within the Project shall not apply to building permits for single-family model homes
(collectively, the "Models"), which may be issued prior to the completion of the City
Improvements.
6.3 Subsequent Building Permits. Other than building permits for the Models, no
building permits shall be issued for construction of a residence within the Subdivision until the
following conditions have been satisfied:
a. For each residential unit for which a building permit is requested
(including the models), the applicant shall pay a water connection fee and
a sanitary service connection fee in accordance with City Ordinances and
fee schedules then in effect.
b. The Final Plat (or a portion thereof if Developer elects to proceed in
phases as set forth below) and this Developer's Agreement must be
recorded with the County.
C. With respect to the lot for which a permit is requested, the drainage,
grading and erosion control plan for such lot must be submitted and
approved by the City Engineer.
d. All other building permit requirements of the City's Ordinances applicable
to residential structures have been complied with, provided that in the
event of any inconsistency between the terms of this Agreement and the
terms of such ordinances, the terms of this Agreement shall control the
building permit process for the Subdivision.
6.4 Certificates of Occupancy. Other than for the Models, no certificates of
occupancy shall be issued for buildings within the Development until utility and road
improvements to such buildings are substantially completed (as reasonably determined by the
City Engineer), provided, however, that the bituminous wear course for the roads within the
Development shall not be required to be installed until 75% of the residential lots in the
Development have homes constructed upon them (or earlier at the Developer's request), and
thereafter, as weather conditions permit.
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6.5 Design Review Board. The Developer acknowledges that the single family
homes must be approved by the City's Design Review Board. The City directs the Design
Review Board not to unreasonably withhold consent.
VII. CONSERVATION EASEMENT.
Upon development of any phase of the Development, Developer shall execute the
Conservation Easement in the form attached hereto as Exhibit K for the Property being
developed in that phase. The City and Developer shall take all reasonable actions necessary and
convenient to legally describe the Conservation Easement in a manner consistent with Exhibit K.
VIII. PLAT RECORDING
8.1 Plat Recording. All applicable conditions related to Plat approval must be met
prior to the recording of the Plat. The Plat must be recorded with the Ramsey County Recorder
and/or the County's Registrar of Titles, as the case may be, on or before the date that is one
hundred eighty (180) days after final plat approval has been granted by the City.
8.2 Conveyance of Lots. The Plat, and this Agreement must be recorded with the
Ramsey County Recorder and/or Registrar of Titles, as the case may be, prior to Developer's
transfer of fee title in any lot within the Plat.
8.3 Final Plat. City Staff is directed to take all necessary action to facilitate the
completion and recording of the Final Plat for the Project or any portion of the Project. The
Developer may record the Final Plat for all or a portion of the Project in accordance with the
estimated phasing schedule on Exhibit H.
IX BINDING EFFECT
This Agreement shall be deemed to be a restrictive covenant and the terms and conditions
hereof shall run with the land described herein and be binding on and inure to the benefit of the
heirs, representatives and assigns of the parties hereto, and shall be binding upon all future
owners of all or any part of the Property, and shall be deemed covenants running with the land,
provided however, that at Developer's request, after all of the Developer Improvements have
been accepted by the City and the warranty periods therefore have expired, the City shall issue a
Certificate of Completion, in recordable form, stating that the Developer Improvements have
been constructed and completed by Developer in accordance with the terms hereof and have
finally accepted by the City, and that Developer has performed and is released from all of its
obligations set forth herein, such that thereafter lots within the Plat shall only be subject to the
payment of special assessments as set forth in Section 2.5 hereof.
X. REMEDIES UPON DEVELOPER DEFAULT
Whenever any Developer Default occurs, the City, subject to any rights of third parties
agreed to by the City pursuant to this Agreement, or otherwise by written, executed instrument of
13
the City, may, upon thirty (30) days written notice and a reasonable opportunity for Developer to
cure said Default, take any one or more of the following:
a. The City may suspend its performance under this Agreement and the until
it receives assurances from Developer, deemed adequate by the City, that
Developer will cure its default and continue its performance under the
Agreement.
The City may initiate such action, including legal or administrative action,
whether in law or in equity, as is necessary for the City to secure
performance of any provision of this Agreement or recover any amounts
due under this Agreement from Developer.
C. The City may draw upon or bring action upon any or all of the Securities
provided to the City pursuant to any of the terms of this Agreement.
XI. INDEMNIFICATION
11.1 The Developer releases from and covenants and agrees that the City and its City
Council, officers, agents, including their independent contractors, consultants and legal counsel,
servants and employees (hereinafter, for purposes of this Section only, collectively the
"Indemnified Parties") shall not be liable for and agrees to indemnify and hold harmless the
Indemnified Parties against any loss or damage to property or any injury to or death of any
person resulting from any defect in the Subdivision, except for loss or damage to property or any
injury to or death of any person resulting from any defect in the Subdivision resulting from the
non-performance of any applicable agreement, negligence, any misrepresentation or any willful
or wanton misconduct of the Indemnified Parties.
11.2 Except for the negligence, any misrepresentation or any willful or wanton
misconduct of an Indemnified Party, the Developer agrees to protect and defend the Indemnified
Parties and further agrees to hold the aforesaid harmless from any claim, demand suit, action or
other proceeding whatsoever by any person or entity whatsoever resulting from the non-
performance of any applicable agreement, negligence, any misrepresentation or any willful or
wanton misconduct of the Developer, its employees, agents or contractors, provided that this
indemnification shall not apply to the warranties made or obligations undertaken by the City in
this Agreement.
11.3 The City and the Indemnified Parties shall not be liable for any damage or injury
to the persons or property of the Developer or officers, agents, servants, or employees or any
other person who may be about the Subdivision due to any act if negligence of any person,
unless due to the non-performance of any applicable agreement, negligence, any
misrepresentation or any willful or wanton misconduct of an Indemnified Party.
11.4 All covenants, stipulations, promises, agreements and obligations of the City
contained herein shall be deemed to be the covenants, stipulations, promises, agreements and
obligations of the City and not of any governing body member, officer, agent, servant or
14
employee of the City, which shall not be withheld if the Developer's proposed assignee to the
financial capability to perform the Developer's obligations is to be assumed by the proposed
assignee.
XII. ASSIGNMENT
The Developer may not assign this Development Contract without the written permission
of the City Council and without providing the City with written notice of the proposed
assignment at least 45 days in advance of the effective date of the assignment. If timely notice is
provided to the City, the City's permission will not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing, the consent of the City shall not be required in
connection with an assignment to an "Affiliate" in which the Affiliate assumes all obligations of
the Developer hereunder that accrue from and after the effective date of the assignment. As used
herein, the term "Affiliate" means an entity that is controlled by, or is under common control
with the Developer.
XIII. CHANGE OF ORDINANCES
The City finds that the approved development of the Plat according to the terms of this
Development Contract is a planned and staged development within the meaning of Minn. Stat.
§ 462.358, subd. 3(c). The City further finds that the actions of the Developer described herein,
are of substantial and enduring benefit to the quality of life, open space needs and financial needs
of the City. Accordingly, pursuant to Minn. Stat. § 462.358, subd. 3(c), the City agrees that if the
following condition is being met:
a. Developer is not in material default (and the time to cure has not expired)
under this Development Contract;
then for six (6) years after the date hereof, the City will not, without the prior written consent of the
Developer, for any particular phase or phases or the entire Project in which the Developer has such
an ownership interest, enforce or apply to this Development any change the City's Comprehensive
Plan (except as contemplated hereby or to permit the development of the Project as contemplated
hereby), or enforce or apply to this Development any change in ordinances establishing zoning,
subdivision controls, site plan regulations, official maps, and all policies and specifications adopted
by the City to implement the foregoing (all of which is hereinafter referred to as "Controls")(except
as contemplated hereby or unless such change is mandated by Minnesota Statutes and Minnesota
Rules that, by their terms, must be complied with notwithstanding any provision hereof to the
contrary), for any particular Phase or Phases or the entire Project in a manner which is inconsistent
with the terms of this Development Contract and the Plat and Development Plans approved herein
with respect to the following:
i. permitted, conditional, accessory uses;
ii. development density;
iii. lot size;
iv. lot layout, depth and width;
Iii
V. building setbacks and building height;
vi. street conveyance requirements;
vii. essential improvement requirements;
viii. the terms and conditions of park dedication and contribution
requirements thereof,
ix. subdivision requirements;
X. specifications for sewer, water, drainage, street, landscape, trees, and
other improvements to be constructed by the Developer or the City
and to be owned and maintained by the City or Developer thereafter.
Notwithstanding the restrictions above -stated, the Developer may request a modification to the
Controls for a specific Phase within the Project and the City may grant the modification. After the
last day of the sixth year after the date hereof, the City may, pursuant to law, without the consent of
the Developer, enforce or apply to this Development any modification of the City's Comprehensive
Plan or the City Code provisions affecting such Phase with respect to the above matters. Until such
time the City takes such action, the provisions of this section shall remain in full force and effect.
XIV. INCONSISTENCY AMONG CONTROLS
To the extent an inconsistency or conflict exists among the Controls, and in the absence
of a consensual amendment addressing the inconsistency, the following documents in descending
order shall govern:
a. the Resolutions;
b. this Development Contract;
b. the Plat;
C. the Project;
d. the Development Plans; and
e. the City Code.
XV. MISCELLANEOUS
15.1 No Third Party Recourse. Third parties shall have no recourse against the City or
the Developer under this Development Contract.
15.2 Validity. If any portion, section, subsection, sentence, clause, paragraph or phrase
of this Development Contract is for any reason held to be invalid, such decision shall not affect
the validity of the remaining portions of this Development Contract.
15.3 Federal Agencies. If the Developer requires any evidence of this Development
Contract for the purpose of escrow requirements of the Federal Housing Administration, the
Veterans Administration, or any other United States government agency, the City will provide
same at the request of the Developer so the escrow deposit, herein provided for, may be
considered a deposit in lieu of the deposit normally made with such governmental agencies to
guarantee the completion of required improvements.
15.4 Recording. The Development Contract and Plat shall be recorded by the
Developer with the County Recorder or Registrar and the Owner shall provide and execute any
and all documents necessary to implement the recording. The City shall receive two (2) copies
of the recorded Plat from Developer.
15.5 Binding_ Agreement. The parties mutually recognize and agree that all terms and
conditions of this recordable Development Contract shall run with the land herein described, and
shall be binding upon the heirs, successors, administrators and assigns of the Owner and
Developer.
15.6 Amendment and Waiver. The parties hereto may by mutual written agreement
amend this Development Contract in any respect. Any party hereto may extend the time for the
performance of any of the obligations of another, waive any inaccuracies in representations by
another contained in this Development Contract or in any document delivered pursuant hereto
which inaccuracies would otherwise constitute a breach of this Development Contract, waive
compliance by another with any of the covenants contained in this Development Contract, waive
performance of any obligations by the other or waive the fulfillment of any condition that is
precedent to the performance by the party so waiving of any of its obligations under this
Development Contract. Any agreement on the part of any party for such amendment, extension
or waiver must be in writing. No waiver of any of the provisions of this Development Contract
shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor
shall any waiver constitute a continuing waiver.
15.7 Governing Law. This Development Contract shall be governed by and construed
in accordance with the laws of the State of Minnesota.
15.8 Counterparts. This Development Contract may be executed in any number of
counterparts, each of which shall be deemed an original but all of which shall constitute one and
the same instrument.
15.9 Headings. The subject headings of the paragraphs and subparagraphs of this
Development Contract are included for purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions.
15.10 Access and Security. The Developer hereby grants to the City, its employees,
officers, and contractors a license to enter the Plat to perform all work and inspections deemed
appropriate by the City during the installation of Developer Improvements. The City agrees to
indemnify and hold Developer, Owner and the Property harmless from any and all claims, costs,
expenses or damages, including reasonable attorneys' fees resulting from such activities. This
license shall not extend to any third party. The Developer may take whatever reasonable
measures are necessary to secure the site or any portion thereof from trespass and intrusion
including, but not limited to, security fencing, security gates and private security services.
15.11 Notice. Any Notice required hereunder shall be as set forth in Section 1.20 of this
Agreement.
17
15.12 Change of Name of Plat. The Developer may change the name of the Plat,
provided that the change of the name of the Plat shall not constitute an amendment of the terms
of this Agreement and all terms of this Agreement remain in full force and effect.
15.13 Site Signage. Signage shall be allowed to the extent not prohibited by the City
Code.
15.14 Tax Payments. Within 60 days of the execution of this Agreement, Developer
shall cause all property tax obligations due and owing to be fully paid.
XVI. DEDICATION OF PUBLIC ROADS
16.5 All public roads in the Plat shall be dedicated to the City upon recording of the
Plat for any phase of the Development
XVII. DISMISSAL OF ACTION AND RELEASES
17.1 Dismissal of Action. Within one week of the City's authorization of the
execution of this Agreement, the Developer will execute a Stipulation of Dismissal with
Prejudice of an action entitled CoPar Development v. City of Maplewood, Ramsey County Court
File No. 62-C5-06-010746, which the City shall then countersign and file with the Court along
with a proposed order in the form attached hereto as Exhibit L.
17.2 Effective upon the execution of this Agreement, and except only for the
representations and obligations of the parties under this Agreement and the Resolutions,
Developer and any and all of its partners, members, employees, agents, representatives,
successors, assignees, transferees, joint ventures, attorneys, and insurers, hereby release and
discharge the City and its past and present agents, officials, employees, representatives,
assignees, transferees, joint ventures, attorneys, insurers, and risk pools (including the League of
Minnesota Cities Insurance Trust) from all manner of claims, demands, actions, causes of
actions, suits, debts, dues, sums of money, accounts, bills, covenants, contracts, rights,
obligations, controversies, agreements, promises, and demands whatsoever, whether in law or
equity, the Developer ever had, or now has, whether known or unknown, against the City,
involving or arising out of any application for development it has filed with the City regarding
the Property or any part thereof.
17.3 Effective upon the execution of this Agreement, and except only for the
representations and obligations of the parties under this Agreement and the Resolutions, the City,
and any and all of its past and present officers, elected officials, employees, agents,
representatives, affiliates, divisions, successors, assignees, transferees, joint ventures, attorneys,
insurers, and risk pools hereby release and discharge the Developer and its shareholders,
partners, employees, agents, representatives, successors, assignees, transferees, joint ventures,
attorneys, and insurers, from all manner of claims, demands, actions, causes of actions, suit,
debts, dues, sums of money, accounts, bills, covenants, contracts, rights, obligations,
controversies, agreements, promises, and demands whatsoever, whether in law or equity, the
City ever had, or now has, or hereafter may have, whether known or unknown, against the
Plaintiff involving or arising out of any application for development Developer has filed with the
City regarding the Property or any part thereof.
IN WITNESS WHEREOF, the City and Developer have caused this Agreement to be
duly executed on the day and year first above written.
CITY OF MAPLEWOOD:
By:
Mayor
By:
City Clerk
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 200_, before me, a Notary Public, in
and for said County and State, appeared and to me personally known,
who being by me first duly sworn, did say that they are respectively the Mayor and the City
Clerk of the City of and said and acknowledge said instrument to
be the free act and deed of said City of by resolution adopted by its Council.
Notary Public
COPAR DEVELOPMENT, LLC
an
M,
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 200, before me, a Notary Public,
personally appeared the of Corporation, a Minnesota
corporation, who executed the foregoing instrument and acknowledged said instrument to be the
official act and deed of said corporation and that such act was authorized by the board of
directors of said corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
MALKERSON GILLILAND MARTIN LLP
(HAR)
1900 U.S. Bank Plaza South Tower
220 South Sixth Street
Minneapolis, MN 55402
0411
STATE OF MINNESOTA
COUNTY OF RAMSEY
CoPar Development,
V.
City of Maplewood
EXHIBIT L
Plaintiff,
Defendant.
DISTRICT COURT
SECOND JUDICIAL DISTRICT
Case Type: Civil
Case No. 62-C5-06-010746
STIPULATION OF DISMISSAL WITH
PREJUDICE AND ORDER
The parties, through their counsel, hereby agree that this matter shall be dismissed with
prejudice, with all parties to bear their costs.
Dated: , 2008
Dated:
GREENE ESPEL, P.L.L.P.
By
John M. Baker, Reg. No. 174403
200 S. Sixth Street, Suite 1200
Minneapolis, MN 55402
(612)373-0830
Attorneys for Defendant
2008 MALKERSON GILLILAND MARTIN
L.L.P.
By
Howard A. Roston, Reg. No. 260460
220 S. Sixth Street, Suite 1900
Minneapolis, MN 55402
Attorneys for Plaintiff
SO ORDERED.
Dated: .2008
Judge of the District Court