RES 2022-49 Approving a Development Contract for Jacobs PlatCITY OF OTSEGO
COUNTY OF WRIGHT
STATE OF MINNESOTA
RESOLUTION NO: 2022-49
APPROVING A DEVELOPMENT CONTRACT FOR
JACOBS PLAT
WHEREAS, Endeavor Investments XII, LLC (the "developer") is proposing platting ofthe Jacobs Plat final plat;
and
WHEREAS, a final plat was approved by the City Council on 9 May 2022; and
WHEREAS, Section 10-10-4.A of the Subdivision Ordinance and Section 11-9-7 of the Zoning 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 Endeavor Investments
All, 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.
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ADOPTED by the City Council of the City of Otsego this 9tn day of May, 2022.
MOTION BY: Moores
SECONDED BY: Dahl
IN FAVOR: Stockamp, Dahl, Darkenwald, Goede, and Moores
OPPOSED: none
CITY OF OTSEGO
Jessica L. Stockamp, M
ATTEST:
Audra'Etzel, City Clerk
CONTRACT dated
(resewed for reca•ding information)
DEVELOPMENT CONTRACT
(Developer Installed Improvements)
JACOBS PLAT
2022, by and between the CITY OF OTSEGO, a
Minnesota municipal corporation ("City"), and ENDEAVOR INVESTMENTS XII, LLC, a Minnesota limited
liability company (the "Developer").
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a plat
for JACOBS PLAT (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:
The North Half of the Southeast Quarter, Section 35, Township 121, Range 23, in Wright
County, Minnesota.
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.
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
220939v8 Jacobs Plat
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. If the plat is a phase of amulti-phased preliminary plat, 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 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 plat shall be developed in accordance with the following
plans. 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:
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220939v8 Jacobs Plat
Plan A - Plat
Plan B - Final Grading, Drainage, and Erosion Control Plan
Plan D - Plans and Specifications for Public Improvements
Plan E -Street Lighting Plan
Plan F -Landscape Plan
8. IMPROVEMENTS. The Developer shall install and pay for the following:
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 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. 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. 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
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220939v8 Jacobs Plat
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 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 all parties concerned, 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
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 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
FAI
220939v8 Jacobs Plat
H. City of Otsego for Building Permits, Retaining Walls, Irrigation
I. MDH for water permits
J. MPCA for sewer extension
11. DEWATERING. Due to the variable nature of groundwater levels and stormwater flows, it
wiHI 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 May 31, 2023.
13. STREETS. The Developer agrees to maintain the area of Queens Avenue under
construction for access to utilities and curb cuts until the base course bituminous surfacing has been
accepted by the City. Should the City be required to grade the street prior to paving, the cost of such
grading shall be paid by the Developer and drawn from the Developer's letter of credit. Should the City
determine that snowplowing is necessary prior to street paving, the City will plow the street(s) prior to
acceptance of the streets. The Developer shall hold harmless and indemnify the City from any and all
liability related to this snow plowing and shall pay all costs associated with this snow plowing. Any plowing
undertaken by the City shall constitute no acceptance or evidence of acceptance of the street(s) in question.
The final wear course shall not be constructed until at least one construction season after the base
construction is completed. Upon final completion of streets and acceptance by the City as a City street
rather than a private drive, the Developer shall guarantee to the City for a period of two (2) years the streets
have been constructed to City standards. The warranty period shall not commence until such time as street
construction is completed and the streets are accepted as City streets by the City. The two (2) year
warranty period set forth above commences upon the date on which the City accepts the streets by
resolution.
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220939v8 Jacobs Plat
14. 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.
15. 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,
utility or street construction will be allowed and no building permits will be issued unless the plat is in full
compliance with the approved erosion control plan.
16. GRADING. The plat 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 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 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,
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220939v8 Jacobs Plat
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. The
Developer certifies to the City that all lots with house footings placed on fill have been monitored and
constructed to meet or exceed FHA/HUD 79G specifications. The soils observation and testing report,
including referenced development phases and lot descriptions, shall be submitted to the Building Official for
review prior to the issuance of building permits.
If the final grading, erosion control and as -built survey is not timely completed, the City may enter
the 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.
17. 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
construction in the plat, the Developer shall identify in writing a responsible party and schedule for erosion
control, street cleaning, and street sweeping.
18. 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.
19. PUBLIC IMPROVEMENT AND SPECIAL ASSESSMENT AGREEMENT FOR SEWER
AND WATER AVAILABILITY CHARGES. The Developer/Owner requests that the Otsego
City Counsel specially assess certain public improvement costs that affect the plat. The Developer/
Owner and City will simultaneously with the execution of this Contract, enter into a separate Public
Improvement and Special Assessment Agreement for sewer and water availability charges. This
Development Contract requires compliance with the Public Improvement and Special Assessment
Agreement. Any violation of the terms and conditions of the Public Improvement and Special
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220939v8 Jacobs Plat
Assessment Agreement shall result in a default of both the Public Improvement and Special
Assessment Agreement and the Development Contract.
20. LATERAL STORM SEWER. The Developer shall post a security for lateral storm sewer
in the amount of $292,300.00 which is due upon final plat approval.
21. 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 at 3.5 RECs per gross
acre for commercial, industrial, or institutional uses. The Developer shall post a security in the amount of
$25,000.00 for Lateral and Trunk Sanitary Sewer which is due upon final plat approval.
The Developer shall pay a cash fee in the amount of $209,422.15 for the Sewer Availability Charge
("SAC") at the time of plat approval which is calculated as follows:
20.74 Gr Ac X 3.5 RECs/Gr Ac X $2,885.00/REC = $209,422.15
22. LATERAL AND TRUNK WATERMAIN. The Developer shall post a security in the
amount of $358,520.00 for the installation of lateral and trunk watermain and connection. The Developer
shall pay a cash fee in the amount of $146,196.26 for the Water Availability Charge ("WAC") at the time of
plat approval which is calculated as follows:
20.74 Gr Ac X 3.5 RECs/Gr Ac X $2,014.00/REC = $146,196.26
23. 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.
24. CONSTRUCTION ACCESS. Construction traffic access and egress for grading, public
utility construction, and public street construction is restricted to access the subdivision as approved by the
City Engineer.
220939v8 Jacobs Plat
25. LANDSCAPING. Landscaping (and screening fence) shall be installed in accordance
with the approved landscape plan. The Developer shall post a $226,000.00 landscaping security at the
time of final plat approval to ensure that the landscaping and screening fence is installed in accordance
with the approved plan.
26. WETLAND REPLACEMENT OR MITIGATION. Before the City signs the final plat, the
Developer shall post a security in the amount of $520,565.00 for Wetland Replacement Credits. The
Developer shall post a security in the amount of $95,843.00 for Wetland Mitigation. The Wetland
Replacement Credits security and Wetland Mitigation security may be in the form of a letter of credit
separate from the primary development security or in the form of anon -interest bearing cash escrow with
the City. If the mitigation area is found to be unsuccessful after the mandatory five-year warranty period,
the City may elect to keep the security to be used for this mitigation project or for wetland
mitigation/restoration elsewhere within the City. In addition, the City may draw down the security at any
time during the warranty period if the Developer fails to take corrective measures as directed by the City to
perform the work recommended.
27. SPECIAL PROVISIONS. The following special provisions shall apply to plat development:
A. Implementation of the conditions listed in the Findings of Fact approved by the City Council on
May 9, 2022.
B. Final platting of any portion of Outlot A as a lot/block, or as an expansion of an existing lot, shall
require that 651h Street be constructed as an Industrial/Commercial Major Collector Street in
compliance with Section 10-8-5.A.7 of the Subdivision Ordinance, unless the roadway has
already been improved to that standard.
C. All utility plans shall be subject to review and approval of the City Engineer.
D. The Developer shall pay Utility Availability Charges as provided for by the City Code upon
approval of the final plat.
E. The Developer shall pay Utility Connection Charges in accordance with the City Code at the
time a building permit is issued.
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220939v8 Jacobs Plat
F. All grading, drainage, wetland, and erosion control plans shall be subject to review and approval
of the City Engineer.
G. All drainage and utility easements shall be subject to review and approval of the City Engineer.
H. Prior to City Council approval of the final plat, the Developer shall furnish a boundary survey of
the proposed property to be platted with all property corner monumentation in place and marked
with lath and a flag. Any encroachments on or adjacent to the property 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.
I. The Developer shall pay a cash fee for the preparation of record construction drawings, GIS,
and City base map updating. This fee is $250.00 per lot for a total charge of $250.00.
J. 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.
28. CONSTRUCTION ADMINISTRATION AND FEES FOR CITY SERVICES. The Developer
shall pay a fee for consulting engineering administration following approval of the Plat. City engineering
administration will include consultation with Developer and its engineer on status or problems regarding the
project, monitoring during the warranty period, general administration and processing of requests for
reduction in security. Fees for this service shall be the actual amount billed for those services, which are
estimated to be three percent (3%) of the estimated construction cost of the Improvements to be inspected,
assuming normal construction and project scheduling. The Developer shall pay for construction observation
performed by the City Engineer. Construction observation shall include part or full time observation, as
determined by the City Engineer, of proposed street, sanitary sewer, water and storm drainage construction
and will be billed on hourly rates actually required for said inspection, which are estimated to be five percent
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220939v8 Jacobs Plat
(5%) of the estimated construction cost of the Improvements to be inspected. In the event of prolonged
construction or unusual problems, the City will notify the Developer of anticipated cost overruns for
engineering administration and observation services. Any amounts for engineering administration not
utilized from this escrow fund shall be returned to the Developer when all improvements have been
completed, all financial obligations to the City satisfied, and the required "as constructed" plans have been
received by the City.
The escrow and fee account shall also include estimated fees for Legal expenses actually
incurred (with any excess funds, if any, returned to Developer as indicated in this Contract), City
Administrative Fee (a flat fee due upon execution of this Agreement), Trunk Water and Sewer Access Fees
(a flat fee due upon execution of this Agreement), Park and Trail Dedication Fees (a flat fee due upon
execution of this Agreement), and shall be as stated by the Financial Summary.
This escrow amount shall be submitted to the City prior to the City executing this Agreement.
All administrative and legal fees related to plan review, drafting of this Agreement and any other necessary
items shall be paid to the City prior to execution of this Agreement. Any amounts for legal and engineering
not utilized from this escrow fund shall be returned to the Developer when all improvements have been
completed, all financial obligations to the City satisfied, and the required "as constructed" plans have been
received by the City.
All other amounts listed as flat fees are non-refundable and available immediately for City use
when posted.
29. SECURITY. To ensure compliance with the terms of this Contract, and construction of all
public improvements, and satisfaction of all other obligations, the Developer shall furnish the City with a
cash escrow or Irrevocable Standby Letter of Credit with automatic renewal provisions in the amount as
required under this Contract. The issuer and form of the security (other than cash escrow) shall be subject
to City approval in its reasonable discretion. The security shall be issued by a banking institution in good
standing as determined by the City and approved by the City Administrator. The City shall have the ability to
draw on the security at a bank or branch bank located within fifty (50) miles of the City Hall. The security
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220939v8 Jacobs Plat
shall contain an automatic renewal provision and shall not expire until all the Development is complete and
fully and finally accepted by the City, and all terms of this Contract are satisfied.
The City may draw down the security, on five (5) business days written notice to the Developer, for
any violation of the terms of this Contract or without notice if the security is allowed to lapse prior to the end
of the required term. If the required public improvements are not completed at least thirty (30) days prior to
the expiration of the security, the City may also draw it down without notice. If the security is drawn down,
the proceeds shall be used to cure the default.
Upon receipt of proof satisfactory to the City that work has been completed and financial obligations
to the City have been satisfied, with City approval not to be unreasonably withheld or delayed, the security
shall be reduced from time to time in proportion to the work completed, but not below ten (10) percent which
is the amount of the warranty security. For purposes of this Section, the warranty period shall be a twelve
(12) month period after the applicable work has been completed, except with respect to streets, for which
the warranty period shall be two years as addressed elsewhere in this Contract.
This security amount shall be submitted to the City prior to execution of the Contract. All
administrative and legal fees related to plan review, drafting of this Contract and any other necessary items
shall be paid to the City prior to execution of the Contract. Upon completion of the work contemplated
hereunder and expiration of the warranty period, the remaining security shall be promptly released to
Developer.
30. SUMMARY OF SECURITY REQUIREMENTS
above is calculated as follows:
CONSTRUCTION COSTS:
A. Sanitary Sewer —Lateral and Trunk
B. Watermain —Lateral and Trunk
C. Storm Sewer -Lateral
D. Streets
CONSTRUCTION SUB -TOTAL
The amount of the security described
$25,000.00
358,520.00
292, 300.00
15,000.00
$690,820.00
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220939v8
Jacobs Plat
OTHER COSTS2
A. Site Grading, Erosion & Sediment Control
and Wetland Protection
B. Engineering at Surveying Construction Services
C. Landscaping/Screening
D. Wetland Replacement (Credits)
E. Wetland Replacement (Mitigation)
F. Retaining Walls
OTHER COSTS SUB -TOTAL
TOTAL —SUBTOTAL
TOTAL IRREVOCABLE LETTER OF CREDIT
FOR SECURITY (125% OF SUBTOTAL
ESCROW
A. City Legal Expenses (Est. 1.0% of $690,820.00)
B. City Construction Observation (Est. 8.0% of $690,820,00)
C. GIS Data Entry Fee
ESCROW TOTAL
$1101940.00
44,903.30
226)000.00
520,565.00
95, 843.00
52,415.00
$1.050.666.30
$1,741,486.30
$2,176,857.88
$6,908.20
55,265060
$250.00
$62,423.80
This breakdown is not a restriction on the use of the security.
31. 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 the City Council signing the
final plat:
A. City Administrative (Est. 1.0% of $690,820.00) $6,908.20
B. Trunk Sewer Availability Charge (SAC) 209,422.15
C. Trunk Water Availability Charge (WAC) 146,196.26
TOTAL CASH REQUIREMENTS $3627526.61
32. WARRANTY. The Developer warrants all improvements required to be constructed by it
pursuant to this Contract against poor material and faulty workmanship, other than as set forth hereafter in
this Section 31, for a period of one (1) year. The warranty period for streets is two (2) years as specified in
this Contract. The warranty period for underground utilities is one (1) years and shall commence following
completion and acceptance by City Council. A minimum of 10% of the total security as specified above in
the portion of Section 30 of this Contract shall be retained as warranty security calculated as follows.
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220939v8 Jacobs Plat
33
A.
DEVELOPMENT WARRANTY LETTER OF CREDIT
A. Sanitary Sewer
B. Watermain
C. Storm Sewer
D. Streets
E. Erosion &Sedimentation Control
F. Wetland Mitigation &Monitoring
TOTAL WARRANTY LETTER OF CREDIT
RESPONSIBILITY FOR COSTS.
$3,750.00
53,778000
43,845400
4,000000
5,547600
95,843.00
$206,763.00
Except as othen�vise specified herein, the Developer sf�all 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
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,
C
including engineering and attorneys' fees.
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.
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220939v8 Jacobs Plat
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 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.
34. 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
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.
35. 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
ordinances, 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 plat
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.
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220939v8 Jacobs Plat
C. Breach of the terms of this Contract by the Developer shall be grounds for denial of building
permits, 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, Developer, its contractors, subcontractors,
material men, employees, agents, or third parties. No sewer and water connections or
inspections may be conducted and no one may occupy a building for which a building permit is
issued on either a temporary or 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
anA 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 Developer under the terms of this
Contract. The Developer covenants with the City, its successors and assigns, that the
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220939v8 Jacobs Plat
Developer 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.
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, such insurance as shall protect Developer and its general contractor
and the City for work covered by the Contract including workers' compensation claims and
property damage, bodily and personal injury which may arise from operations under this
Contract, whether such operations are by Developer and its general contractor or anyone
directly or indirectly employed by either of them
as follows:
The minimum amounts of insurance shall be
Commercial General Liability (or in 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 Injury by Disease aggregate
17
220939v8 Jacobs Plat
J
K.
• $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.
An Umbrella or Excess Liability insurance policy may be used to supplement Developer's
or general contractor's policy limits on a follow -form basis to satisfy the full policy limits
required by this Contract.
Indemnification. To the fullest extent permitted by law, 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. Developer's indemnification obligation shall apply to Developer's general
contractor, subcontractor(s), or anyone directly or indirectly employed or hired by Developer,
or anyone for whose acts Developer may be liable. Developer agrees this indemnity
obligation shall survive the completion or termination of this Contract.
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
220939v8
iF:3
Jacobs Plat
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 one or more lots, the entire plat, 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 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
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 any lot or lots in the Development 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.
36. 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: 200 Southdale Center, Suite 190, Minneapolis, MN 55435. Notices to the City shall
be in writing and shall be either hand delivered to the City Administrator, or mailed to the City by
19
220939v8 Jacobs Plat
certified mail in care of the City Administrator at the following address: Otsego City Hall, 13400 90th
Street INC:, Otsego, Minnesota 55330.
The remainder of this page has been intentionally left blank.
Signature pages follow.]
20
220939v8 Jacobs Plat
(SEAL)
STATE OF MINNESOTA
)ss.
COUNTY OF WRIGHT
CITY OF OTSEGO
BY:
AND
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
21
220939v8 Jacobs Plat
DEVELOPER:
ENDEAVOR INVESTMENTS XII, LLC
BY:
STATE OF MINNESOTA )
)ss.
COUNTY OF )
Its
The foregoing instrument was acknowledged before me this day of
2022, by the
Endeavor Investments XII, 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: 651452-5000
DSK/smt
NOTARY PUBLIC
of
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220939v8 Jacobs Plat
23
220939v8 Jacobs Plat
MORTGAGE HOLDER CONSENT
TO
DEVELOPMENT CONTRACT
, which holds a mortgage 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
STATE OF MINNESOTA
COUNTY OF
The
2 , by
foregoing instrument was acknowledged before me this day of
DRAFTED BY:
CAMPBELL KNUTSON
Professional Association
Grand Oak Office Center 1
860 Blue Gentian Road, Suite 290
Eagan, Minnesota 55121
651452-5000
DSK/smt
NOTARY PUBLIC
1
220939v8 Jacobs Plat
[BANK LETTERHEAD]
IRREVOCABLE LETTER OF CREDIT
TO: City of Otsego
City Hall
13400 90th Street NE
Otsego, Minnesota 55330
Dear Sir or Madam:
No. _
Date:
We hereby issue, for the account of Lame 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_, on or before 400 p.m. on November 30,
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
2
220939v8 Jacobs Plat
(Above Space is Reserved for Recordmg Information
Minnesota Wetland Conservation Act
Declaration of Restrictions and Covenants for Project -Specific
Wetland Replacement
Replacement Wetland Declarant:
General Location of Replacement: Sec. , Twp. , Rge. ,County of
This Declaration of Restrictions and Covenants for Project -Specific Wetland Replacement
Wetland (Declaration) is made this day of ,
RECITALS
by the undersigne
A. The Declarant holds the fee title or perpetual easement on the real property described in
Exhibit A, attached hereto.
B. This real property is the site of a Replacement Wetland, as defined in Minnesota Rules
8420.0111, subp. 60. Exhibit B, attached hereto, is a map or survey of the subject Replacement
Wetland.
C. The Declarant is seeking approval of (1) a replacement plan under Minnesota Statutes
section 103G.222.
D. The Replacement Wetland is subject to the Wetland Conservation Act of 1991, as
amended, Minnesota Statutes section 103G.222 et se ., and all other provisions of law that apply to
wetlands, except that the exemptions in Minnesota Statutes section 103G.2241 do not apply to the
Replacement Wetland, pursuant to Minnesota Rules 8420.0420.
E. The Local Government Unit (LGU) charged with approval of the Replacement Plan is
whose address is
1
220939v8 Jacobs Plat
I's All references in this instrument to Minnesota Statutes and Rules are to the Statutes and
Rules currently in effect and as amended or renumbered in the future.
RESTRICTIONS AND COVENANTS
The Declarant makes the following declaration of restrictions and covenants for the Replacement
Wetland. These restrictions and covenants shall run with the land, and bind Declarant, and Declarant's
heirs, successors, and assigns:
1. The Declarant shall maintain a Replacement Wetland of the size and type specified in the
replacement plan approved by the LGU and on file at the offices of the LGU. Declarant shall not make
any use of the Replacement Wetland that would adversely affect the functions or values of the wetland
as determined by Minnesota Rules 8420.0522, and as specified in the replacement plan.
2. Declarant shall pay the costs of maintenance, repairs, reconstruction, and replacement of
the Replacement Wetland, which the LGU or the State of Minnesota through the Minnesota Board of
Water and Soil Resources may deem necessary to comply with the specifications for the Replacement
Wetland in the approved replacement plan.
3. Declarant grants to the LGU, the State of Minnesota, and the agents and employees of
the LGU and the State of Minnesota, reasonable access to the Replacement Wetland for inspection,
monitoring, and enforcement purposes. This Declaration grants no access to or entry on the lands
described to the general public.
4. Declarant represents that he or she has a fee simple or easement interest in the land on
which the Replacement Wetland is or will be located. Declarant represents that he or she has obtained
the consent of all other parties who may have an interest in the land on which the Replacement Wetland
is or will be located to the creation of the restrictions and covenants herein, and that, all such parties
have agreed in writing to subordinate their interests to these restrictions and covenants, pursuant to the
attached Consent and Subordination Agreement(s).
5. Declarant shall record or file this Declaration, pay all costs associated with recording or
ng, and provide proof of recording or ng to the LGU. If this Declaration is given pursuant to a
replacement plan, such proof shall be provided to the LGU before proceeding with construction of the
Replacement Wetland.
6. Acknowledge that this Easement shall be unlimited in duration, without being re -recorded.
This Easement shall be deemed to be a perpetual conservation easement pursuant to Minn. Stat. ch. 84C.
7. If the replacement plan approved by the LGU and on file at its offices requires the
establishment of areas of native vegetative cover, the term "Replacement Wetland" as used in this
Declaration shall also include the required areas of permanent vegetative cover, even if such areas are
not wetlands. All provisions of this Declaration that apply to the Replacement Wetland shall apply
equally to the required areas of native vegetative cover. In addition, the Declarant:
(a) Shall comply with the applicable requirements of Minnesota Rules 8420.0526;
(b) Shall, at Declarant's cost, establish and maintain permanent vegetative cover on areas
specified in the replacement plan for native vegetative cover, including any necessary planting
220939v8 Jacobs Plat
and replanting thereof, and other conservation practices, in accordance with the replacement
plan;
(c) Shall not produce agricultural crops on the areas specified in the replacement plan;
(d) Shall not graze livestock on the areas speced in the replacement plan or;
(e) Shall not place any materials, substances, or other objects, nor erect or construct any type of
structure, temporary or permanent, on the areas specified in the replacement plan, except as
provided in the replacement plan;
(f) Shall, at Declarant's cost, be responsible for weed control by complying with noxious weed
control laws and emergency control of pests necessary to protect the public health on the areas
specified in the replacement plan; and
(g) Shall comply with any other requirements or restrictions specified in the replacement plan,
including, but not limited to, haying, mowing, timber management or other vegetative alterations
that do not enhance or would degrade the ecological functions and values of the replacement
site.
8. This Declaration may be modified only by the joint written approval of the LGU and the
State of Minnesota through the Minnesota Board of Water and Soil Resources. If the Replacement
Wetland has been used to mitigate wetland losses under the Federal Water Pollution Control Act, the
U.S. Army Corps of Engineers (or successor agency) must also agree to the modification in writing.
Such modification may include the release of land contained in the legal description above, if it is
determined that non -wetland areas have been encumbered by this Declaration, unless the approved
replacement plan designates these non -wetland areas for establishment of permanent vegetative cover.
9. This Declaration may be enforced, at law or in equity, by the LGU, or by the State of
Minnesota. The LGU and the State of Minnesota shall be entitled to recover an award of reasonable
attorneys fees from Declarant in any action to enforce this Declaration. The right to enforce the terms of
this Declaration is not waived or forfeited by any forbearance or failure to act on the part of the State or
LGU. If the subject replacement area is to be used partially or wholly to fulfill permit requirements under
the Federal Water Pollution Control Act or a federal farm program, then the provisions of this Declaration
that run to the State or the LGU may also be enforced by the United States of America in a court of
competent jurisdiction.
10. This Declaration must be recorded and proof of recording submitted to the LGU or other
regulatory authority in order to be valid.
Signature of Declarant
Signature of Declarant
3
220939v8 Jacobs Plat
STATE OF MINNESOTA )
ss.
COUNTY OF )
This instrument was acknowledged before me on (date) by (name(s) of person(s)0
(Signature of Notarial Officer)
(Title)
My commission expires:
Attachments: [ ] Exhibit A (legal description)
[ ] Exhibit B (map or survey of Replacement Wetland)
This instrument drafted by:
4
220939v8 Jacobs Plat
MINNESOTA WETLAND CONSERVATION ACT
AFFIDAVIT OF LANDOWNER(S)
STATE OF MINNESOTA
( ss.
COUNTY OF
the Affiant herein, being first duly
swornI deposes and says:
1. Affiant is the owner of land described as follows, to -wit:
(see attached legal description in Declaration)
2. Affiant is well-acquainted with the above -described land.
3. As of 72 no persons were in possession of or claiming title to said
land other than Affiant.
4. There have been no improvements made during the one hundred twenty (120) days prior to the
above date for which any mechanics' liens might have arisen.
5. All taxes and assessments levied against the property have been paid when due, and such
property is free and clear of any tax lien except for current taxes not yet due or not yet delinquent.
6. No lien for unpaid income taxes has been filed or is outstanding against the property.
7. The land described above is free of all mortgages, easements, liens and other encumbrances
except as specified on the attached Form A-2 (Consent to Replacement Wetland).
8. No judgment or decree has been entered against Affiant that remains unsatisfied.
9. Affiant has not filed a bankruptcy petition nor had one filed against him under Title 11 of the
United States Code.
Further your Affiant sayeth not.
Subscribed and sworn to before me
this day of , 2
Notary Public
AG:962 v1
220939v8 Jacobs Plat
CONSENT TO REPLACEMENT WETLAND
WHEREAS,
following lands:
[Insert same legal description from Replacement Wetland
Declaration]
AND WHEREAS, the undersigned,
pursuant to:
Mortgage
Utility Easement for utility line or pipeline
which runs through the Replacement Wetland
Drainage Easement for ditch, the line or other
drainage system which runs through the
Replacement Wetland
Contract for Deed
Lien
Other (specify)
is the fee owners) of the
has an interest in the land
which document is dated ,and was recorded on
the Office of the County Recorder for Wright County, in Book Page as Document No.
; and
m
WHEREAS, the fee owner or Landowner as defined in Minn. Rules part PAW) .0110, subp. 29
intends to restore or create a Replacement Wetland under Minn. Stat. sec. 103G.222 and Minn. Rules part
8420.0530 or Minn. Rules part 8420.0740, upon the land described above.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the
undersigned hereby consents to the creation or restoration of the Replacement Wetland. The
undersigned acknowledges that its interest in the land on which the Replacement Wetland is located shall
be subject to all federal, state and local laws and regulations regarding wetlands, including the Declaration
of Restrictions and Covenants for Replacement Wetland that is attached hereto.
220939v5
IN TESTIMONY WHEREOF,
day of
, the
of the undersigned, has executed this document this
Title
ACKNOWLEDGEMENT
STATE OF MINNESOTA )
(ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
by
Notary Public
Notary Stamp or Seal
THIS INSTRUMENT WAS DRAFTED BY:
Board of Water and Soil Resources
520 Lafayette Road
St. Paul, Minnesota 55155
day of
220939v5