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RES 2022-43 Approving a Development Contract for Riverbend North 2nd AddnCITY OF OTSEGO COUNTY OF WRIGHT STATE OF MINNESOTA RESOLUTION NO: 2022-43 APPROVING A DEVELOPMENT CONTRACT FOR RIVERBEND NORTH SECOND ADDITION WHEREAS, Otsego Apartments II, LLC (the "developer") is proposing platting of the Riverbend North Second Addition final plat; and WHEREAS, a final plat was approved by the City Council on 24 January 2022; and WHEREAS, Section 10-10-4.A of the Subdivision Ordinance requires the developer to enter into a development contract to provide the City construction and warranty securities for the public and private improvements and to provide the City various remedies in the event that the developer breaches the terms and conditions of said contract; and WHEREAS, those obligations are outlined and memorialized in the attached Development Contract. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OTSEGO, MINNESOTA THAT: 1. The Development Contract attached hereto between the City of Otsego and Otsego Apartments II, LLC is hereby approved in form subject to modification of fees, charges, and securities as approved by City staff. 2. The Mayor and City Clerk are hereby authorized to execute the Development Contract on behalf of the City of Otsego. 1 ADOPTED by the City Council of the City of Otsego this Sit n day of May, 2022. MOTION BY: Dahl SECONDED BY: Stockamp INFAVOR: Stockamp, Dahl, Goede, and Moores OPPOSED: none Abstained: Darkenwald CITY OF OTSEGO Jessica L. Stockamp, M ATTEST: City Clerk 2 (renewed for recording infornzallon) DEVELOPMENT CONTRACT (Developer Installed Improvements) RI VERBEND NOR TH SECOND ADDITION CONTRACT dated 2022, by and between the CITY OF OTSEGO, a Minnesota municipal corporation ("City"), and OTSEGO APARTMENTS II, LLC, a Minnesota limited liability company (the "Developer"). 1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a plat for RIVERBEND NORTH SECOND ADDITION (referred to in this Contract as the "plat"). The land is situated in the County of Wright, State of Minnesota, and is legally described as: Lot 1, Block 1, Riverbend North Addition, Wright County, Minnesota, according to the recorded plat thereof ("Original Lot"). 2. CONDITIONS OF PLAT APPROVAL. The City hereby approves the plat on condition that the Developer enter into this Contract, furnish the security required by it, and record the plat with the County Recorder or Registrar of Titles within 100 days after the City Council approves the final plat. The plat further subdivides the Original Lot into two parcels to be known as Lot 1, Block 1, Riverbend North Second Addition ("Phase 1 Lot") and Lot 2, Block 1, Riverbend North Second Addition ("Phase 2 Lot"). The Phase I Lot has been improved with 97-Unit apartment building according to the terms and conditions of 1 219911v9 Riverbend North Second Addition Development Agreement Riverbend North Addition (the "Phase I Development Agreement") dated January 28, 2019 recorded February 6, 2019 as Document No. A1389279 by and between Otsego Apartments, LLC ("OA"), Otsego Mini Storage, LLC ("OMS"), and the City. The City approved development of the Original Lot as a planned unit development according to the Phase I Development Agreement. Developer intends to construct on the Phase 2 Lot what is described as Phase 2 in the Phase I Development Agreement. This Agreement shall only encumber the Phase 2 Lot. 3. RIGHT TO PROCEED. Within the plat or land to be platted, the Developer may not grade or otherwise disturb the earth or remove trees, unless a grading permit has been approved by the City Engineer following approval of a preliminary plat by the City Council, construct sewer lines, water lines, streets, utilities, public or private improvements, or any buildings until all the following conditions have been satisfied: 1) this contract has been fully executed by both parties and filed with the City Clerk, 2) the necessary security has been received by the City, 3) the necessary insurance for the Developer and its construction contractors has been received by the City, and 4) the plat has been filed with the Wright County Recorder or Registrar of Titles' office. 4. PHASED DEVELOPMENT. The City acknowledges that OA and OMS have completed the Phase I Improvements under the Phase 1 Development Agreement and this Agreement controls the development of the Phase 2 Lot and any subsequent subdivisions or phases thereof. The Developer shall install all listed improvements for Phase 2 by June 30, 2023, provided that the deadline shall be extended for each day of Unavoidable Delay. For purposes of this Section, "Unavoidable Delays" means delays, outside the control of the party claiming its occurrence, which are the direct result of strikes, other labor troubles, unusually severe or prolonged bad weather, acts of God, fire or other casualty to the Project, delays in delivery of materials for the construction of the Project, the soil conditions of the Development Property, litigation commenced by third parties which, by injunction or other similar judicial action or by the exercise of reasonable discretion, directly results in delays, or acts of any federal, state or local governmental unit (other than the City) which directly result in delays. 2 219911v9 Riverbend North Second Addition The City may refuse to approve final plats of subsequent phases if the Developer has breached this Contract and the breach has not been remedied. Development of any subsequent phases may not proceed until Development Contracts for such phases are approved by the City. Park dedication charges referred to in this Contract are not being imposed on outlots, if any, in the plat that are designated in an approved preliminary plat for future subdivision into lots and blocks. Such charges will be calculated and imposed when the outlots are final platted into lots and blocks. 5. PRELIMINARY PLAT STATUS. If the plat is a phase of amulti-phased preliminary plat, the preliminary plat approval for all phases not final platted shall lapse and be void unless final platted into lots and blocks and outlots, within two (2) years after preliminary plat approval. 6. CHANGES IN OFFICIAL CONTROLS. For five (5) years from the date of this Contract, no amendments to the City's Comprehensive Plan or official controls shall apply to or affect the use, development density, lot size, lot layout or dedications of the approved plat unless required by state or federal law or agreed to in writing by the City and the Developer. Thereafter, notwithstanding anything in this Contract to the contrary, to the full extent permitted by state law, the City may require compliance with any amendments to the City's Comprehensive Plan, official controls, platting or dedication requirements enacted after the date of this Contract. 7. DEVELOPMENT PLANS. The Phase 2 Lot of the plat shall be developed in accordance with the following plans by the Developer. The plans shall not be attached to this Contract. The plans may be prepared, subject to the City Engineer's approval, after entering the Contract, but before commencement of any work in the plat. The City Engineer may approve minor amendments to Plans without City Council approval. If the plans vary from the written terms of this Contract, the written terms shall control. The plans are: Plan A —Plat Plan B —Phase 2 of the Development Plans described in the Phase I Development Agreement Plan C -Final Grading, Drainage, and Erosion Control Plan 219911v9 Riverbend North Second Addition Plan D - Landscape Plan 8. IMPROVEMENTS. The Developer shall install and pay for the following on the Phase II Lot, to the extent not previously installed and paid for under the Phase I Development Agreement: A. Sanitary Sewer System B. Water System C. Storm Sewer System D. Streets E. Concrete Curb and Gutter F. Street Lights G. Site Grading, Stormwater Treatment/Infiltration Basins, and Erosion Control H. Underground Utilities I. Setting of Iron Monuments J. Surveying and Staking K. Sidewalks and Trails L. Retaining Walls M. Landscaping The improvements, if any, shall be installed in accordance with the City subdivision ordinance; City standard specifications for utility and street construction; and any other ordinances including Chapter 6 of the City Code concerning erosion and sediment control. To the extent not already installed under the Phase I Development Agreement, the Developer shall submit plans and specifications which have been prepared by a competent Minnesota registered professional engineer to the City for approval by the City Engineer. If applicable, the Developer shall instruct its engineer to provide adequate field inspection personnel to assure an acceptable level of quality control to the extent that the Developer's engineer will be able to certify that the construction work meets the approved City standards as a condition of City acceptance. In addition, the City may, at the City's discretion and at the Developer's expense, have one or more City inspectors and a soil engineer inspect the work on a full or part-time basis. The Developer, its 4 219911v9 Riverbend North Second Addition contractors and subcontractors, shall follow all instructions received from the City's inspectors. The Developer's engineer shall provide for on -site project management. The Developer's engineer is responsible for design changes and contract administration between the Developer and the Developer's contractor. The Developer or its engineer shall schedule apre-construction meeting at a mutually agreeable time at the City with Faconcerned, including the City staff, to review the program for the construction work. Within thirty (30) days after the completion of the improvements and before the security is released, the Developer shall supply the City with a complete set of reproducible "as -constructed" plans and an electronic file of the "as -constructed" plans in an AutoCAD .DWG file or a .DXF file, all prepared in accordance with City standards. In accordance with Minnesota Statutes 505.021, the final placement of iron monuments for all lot corners must be completed before the applicable security is released. The Developer's surveyor shall also submit a written notice to the City certifying that the monuments have been installed following site grading, utility and street construction. 9. CONTRACTORS/SUBCONTRACTORS. City Council members, City employees, and City Planning Commission members, and corporations, partnerships, and other entities in which such individuals have greater than a 25% ownership interest or in which they are an officer or director may not act as contractors or subcontractors for the public improvements, if any, identified in Paragraph 8 above. 10. PERMITS. The Developer shall obtain or require its contractors and subcontractors to obtain all necessary permits, which may include: A. Wright County for County Road Access and Work in County Rights -of -Way B. MnDot for State Highway Access C. MnDot for Work in Right -of -Way D. Minnesota Department of Health for Watermains E. MPCA NPDES Permit for Construction Activity F. MPCA for Sanitary Sewer and Hazardous Material Removal and Disposal G. DNR for Dewatering H. City of Otsego for Building Permits, Retaining Walls, Irrigation I. MDH for water permits J. MPCA for sewer extension 5 219911v9 Riverbend North Second Addition 11. DEWATERING. Due to the variable nature of groundwater levels and stormwater flows, it will be the Developer's and the Developer's contractors and subcontractors responsibility to satisfy themselves with regard to the elevation of groundwater in the area and the level of effort needed to perform dewatering and storm flow routing operations. All dewatering shall be in accordance with all applicable county, state, and federal rules and regulations. DNR regulations regarding appropriations permits shall also be strictly followed. 12. TIME OF PERFORMANCE. The Developer shall install all required public improvements by June 30, 2023. 13. LICENSE. The Developer hereby grants the City, its agents, employees, officers and contractors a license to enter the plat to perform all work and inspections deemed appropriate by the City in conjunction with plat development on the Phase 2 Lot. 14. EROSION CONTROL. Prior to initiating site grading, the erosion control plan, Plan B, shall be implemented by the Developer and inspected and approved by the City. The City may impose additional erosion control requirements if they would be beneficial. All areas disturbed by the grading operations shall be stabilized per the MPCA stormwater Permit for Construction Activity. Seed shall be in accordance with the City's current seeding specification which may include temporary seed to provide ground cover as rapidly as possible. All seeded areas shall be fertilized, mulched, and disc anchored as necessary for seed retention. The parties recognize that time is of the essence in controlling erosion. If the Developer does not comply with the MPCA stormwater Permit for Construction Activity or with the erosion control plan and schedule or supplementary instructions received from the City, the City may take such action as it deems appropriate to control erosion. The City will endeavor to notify the Developer in advance of any proposed action, but failure of the City to do so will not affect the Developer's and City 's rights or obligations hereunder. If the Developer does not reimburse the City for any cost the City incurred for such work within ten (10) days, the City may draw down the letter of credit to pay any costs. No development, 6 219911v9 Riverbend North Second Addition utility or street construction on the Phase 2 Lot will be allowed and no building permits will be issued unless the plat is in full compliance with the approved erosion control plan. 15. GRADING. The Phase 2 Lot shall be graded in accordance with the approved grading development and erosion control plan, Plan "B". The plan shall conform to City of Otsego specifications. Within thirty (30) days after completion of the grading and before the City approves individual building permits (except three (3) model home permits on lots acceptable to the Building Official), the Developer shall provide the City with an "as -constructed" grading plan for the Phase 2 Lot, if applicable, certified by a registered land surveyor or engineer that all storm water treatment/infiltration basins and swales, have been constructed on public easements or land owned by the City. The "as -constructed" plan, if applicable, shall include field verified elevations of the following: a) cross sections of storm water treatment/infiltration basins; b) location and elevations along all swales, wetlands, wetland mitigation areas if any, locations and dimensions of borrow areas/stockpiles, and installed "conservation area" posts; and c) lot corner elevations and house pads, and all other items listed in City Code. The City will withhold issuance of building permits until the approved certified grading plan is on file with the City and all erosion control measures are in place as determined by the City Engineer. Before a building permit is issued, a cash escrow shall be furnished to the City in accordance with the City's current fee schedule to guarantee compliance with the erosion control and grading requirements and the submittal of an as -built certificate of survey. If the final grading, erosion control and as -built survey is not timely completed, the City may enter the Phase 2 Lot, perform the work, and apply the cash escrow toward the cost. Upon satisfactory completion of the grading, erosion control and as - built survey, the escrow funds, without interest, less any draw made by the City, shall be returned to the person who deposited the funds with the City. A certified as -built building pad survey must be submitted and approved for commercial, industrial or institutional developments prior to issuance of a building permit. 16. CLEAN UP, The Developer shall clean dirt and debris from streets that has resulted from construction work by the Developer, home builders, subcontractors, their agents or assigns. Prior to any 7 219911v9 Riverbend North Second Addition construction in the plat, the Developer shall identify in writing a responsible party and schedule for erosion control, street cleaning, and street sweeping. 17. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction required by this Contract and final acceptance by the City, the improvements lying within public easements shall become City property without further notice or action. 18. LATERAL AND TRUNK SANITARY SEWER. The Developer shall pay to the City the required water availability charges and sanitary sewer availability charges. The water and sewer availability charges shall be collected according to Section 8-1-6-B of City Code including 9.0 RECs per gross acre for multiple family uses and 3.5 RECs per gross acre for commercial, industrial, or institutional uses. The Developer shall pay a cash fee in the amount of $81,270.45 for the Sewer Availability Charge ("SAC") at the time a building permit is issued which is calculated as follows: 9.Odu/ac. X 3.13ac. X $2,885.00 = $81,270.45 19. TRUNK WATERMAIN. The Developer shall pay a cash fee in the amount of $56,734.38 for the Water Availability Charge ("WAC") at the time a building permit is issued which is calculated as follows: 9.Odu/ac. X 3.13ac. X $2,014.00 = $56,734.38 20. SEWER CONNECTION CHARGE AND WATER CONNECTION CHARGE. The Developer shall pay to the City required water and sewer connection charges. The water and sewer connection charges shall be collected per Section 8-1-6-C of City Code for all uses and must be paid prior to the issuance of a Certificate of Occupancy based on the fee schedule in effect at the time of application for the Certificate of Occupancy. 21. CONSTRUCTION ACCESS. Construction traffic access and egress for grading, public utility construction, and public street construction is restricted to access the Phase 2 Lot as approved by the City Engineer. 0 219911v9 Riverbend North Second Addition 22. PARK DEDICATION. The Developer shall pay a cash contribution of $271,819,00 in satisfaction of the City's park dedication requirements for the Phase 2 Lot. The charge is calculated as follows: 67 units X $4,057.00 per unit = $271,819.00 23. LANDSCAPING. Before a building permit is issued for Phase 2, a cash escrow for the Phase 2 Lot shall be furnished to the City in accordance with the City's current fee schedule to guarantee compliance with the approved landscaping plan requirements. If the landscaping is not completed in a timely manner, the City may enter the lot, perform the work, and apply the cash escrow toward the cost. Upon satisfactory completion of the landscaping the escrow funds, without interest, less any draw made by the City, shall be returned to the person who deposited the funds with the City. All trees shall be warranted to be alive, of good quality, and disease free for twelve (12) months after planting. Any replacements shall be warranted for twelve (12) months from the time of planting. The Developer or property owner is responsible for contacting the City when all the landscaping has been installed to set up an inspection. Fifty percent (50%) of the security will be released when all the landscaping has been installed and inspected by City staff and the remaining fifty percent (50%) will be released one year after the landscaping inspection and any warranty work has been completed. 24. SPECIAL PROVISIONS. The following special provisions shall apply to development on the Phase 2 Lot: A. Implementation of the conditions relating to Phase II that are listed in the Findings of Fact approved by the City Council on January 24, 2022, and not previously satisfied within the Phase I Improvements. B. The plans, standards, and conditions approved with the Riverbend North PUD Development Stage Plan on July 23, 2018 shall remain in full force and effect except as modified specifically herein. C. All grading, drainage, and erosion control plans shall be subject to review and approval of the City Engineer. 9 219911v9 Riverbend North Second Addition D. All easements for Phase 11 are subject to review and approval of the City Engineer. E. All building plans related to common wall construction between Phase I and Phase II shall be subject to review and approval of the Building Official. F. The Developer shall pay utility availability charges deferred for Riverbend North Second Addition, prior to issuance of a building permit for Phase II based on the Fee Schedule in effect at the time of payment. G. The Developer shall pay utility connection charges for Riverbend North Second Addition at the time a building permit for Phase II is issued based on the Fee Schedule in effect at the time of final plat approval. H. The Developer shall satisfy the deferred park dedication fee in lieu of land with a cash payment in the amount of $271,819.00. I. The Developer and OA shall execute and record an agreement addressing shared responsibilities for the ownership and maintenance of Phases 1 and 2 of the Riverbend North Planned Unit Development District, subject to review and approval of the City Attorney. J. The final plat shall be recorded within 100 days of City Council approval. K. Prior to City Council issuance of a building permit, the Developer shall furnish a boundary survey of the Phase 2 Lot to be platted with all property corner monumentation in place and marked with lath and a flag. Any encroachments on or adjacent to the Phase 2 Lot shall be noted on the survey. The Developer's land surveyor certifies that all irons have been set following site grading and utility and street construction. In addition, the certificate of survey must also include a certification that all irons for a specific lot have either been found or set prior to the issuance of a building permit for that lot. L. The Developer shall provide for the preparation of record construction drawings and City base map updating by the City Engineer. This fee is $100.00 per acre for a total charge of $313.00, calculated as follows: 3.13 Acres X $100.00 = $313.00 219911v9 to Riverbend North Second Addition M. The Developer is required to submit the final plat in electronic format. The electronic format shall be either AutoCAD.DWG file or a .DXF file. All construction record drawings (e.g., grading, utilities, streets) shall be in electronic format in accordance with standard City specifications. N. The Developer is required to submit the final plat in electronic format. The electronic format shall be either AutoCAD.DWG file or a .DXF file. All construction record drawings (e.g., grading, utilities, streets) shall be in electronic format in accordance with standard City specifications. O. The Developer shall install street lighting, to the extent not installed as part of the Phase I Improvements, within the final plat in accordance with Title 8, Chapter 8, of the City Code with payment of charges as established in accordance with the City Fee Schedule, subject to review and approval of the City Engineer. 25. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash requirements under this Contract which must be furnished to the City prior to issuance of a building permit: A. Trunk Sewer Availability Charge (SAC) B. TOTAL CASH REQUIREMENTS ESCROW A. City Legal Expenses (Minimum $1,500.00) B. City Construction Observation (Minimum $10,000.00) C. GIS Data Entry ESCROW TOTAL 26. RESPONSIBILITY FOR COSTS. $81270.45 271,819.00 $4091823.83 $1,500.00 10,000.00 313.00 $11,813.00 A. Except as otherwise specified herein, the Developer shall pay all costs incurred by it or the City in conjunction with the development of the plat, including but not limited to Soil and Water Conservation District charges, legal, planning, engineering and construction observation 11 219911v9 Riverbend North Second Addition inspection expenses incurred in connection with approval and acceptance of the plat, the preparation of this Contract, review of construction plans and documents, and all costs and expenses incurred by the City in monitoring and inspecting development of the plat. B. The Developer shall hold the City and its officers, employees, and agents harmless from claims made by itself and third parties for damages sustained or costs incurred resulting from plat approval and development. The Developer shall indemnify the City and its officers, employees, and agents for all costs, damages, or expenses which the City may pay or incur in consequence of such claims, including attorneys' fees. C. The Developer shall reimburse the City for costs incurred in the enforcement of this Contract, including engineering and attorneys' fees. D. The Developer shall pay, or cause to be paid when due, and in any event before any penalty is attached, all special assessments referred to in this Contract. This is a personal obligation of the Developer and shall continue in full force and effect even if the Developer sells one or more lots, the entire plat, or any part of it. E. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Contract within thirty (30) days after receipt. If the bills are not paid on time, the City may halt plat development and construction under Phase 2 until the bills are paid in full. Bills not paid within thirty (30) days shall accrue interest at the rate of eighteen percent (18%) per year. Additionally, the Developer shall pay in full all bills submitted to it by the City prior to any reductions in the security for the development. F. In addition to the charges and special assessments referred to herein, other charges and special assessments may be imposed such as but not limited to sewer availability charges ("SAC"), City water connection charges, City sewer connection charges, and building permit fees. 27. DEVELOPER'S DEFAULT. In the event of default by the Developer as to any of the work to be performed by it hereunder, the City may, at its option, perform the work and the Developer shall 12 219911v9 Riverbend North Second Addition promptly reimburse the City for any expense incurred by the City, provided the Developer, except in an emergency as determined by the City, is first given notice of the work in default, not less than forty-eight (48) hours in advance. This Contract is a license for the City to act, and it shall not be necessary for the City to seek a Court order for permission to enter the land. When the City does any such work, the City may, in addition to its other remedies, assess the cost in whole or in part. 28. MISCELLANEOUS. A. The Developer represents to the City that the plat complies with all city, county, state, and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinancesI and environmental regulations. If the City determines that the plat does not comply, the City may, at its option, refuse to allow construction or development work in the Phase 2 Lot until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. B. Third parties shall have no recourse against the City under this Contract. C. Breach of the terms of this Contract by the Developer shall be grounds for denial of building permits for the Phase 2 Lot, including lots sold to third parties. D. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Contract is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Contract. E. Grading, curbing, and one lift of asphalt shall be installed on all public and private streets prior to issuance of any building permits. F. If building permits are issued prior to the acceptance of public improvements, the Developer assumes all liability and costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, the Developer, its contractors, subcontractors, material men, employees, agents, or third parties. No sewer and water connections or inspections may be conducted for the Phase 2 Lot and no one may occupy a building on the Phase 2 Lot for which a building permit is issued on either a temporary or 13 219911v9 Riverbend North Second Addition permanent basis until the streets needed for access have been paved with a bituminous surface and the utilities are accepted by the City Engineer. G. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of tHIS Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. H. This Contract shall run with the land and may be recorded against the title to the property. In the event this Contract is recorded, upon request by Developer, the City covenants to provide a recordable Certificate of Completion within a reasonable period of time following the request, upon the completion of the work and responsibilities required herein, payment of all costs and fees required and compliance with all terms of the Contract. A release of this Contract may be provided in the same manner and subject to the same conditions as a Certificate of Completion provided there are no outstanding or ongoing obligations of the Developer under the terms of this Contract. The Developer covenants with the City, its successors and assigns, that the Developer or its affiliate OA is well seized in fee title of the property being final platted and/or has obtained consents to this Contract, in the form attached hereto, from all parties who have an interest in the property; that there are no unrecorded interests in the property being final platted; and that the Developer will indemnify and hold the City harmless for any breach of the foregoing covenants. I. Insurance. Prior to execution of the final plat, Developer and its general contractor shall furnish to the City a certificate of insurance showing proof of the required insurance required under this Paragraph. Developer and its general contractor shall take out and maintain or cause to be taken out and maintained until six (6) months after the City has finally accepted the public improvements, if any, such insurance as shall protect Developer and its general contractor and the City for work covered by this Contract including workers' compensation claims and property damage, bodily and personal injury which may arise from operations 14 219911v9 Riverbend North Second Addition under this Contract, whether such operations are by the Developer and its general contractor or anyone directly or indirectly employed by either of the The minimum amounts of insurance shall be as follows: Commercial General Liability (orin combination with an umbrella policy) $2,000,000 Each Occurrence $2,000,000 Products/Completed Operations Aggregate $2,000,000 Annual Aggregate The following coverages shall be included: Premises and Operations Bodily Injury and Property Damage Personal and Advertising Injury Blanket Contractual Liability Products and Completed Operations Liability Automobile Liability $2,000,000 Combined Single Limit— Bodily Injury & Property Damage Including Owned, Hired & Non -Owned Automobiles Workers Compensation Workers' Compensation insurance in accordance with the statutory requirements of the State of Minnesota, including Employer's Liability with minimum limits are as follows: • $500, 000 — Bodily Injury by Disease per employee • $500, 000 — Bodily Injuryby Disease aggregate • $500, 000 — Bodily Injury by Accident The Developer's and general contractor's insurance must be "Primary and Non -Contributory". All insurance policies (or riders) required by this Contract shall be (i) taken out by and maintained with responsible insurance companies organized under the laws of one of the states of the United States and qualified to do business in the State of Minnesota, (ii) shall name the City, its employees and agents as additional insureds (CGL and umbrella only) by endorsement which shall be filed with the City and (iii) shall identify the name of the plat. A copy of the endorsement must be submitted with the certificate of insurance. Developer's and general contractor's policies and Certificate of Insurance shall contain a provision that coverage afforded under the policies shall not be cancelled without at least thirty (30) days' advanced written notice to the City, or ten (10) days' notice for non-payment of premium. is 219911v9 Riverbend North Second Addition An Umbrella or Excess Liability insurance policy may be used to supplement the Developer's or general contractor's policy limits on a follow -form basis to satisfy the full policy limits required by this Contract. J. Indemnification. To the fullest extent permitted by law, the Developer agrees to defend, indemnify and hold harmless the City, and its employees, officials, and agents from and against all claims, actions, damages, losses and expenses, including reasonable attorney fees, arising out of Developer's negligence or its performance or failure to perform its obligations under this Contract. The Developer's indemnification obligation shall apply to Developer's general contractor, subcontractor(s), or anyone directly or indirectly employed or hired by the Developer, or anyone for whose acts the Developer may be liable. The Developer agrees this indemnity obligation shall survive the completion or termination of this Contract. K. Each right, power or remedy herein conferred upon the City is cumulative and in addition to every other right, power or remedy, express or implied, now or hereafter arising, available to City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power or remedy. L. The Developer may not assign this Contract without the written permission of the City Council. The Developer's obligation hereunder shall continue in full force and effect even if the Developer sells the Phase 2 Lot, or any part of it, until the City's issuance of a Certificate of Completion and Release. M. Retaining walls over four feet in height, if any, shall be constructed in accordance with plans and specifications prepared by a structural or geotechnical engineer licensed by the State of Minnesota. Following construction, a certification signed by the design engineer shall be filed with the Building Official evidencing that the retaining wall was constructed in accordance with 16 219911v9 Riverbend North Second Addition the approved plans and specifications. All retaining walls identified on the development plans and by special conditions referred to in this Contract shall be constructed before any other building permit is issued for a lot on which a retaining wall is required to be built. All retaining walls must comply with the City's engineering manual and the City's zoning ordinance. N. Should the Developer convey the Phase 2 Lot to a third party, the City and the owner of that lot or those lots may amend this Development Contract or other city approvals or agreements for development or use of those lots without the approval or consent of the Developer or other lot owners in the Development. Private agreements between the owners of lots within the Development for shared service or access and related matters necessary for the efficient use of the Development shall be the responsibility of the lot owners and shall not bind or restrict City authority to approve applications from any lot owner in the Development. 29. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, its employees or agents, or mailed to the Developer by certified mail at the following address: 7535 River Road NE, Otsego, Minnesota 55330. Notices to the City shall be in writing and shall be either hand delivered to the City Administrator, or mailed to the City by certified mail in care of the City Administrator at the following address: Otsego City Hall, 13400 90th Street NE, Otsego, Minnesota 55330. (The remainder of this page has been intentionally left blank. Signature pages follow.] 17 219911v9 Riverbend North Second Addition (SEAL) STATE OF MINNESOTA )ss. COUNTY OF WRIGHT CITY OF OTSEGO BY: Jessica L. Stockamp, Mayor Audra Etzel, City Clerk The foregoing instrument was acknowledged before me this day of , 20221 by Jessica L. Stockamp and by Audra Etzel, the Mayor and City Clerk of the City of Otsego, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. NOTARY PUBLIC m 219911v9 Riverbend North Second Addition STATE OF MINNESOTA )ss. COUNTY OF DEVELOPER: OTSEGO APARTMENTS II, LLC BY: Casey J. Darkenwald Its Chief Manager The foregoing instrument was acknowledged before me this day of , 20221 by Casey J. Darkenwald, the Chief Manager of Otsego Apartments, LLC, a Minnesota limited liability company, on behalf of said entity. NOTARY PUBLIC 19 21991 lv9 Riverbend North Second Addition FEE OWNER CONSENT The undersigned fee owner does hereby consent to the filing of the plat of RIVERBEND NORTH SECOND ADDITION and this Contract in the Office of the Wright County Recorder and/or Wright County Registrar of Titles. In testimony thereof, the undersigned has hereto executed this instrument this _day of 2022. STATE OF MINNESOTA )ss. COUNTY OF OTSEGO APARTMENTS, LLC BY: Casey J. Darkenwald Its Chief Manager The foregoing instrument was acknowledged before me this day of , 2022, by Casey J. Darkenwald, the Chief Manager of Otsego Apartments, LLC, a Minnesota limited liability company, on behalf of said entity. DRAFTED BY: CAMPBELL, KNUTSON Professional Association Grand Oak Office Center 1 860 Blue Gentian Road, Suite 290 Eagan, MN 55121 Telephone: 651-452-5000 DSK/smt 20 219911v9 Riverbend North Second Addition 1 MORTGAGE HOLDER CONSENT TO DEVELOPMENT CONTRACT WINGS FINANCIAL CREDIT UNION, a Minnesota credit union, which holds: A Combination Mortgage, Security Agreement and Fixture Financing Statement executed by Otsego Apartments, LLC, a Minnesota limited liability February 6, 2019 as Document Number A1389285 in Wings Financial Credit Union; AND company, dated January 25, 2019, filed the amount of $12, 900,000.00 in favor of 2 Assignment of Rents and Leases by and between Otsego Apartments, LLC, a Minnesota limited liability company, and Wings Financial Credit Union, dated January 25, 2019, filed February 6, 2019 as Document Number Al389286; p\� 3. A Combination Mortgage, Security Agreement and Fixture Financing Statement executed by Otsego Apartments, LLC, Otsego Mini Storage, LLC and Darkenwald's Riverbend Wastewater Company, LLC, dated April 17, 2020, filed April 20, 2020 as Document Number A1424064 in the amount of $1,516,000.00, in favor of Wings Financial Credit Union (covers additional property); AND 4. Assignment of Rents and Leases by and between Otsego Apartments, LLC, a Minnesota limited liability company, and Wings Financial Credit Union, dated April 17, 2020, filed April 20, 2020 as Document Number A1424065; AND 5. A Combination Mortgage, Security Agreement and Fixture Financing Statement executed by Otsego Mini Storage LLC, a Minnesota limited liability company and Otsego Apartments, LLC, a Minnesota limited liability company, dated April 17, 2020, filed April 20, 2020 as Document Number A1424066 in the amount of $631,767.00, in favor of Wings Financial Credit Union; AND 6. Assignment of Rents and Leases by and between Otsego Apartments, LLC, a Minnesota limited liability company, and Wings Financial Credit Union, dated April 17, 2020, filed April 20, 2020 as Document Number A1424067; AND 7. A Combination Mortgage, Security Agreement and Fixture Financing Statement executed by Otsego Apartments, LLC, a Minnesota limited liability company et. al., dated December 14, 2020, filed January 4, 2021 as Document Number A1453921 in the amount of $900,000.00, in favor of Wings Financial Credit Union (covers additional property); 21 219911 v9 Riverbend North Second Addition AND 8. Assignment of Rents and Leases by and between Otsego Apartments, LLC, a Minnesota limited liability company et. al., and Wings Financial Credit Union, dated December 14, 2020, filed January 41 2021 as Document Number A1453922. on the subject property, the development of which is governed by the foregoing Development Contract, agrees that the Development Contract shall remain in full force and effect even if it forecloses on its mortgage. Dated this day of , 2022. STATE OF MINNESOTA )ss. COUNTY OF WINGS FINANCIAL CREDIT UNION By: Its The foregoing instrument was acknowledged before me this 20221 by , the Credit Union, a Minnesota credit union, on behalf of said entity. NOTARY PUBLIC DRAFTED BY: CAMPBELL KNUTSON Professional Association Grand Oak Office Center 1 860 Blue Gentian Road, Suite 290 Eagan, Minnesota 55121 351452-5000 DSK/smt [print name] [title] of Wings Financial 22 219911v9 Riverbend North Second Addition [BANK LETTERHEAD] IRREVOCABLE LETTER OF CREDIT TO: City of Otsego City Hall 13400 90t' Street NE Otsego, Minnesota 55330 Dear Sir or Madam: No. _ Date: We hereby issue, for the account of (Name of Developer) and in your favor, our Irrevocable Letter of Credit in the amount of $ available to you by your draft drawn on sight on the undersigned bank. The draft must: a) Bear the clause, "Drawn under Letter of Credit No. dated , 2 , of (Name of Bank) "; b) Be signed by the City Administrator or Finance Director of the City of Otsego. c) Be presented for payment at (Address of Bank) before 400 p.m. on November 30, 2 This Letter of Credit shall automatically renew for successive one-year terms unless, at least forty-five (45) days prior to the next annual renewal date (which shall be November 30 of each year), the Bank delivers written notice to the Otsego Finance Director that it intends to modify the terms of, or cancel, this Letter of Credit. Written notice is effective if sent by certified mail, postage prepaid, and deposited in the U.S. Mail, at least forty- five (45) days prior to the next annual renewal date addressed as follows: Otsego Finance Director, Otsego City Hall, 13400 90th Street NE, Otsego, MN 55330, and is actually received by the Finance Director at least thirty (30) days prior to the renewal date. This Letter of Credit sets forth in full our understanding which shall not in any way be modified, amended, amplified, or limited by reference to any document, instrument, or agreement, whether or not referred to herein. This Letter of Credit is not assignable. This is not a Notation Letter of Credit. More than one draw may be made under this Letter of Credit. This Letter of Credit shall be governed by the most recent revision of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600. We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly honored upon presentation. [NAME OF BANK] BY: Its 23 219911v9 Riverbend North Second Addition