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ITEM 3.5 Arbor Creek 3rdRequest�^~/. U��r City '�����U����U�^��U���. �"`=~ »��~=,°" -~°U8 �~�v�.���" . 0 � �-��MINNESOTA g DEPARTMENT INFORMATION MEETING DATE: ORIGINATING DEPARTMENT: REQUESTOR* Planning City Planner Licht 26 August 2013 City Attorney MacArthur pnsacwren(s)' Consent AGENDA ITEM DETAILS REVIEWED BY: City Administrator Johnson 3.5 — Arbor Creek 3rd City staff recommends approvalofanagreement with Centra Homes regarding the securities for phased construction ofArbor Creek 3rdeastof Madver Avenue. ARE YOU SEEKING APPROVAL oF AnowrnAor, | 13 A PUBLIC HEARING REQUIRED? Centra Homes has an entered into an agreement with Emmerich Development to purchase the 151 lots |nArbor Creek 3mAddition east ofPNac\verAvenue. Emmerich Development, the original developer of Arbor Creek, received City Council approval of the Arbor Creek 3 rd Addition Final Plat on 10 January 2005 and started constructionofimpmvements. However, construction was halted asthe effects ofthe recession were beginning to slow demand for additional lots. The public improvements within the portion ofArbor Creek 3'd Addition west of MacIver Avenue were completed (and all but two lots now built upon) but the area east of Madver Avenue was left partially graded with some water and sewer pipes installed inopen trenches. Thedeve lopment ag ree me nt forArborCree k 3'd req ui res EmmerichOeve lo pme nt to provideaecu rity to ensure the completion of the public improvements within the final plat, including streets, sewer,, water and storm sewer, initially estimated as$I,8OO,000for the entire plat. Emmerich Development had posted aLetter ofCredit tnmeet the security obligations forArborCreek3mAdd(t|onbuttheissuing bank failed and the City received a letter from the FDlC stating that the Letter of Credit would not be honored orrenewed. Emmerich Development was unable toobtain a replacement Letter of Credit due tothe banking crisis and recession, but the City does hold acash escrow of $250,244.49. Should the City have neededLoacttocomp|ete the pubUcimprovomentseast ofMao\verAve nue,|tvvouIdhave utU1zed the cash escrow and assessed any cost incurred over that amount to the individual lots. With Centra Homes acquiring the subdivision east of MacIver Avenue, their intent is to complete the public improvements and undertake construction of single family homes in phases of 20 to 30 lots, with the first phase being 26 lots accessed from K4ac|ver/4/enue at 78th Street. City staff has drafted an addendum to the development agreement whereby Centra Homes acknowledges that the City will not issue building permits tolots without access topublic improvements that will berecorded with these lots of record. This agreement requires Centra Homes to maintain $2O/0]O in escrow with the City for the purposes ofenforcing the agreement should the need arise. The draft agreement further provides that separate agreements will be entered into for each phase of construction requiring Centra Homes to provide additional securities for the improvements being installed within each specific phase to provide for oversight and ensure completion. Upon approval of the draft agreement by the City Council and execution by Centra Homes, the cash escrow the City 1sholding fromEmmerich Development would bereleased. This approach will allow Centra Homes to limit the security required to the amount needed only those areas of Arbor Creek 3 m east of Madver Avenue being completed while allowing the City protection against a request to issue building permits for the existing final platted lots remaining without adjacent streets or utilities completed. SUPPORTING DOCUMENTS: oATn~oHso oNONE A. Site Location B Draft Agreement POSSIBLE MOTION Please word motion as you wo7ii I ike it to appe'll in the m1nutes. Motion to approve an addendum to the Development Agreement for Arbor Creek rd Addition as BUDGET INFORMATION ACTION TAKEN oAPPROVED ASREQUESTED ooew|Eo olABLso oOTHER (List changes) ooMwswTm Arbor Creek 3rd Addition Date Created: 8/16/201 Overview N-:, r41 • #' `w�. n d ! I!9 x d_ 6 -Legend ii W ... e +Roads _ 1 .. .. — CAHCL t---- CCL .: MUNICL PRIVATECL '�"� �`� '� rtH � ; TFC T'PL .4a City/Township Linlits -j VAN 91M �, ° Parcels - �INE MR. i A NE 00 M% V, $° - ' a ; -STIOWN IFMLr ' - L-A' g ,1 4f, Lu AM" LIJ AR -JUX XiL� LSI ' INuj 17- z EF Lb 10 r F � LZ 61 1 ■+i � a� 1.16"o r } � i1''s'���� t f # � .� NI?k�ng n .. Mal C. y -.'iia ' FVdSk 6>1 T r V ip R - _ 1 f If:I R 1V 1:; -R i 1 -1 +k.. * r� r+ + LI ��� ill/ jJ/j\J y��■■ r. __.. ��, ....� .ti � � ■ ! ! ■ x �!`. .. _ -. " � •--rte. _ - � } y J ~ CITY OF OTO COUNTY OF WRIGHT STATE OF MINNESOTA ADDENDUM TO DEVELOPERS AG'REEMENT- AR OR CREEK THIIW ADDITION AGREEMENT entered into this —day of Atipst, 2013 bctlxecii the City of Otsego (CITY), a municipal corporation Under the laws of the State of Minnesota and Centra Homes, Inc. (DEVELOPER), a corporation under the laws of the State of Minnesota. This Agreement affects that property located in the City of Otsego, Wright County, Minnesota identified as: AlW OR CREEK TTI RD ADDITION as on fi I e and recorded at the Offil c e or the County Recorder, Wright Cowity, Minnesota. WHEREAS, DEVELOPER has purchased platted land identified as a portion of A"OR CF, -EEK TUTIRD ADDITION within the City of Otsego, Wright Cotinty, T\4innesota consisting of 15 1 lots (said lots set forth on the attached Exhibit A) zoned for residential pia -poses; and WHEREAS, in relation to said Plat DEVELOPER's predecessor and CITY have entered ijito that certain Developers Agreement recorded against the property on June 30, 2005 as Doctiment No. A 965619 at the Office of the County Recorder of Wright County, Mim-lesota, which remains in force and effect and which duties and obligations are asstinied by DEVELOPER; and WHEREAS, said Developers Agreement requires that DEVELOPER maintain security in the form of an Irrevocable Standby Letter of Credit to insure that all public iniprovenients required by CITY are constructed and warranted to City specifications; and WHEREAS, the current requirement is that DEVELOPER leas in place a Letter of Credit in ffie amount of $1,900,000.00 to cover costs of public improvements needed to complete the development; and WHEREAS,, DEVELOPER s predecessor had obtained such a Letter of Credit from N/lainstreet Bank; and WHERE AS, Maitistreet an has been taken over and placed into receivers1iij) by the FDIC; and WHEItEl AS, the FDIC has indicated that it will no longer honor the obligations to CITY as set forth in the original Letter of Credit and 'WHEREAS, CITY has notified DEVELOPER" s predecessor that they must obtain and post a substitute Letter of Credit in order to remain in compliance with the Developers Agreement; and WHERE AS,DEVELOPER's predecessor has been unable to obtain a substitute Letter of Credit in the amount required by the Developers Agreement; and WHERE, AS, DEVELOPER has purchased the property with knowledge that seCUrity will leave to be provided for public improvements prior to the City issuing building permits for any lot within the Plat; and WHEREAS, DEVELOPER and CITY have entered it -it o this Agreenient in order to memorialize the process for posting of security for CITY costs and to hisure construction of public improvements. NOW THEREFORE IT IS AGREED D between the p antics as fo I I o ws: 1. DEVELOPER acknowledges and agrees that the CITY will issue no btiilding perniits within AIMOR CREEK TI -IIID ADDITION east of MacIver Avenue where all needed public improvements have not been completed (See Exhibit B attached), until such time as all required public improvements have been installed by the DEVELOPER and approved by the City Engineer. DEVELOPER may obtain building permits for certain Phases of the PrOJ'CCt Upon execution of a separate Developers Agreement for the developnient of these lots or phases of these lots, postfiig of all security and cscrow required by that Agrcenient and conipleting all public improvements within the Project oil that Phase as set forth in the Developers Agreement, and Nvhen approved by the City Engineer. 2. DEVELOPER shall notify any person or entity seeking to buy the lots or a lot within ARBOR CREEK THIRD ADDITION cast of MacIver Avenuc of the fact 2 that no building permits will be issued on the above described platted lots withill the subdivision until such time as all public. iiiiprovenients, have been installed by the DEVELOPER and approved by the City Engineer, or until such tilde as a Phase Developers Agreement has been executed, all sceurity and escrow posted and the public improvements for that please leave been completed to the satisfaction of the City Engineer. 3. DEVELOPER shall provide and inaintain as security to insure warranty of and proper installation and testing or those public iniprovenlents already installed within ARBOR CREEKTHIRD ADDITION east of MacIver Avenue as well as to provide interiiii security for the undeveloped portions of the developill.elit, to insure that no construction activity occurs, and to cover any costs incurred by CITY in monitoring and/or enforcing this Agreenient or the original Developers Agreenient. The amount of this security or escrow shall be $ 20,000.00 Said escrow to be retained, subject to any draws by the C14"Y for costs incurred, until such time as other acceptable security is supplied to insure construction of required public improvements, or until such time as all public iniprovenlents within the portion of ARBOR CREEK THIRD ADDITION purchased by the DEVELOPER have been constructed acid approved by the City Engineer. 'The posted security or escrow shall utilized by CITY, at is sole discretion to reimburse itself for any costs related to the Administration, processing or enforcenietit of this Agreement or the original Developer's Agreenient including, but not linlited to costs of administration, Planner's fees, Engineering fees and attorney's fees. In the event that the security or escrow posted is depleted or about to be depleted, CITY shall notify DEVELOPER acid. DEVELOPER shall ininiediately post additional security or escrow in an amount deterinined by CITY. 4. At such time that security and/or escrow funds acceptable to the CITY is provided as set forth above, the CITY will release to DEVELOPER's predecessor escrow aniounts currently held by the CITY, minus any CITY costs incurred. 5. Prior to the time when DEVELOPER commences construction of public iniproveiiients within the defined areas of ARBOR CREEK THIRD ADDITION east of MacIver Avenue requiring additional iniprovements, DEVELOPER shall coniply with the terms and condition s of the original Developers Agreement and shall post additional security in the form of both an Irrevocable Standby Letter of Credit with autoiiiatic renewal provisions as set forth in the Phase Developiiient Agreement, in an amount deterniiiied by the City Engineer to assure completion and warranty of the proposed work as Nvell as cash escrow to secure paynient of ongoing engiiieering and other costs incurred by the City as well as for paynient of any required City fees applicable at that time, or other sceurity arrangements that may be approved by CITY at its sole discretion. 6. Except for this niodification, all other terms. and conditions as set forth ill the original Developers Agreenient between DEVELOPER's predecessor and CITY shall remain in full force and effect and shall be binding upon DEVELOPER. 3 7. The above is a full recitation of the Agreemeiit between the parties which supereedcs any previous agreement between the parties (except for the original Developers Agreement) whether oral orwritten. 8. 'mis Agreement shall run with the land and shall be recorded against the property and is binding inion DEVELOPER and its heirs, assigns or successors in title. DEVELOPER CENTRA HOMES, INC. By: Its CITY OF OTSO Jessica Stockaml), Mayor Tami Loff, City Clerk COUNTY OF WRIGHT ) ) SS STATE OF MINNESOTA) Subscribed and sworn before me this day of ALIgttSt, 2013 by the of CENTRA I-10ME, INC. on belialf of the corporation and with authority. 4 NOTARY PUBLIC COUNTY OF WIII-IT ) )SS STA"I"'13 OF MINNESOTA.} Subscribed and sworn berore me this day of August, 2013 by Jessica Stockamp, Mayor and Tami Doff , City Clerk on behalf of the City of Otsego and with authority. NOTARY PUBLIC DRAFTED BY: MACARTHUR LAW OFFICE, LLC 3601 Thurston Avenue North Suite 103 Anoka, MN 55303 763-231-5850 5 nPTIMAL PLAT ARBOR CREEK 3RD ADDITION KhbW Al L &Y THIL$rz PlIESENTS, Trial GhW, 11I.C., & Mrsgicgva I nil -ed r-StWlf ronpsnv 1,*t ChAlIff and V. a PA I U( *III an k , a 101-111111 o I P to FJ50 I air* P.M. i# fig AV or. 0 1 the 121';1a Ing duscf.:i L il p I a prT ?I 1-1,13106 -p% 1',c C Dub I 131 ve 1qhl. Slate at Mthmv gplp . jo *11: 0 u i: o t j D 49 E. 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