ITEM 4.1 Kaledioscope ExpansionOt�TY of 4-0 Request for
eO City Council Action
MINNESOTA V
DEPARTMENT INFORMATION
ORIGINATING DEPARTMENT: REQUESTOR: MEETING DATE:
Planning City Planner Licht 25 August 2014
PRESENTER(s): REVIEWED BY: ITEM #:
City Planner Licht City Administrator Johnson 4.1— Kaleidoscope Expansion
AGENDA ITEM DETAILS
RECOMMENDATION:
City staff recommends approval of a development contract for a final plat related to expansion of
Kaleidoscope Charter School.
ARE YOU SEEKING APPROVAL OF A CONTRACT? I IS A PUBLIC HEARING REQUIRED?
Yes. I No.
BACKGROUND/JUSTIFICATION:
Kaleidoscope Charter School has submitted plans for a proposed 29,598 square foot expansion of its
existing 43,015 square foot building that will allow for the education program to serve Kindergarten
through 12th grade students. To accommodate the expansion, Outlot A, Dara Glen to the west of the
School's existing property has been acquired and is to be combined with the existing lot upon which the
school developed. The subject site is located at 7525 Kalland Avenue, north of 70th Street and west of
CSAH 19. The City Council approved a PUD -CUP, preliminary and final plat and vacation of existing
easements at their meeting on 11 August 2014.
The City Attorney has drafted a development agreement and a resolution approving related to approval
of the final plat. City staff and Kaleidoscope Charter School officials met regarding the satisfying park
dedication requirements with an agreement allowing joint use of the playfield and parking lot by the
City for recreation purposes. The terms of the joint use of the Kaleidoscope property are to be made in
a separate agreement and the development agreement defers payment of the park dedication fees
pending such an agreement being reached. Kaleidoscope Charter School will also be petitioning in a
separate request to assess the utility connection charges that would be due to be paid with the building
permit application, which will require City Council approval at a future date.
SUPPORTING DOCUMENTS: ❑ ATTACHED ❑ NONE
A. Findings of Fact
B. Resolution 2014-57 approving a development contract
C. Draft Development Contract
Please word motion as you would like it to appear in the minutes.
Motion to adopt Resolution 2014-57 approving a development agreement related to approval of
Kaleidoscope Charter School Addition.
BUDGET INFORMATION
FUNDING: BUDGETED: o YES
NA o NO
ACTION TAKEN
D APPROVED AS REQUESTED D DENIED D TABLED D OTHER (List changes)
COMMENTS:
.s
OtsTez o
MINNESOTA V
APPLICANT: KCS Building Company
08-05-14
FINDINGS & DECISION
PUD -CUP and PRELMINARY/FINAL PLAT
APPLICATION: Request for approval of a PUD -CUP for a 29,598 square foot expansion for
Kaleidoscope Charter School and preliminary plat and final plat to be known as Kaleidoscope
Addition.
CITY COUNCIL MEETING: 11 August 2014
FINDINGS: Based upon review of the application and evidence received, the Otsego City Council
now makes the following findings of fact:
A. Lot, 1, Block 1 and Outlot A, Dara Glen, City of Otsego, County of Wright, State of
Minnesota.
B. The property lies within the West Sanitary Sewer Service District and is guided for industrial
land uses by the Otsego Comprehensive Plan, as amended.
C. The property is zoned INS, Institutional District, which allows accredited elementary, middle
and high school education uses as a permitted use.
D. The subject is governed by a PUD -CUP approved by the City Council on 24 September 2007
and an interim use permit for temporary classrooms approved by the City Council on 11 June
2012.
E. The applicant is proposing a 29,598 square foot expansion onto the existing principal
structure requiring amendment of the PUD -CUP and a preliminary/final plat.
F. The Planning Commission and City Council must take into consideration the possible effects.
of the PUD -CUP with their judgment based upon (but not limited to) the criteria outlined in
Section 20-4-2.17 of the Zoning Ordinance:
1. The proposed action's consistency with the specific policies and provisions of the
Otsego Comprehensive Plan.
Finding: The Comprehensive Plan includes the policy that public facilities such as
schools be developed to the highest standards of design and performance to serve
as an example to private development and create a source of community pride and
identity. The existing Kaleidoscope Charter School reflects and is consistent with the
intent of this policy and the expansion of the school is as well.
2. The proposed use's compatibility with present and future land uses of the area.
Finding: The development of Kaleidoscope and the proposed expansion of the
school to include Outlot A was and is considered to be a desirable transitional land
use between the existing and planned residential uses to the south in Kittredge
Crossings and planned future industrial development to the north.
3. The proposed use's conformity with all performance standards contained within the
Zoning Ordinance and other provisions of the City Code.
Finding: The proposed use will comply with the applicable requirements of the
Zoning Ordinance except as may modified by the PUD -CUP approval.
4. Traffic generation of the proposed use in relation to capabilities of streets serving the
property.
Finding: The subject site is served by Kalland Avenue which has been
constructed as a commercial/industrial street connecting to 70th Street. The proposed
use will include additional traffic generation but this traffic will be within the capacity of
existing City streets.
5. The proposed use can be accommodated by existing public services and facilities
and will not overburden the City's service capacity.
Finding: There are adequate City utilities to the subject site and City services
required to accommodate the proposed expansion of Kaleidoscope Charter School.
G. The planning report dated 31 July 2014 prepared by the City Planner, The Planning
Company LLC., is incorporated herein.
H. The Engineering Review dated July 31, 2014 prepared by the City Engineer, Hakanson
Anderson Associates, Inc., is incorporated herein.
The Otsego Planning Commission held a public hearing at their regular meeting on 4 August
2014 to consider the application, preceded by published and mailed notice. Based upon
review of the application and evidence received, the Otsego Planning Commission closed
the public hearing and recommended by a 6-0 vote that the City Council approve the request
based on the aforementioned findings.
DECISION: Based on the foregoing information and applicable ordinances, the request is hereby
APPROVED and is subject to the following conditions:
1. The landscape plan shall be revised to specify seed mixes for turf area and the area of the
proposed stormwater pond and installation of irrigation systems as required by Section 5-7-
3.13.4 of the City Code.
2. A lighting plan must be submitted showing the type, location, height and illumination pattern
for any exterior lighting to be installed on site to verify compliance with Section 20-16-10.0 of
the Zoning Ordinance and is subject to review and approval of the Zoning Administrator.
3. All signs upon the property must comply with Section 37 of the Zoning Ordinance and require
a permit prior to installation.
4. Construction details regarding the materials for the proposed fence surrounding the service
court must be specified and are subject to review and approval by the Zoning Administrator.
5. The applicant shall pay a cash fee in lieu of land of $17,500 to satisfy park and trail
dedication requirements.
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6. The grading plan, preliminary plat and final plat are revised to indicate the wetland buffers
required by Section 20-16-9.E.4 of the Zoning Ordinance and all wetlands and wetland
buffers are to be overlaid by drainage and utility easements.
7. All easements are subject to review and approval of the City Engineer.
8. The applicant shall pay a stormwater impact fee for Otsego Creek based on the area of
Outlot A and all grading, drainage and erosion control issues are subject to review and
approval of the City Engineer.
9. The applicant shall pay utility availability charges for the area of Outlot A as a condition of
final plat approval, pay all utility connection charges as a condition of issuance for a building
permit and all utility plans are subject to review and approval of the City Engineer.
10. The temporary classroom structure shall be removed from the property and the interim use
permit deemed to be terminated within six months from the date of a certificate of occupancy
for the building expansion being issued.
11. The applicant shall enter into a development contract with the City and pay all fees and
provide all securities required by it, subject to review by the City Attorney and approval of the
City Council
12. The site plan shall be subject to review and approval of the Albertville Fire Chief regarding
Fire Code issues.
MOTION BY: Heidner
SECOND BY: Stockamp
ALL IN FAVOR: Heidner, Stockamp, Darkenwald, Schroeder, Warehime
THOSE OPPOSED: None
ADOPTED by the City Council of the City of Otsego this 11th day of August, 2014.
CITY OF OTSEGO
By:
U�
Jes i a L. Stockamp, nAwnr
Attest:_
Tami Loff, City Clerk
CITY OF OTSEGO
COUNTY OF WRIGHT
STATE OF MINNESOTA
RESOLUTION NO. 2014-57
RESOLUTION APPROVING DEVELOPERS AGREEMENT FOR
KALEIDOSCOPE CHARTER SCHOOL ADDITION
WHEREAS, KCS Building Company is seeking approval of a PUD -CUP and
final plat for expansion of the Kaleidoscope Charter School on Outlot A, DARA
GLEN; and
WHEREAS, the PUD -CUP and final plat requires construction of public
improvements and payment of City costs and fees; and
WHEREAS, those obligations are contained and memorialized in the attached
Developers Agreement; and
WHEREAS, the Developers Agreement also sets forth the security required to
assure satisfactory construction of public improvements and establishes the
various remedies available to the City in the event that Developer breaches the
terms and conditions of the Agreement.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of
Otsego, Wright County, Minnesota as follows;
1. The attached Developers Agreement between the City of Otsego and KCS
Building Company is hereby approved in form, subject to modification of
fees, charges and security as approved by City staff.
2. The Mayor and City Clerk are hereby authorized to execute the final
Developers Agreement on behalf of the City of Otsego.
ADOPTED this 25th day of August, 2014 by the City Council of Otsego.
MOTION TO ADOPT the Resolution by Council Member
and seconded by Council Member
IN FAVOR:
OPPOSED:
CITY OF OTSEGO
Jessica Stockamp, Mayor
Tami Loff, City Clerk
0j,
CITY OF OTSEGO
COUNTY OF WRIGHT
STATE OF MINNESOTA
DEVELOPMENT AGREEMENT
-KALEIDOSCOPE CHARTER SCHOOL ADDITION
AGREEMENT entered this _ day of August, 2014 between the City of Otsego (CITY), a municipal
corporation organized under the laws of the State of Minnesota, and KCS Building Company, a company
organized under the laws of the State of Minnesota (DEVELOPER).
This Agreement is executed in conjunction with the purchase of property and construction of an
expansion a public school house to be leased to Kaleidoscope Charter School, a Minnesota public
(charter) school (the Project as defined in the Bond Documents entered into in conjunction with the
issuance on September 9, 2014, of tax-exempt and taxable lease revenue bonds pursuant to which the
financing of the Project was secured.
This Agreement affects the following described real property located in Wright County, Minnesota:
Lot 1, Block 1 and Outlot A, DARA GLEN ADDITION, according to the Plat on file and of record at the
Office of the County Recorder, Wright County, Minnesota.
PUD -CUP and Final Plat APPROVAL. DEVELOPER has submitted a Planned Unit Development -
Conditional Use Permit (PUD -CUP) and Final Plat for Kaleidoscope Charter School Addition for
approval. The application relates to expansion of the existing Charter School. The real property
which is the subject of this Agreement is currently zoned INS- Institutional. The property was
rezoned on September 24, 2007. Also on September 24, 2007, CITY approved the original PUD -
CUP, which included school site and building plans, subject to certain conditions including
execution of a Development Contract between CITY and DEVELOPER dated December 3, 2007.
2. PUD -CUP. The PUD -CUP and Final Plat application were approved by the City Council of the
City of Otsego at their meeting on August 11, 2014, subject to the following conditions:
The landscape plan shall be revised to specify seed mixes for turf area and the area of the
proposed stormwater pond and installation of irrigation systems as required by Section 5-7-
3. B.4 of the City Code
b. Alighting plan must be submitted showing the type, location, height and illumination
pattern of any exterior lighting to be installed on site to verify compliance with Section 20-
16-10.0 of the Zoning Ordinance and is subject to review and approval of the Zoning
Administrator.
c. All signs upon the property must comply with Section 37 of the Zoning Ordinance and
require permit prior to installation.
d. Construction details regarding the material for the proposed fence surrounding the service
court must be specified and are subject to review and approval by the Zoning Administrator.
e. The DEVELOPER shall pay cash fee in lieu of land of $17,500 to satisfy park and trail
dedication requirements.
f. The grading plan, preliminary plat and final plat are revised to indicate the wetland buffers
required by Section 20-16-9.E.4 of the Zoning Ordinance and all wetlands and wetland
buffers are to be overlaid by drainage and utility easements.
g. All easements are subject to review and approval of the City Engineer.
h. The applicant shall pay a stormwater impact fee for Otsego Creek based on the area of
Outlot A and all grading, drainage and erosion control issues are subject to review and
approval of the City Engineer.
i. The DEVELOPER shall pay utility availability charges for the area of Outlot A as a condition of
final plat approval, pay all utility connection charges as a condition of issuance for a building
permit and all utility plans are subject to review And approval of the City Engineer.
j. The temporary classroom structure shall be removed from the property and the interim use
permit deemed to be terminated with six months from the date of issuance of a certificate
of occupancy for the building expansion being issued.
k. DEVELOPER shall enter into a development contract with the CITY and pay all fees and
provide all securities required by it.
3. SEWER AND WATER AVALABILTY CHARGES. DEVELOPER shall be charged for sewer and water
availability in the equivalent of 3.5 RECs per acre for sewer and water availability at the time of
Final Plat approval in accordance with Section 6-1-5.13 and Section 6-1-6.6 of the City Code as
follows:
SAC
5.0 acres x 3.5 RECs per acre = 17.5 REC units x $2,200 per unit = $38,500.00
WAC
5.0 acres x 3.5 RECs per acre = 17.5 REC units x $1,566 per unit = $27,405.00
TOTAL $65,905.00 (credit of $95,424.00) $ 00.00
A credit of $95,424 will be provided against utility availability and connection charges which is
the amount paid when temporary classrooms were installed. The utility connection charges for
sewer and water utilities are to be calculated in accordance with the Metropolitan Council
Environmental Services schedule in accordance with Section 6-1-5.0 and 6-1-6.0 of the City Code
based on the architectural plan for the proposed building and are paid at the time a building
permit is issued. The remaining credit balance ($29,529.00) will be applied to the utility
connection charges.
4. METERS. Meters shall be provided as per City policy.
5. PARK AND TRAIL DEDICATION FEE. DEVELOPER's obligation to pay Park and Trail dedication is 5
gross acres at $3,500 per acre or $17,500.00. CITY will waive that fee if it can reach an
agreement acceptable to CITY for joint use of DEVELOPER's playfields and off-street parking
facilities located on the premises for City recreation program purposes.
6. LANDSCAPING. DEVELOPER has provided CITY and CITY has approved a Landscaping Plan for the
expansion. The Landscaping Plan for property subject to this Agreement shall be placed on file
and of record with CITY. In order to assure that all Landscaping required by this Agreement is
completed in a timely and workmanlike fashion, DEVELOPER shall submit security in the amount
of $ . Said security shall be submitted upon execution of this Agreement and is
included in the security provisions of Paragraph _. In the event that the Landscaping is not
completed in a timely manner, or landscaping is not satisfactorily completed, and upon
reasonable notice to DEVELOPER of any deficiency, CITY may utilize security funds to complete
or cure any deficiencies in landscaping. In the event that security funds must be utilized CITY
may also deduct from the security any costs and disbursements it incurs including, but not
limited to, administrative fees, professional fees and attorney's fees. Landscaping shall be
completed by
7. IMPROVEMENTS. DEVELOPER shall install and/or pay for the following:
A.Parking Lot
B. Street lights
C. Site grading and ponding
D. Underground utilities
E. Sanitary sewer lines
F. Water lines
G. Storm water improvements
H. Setting of lot and block monuments
I. Construction surveying and staking
J. Traffic control signs
Improvements shall be installed in accordance with City standards, ordinances, and the plans
furnished to CITY and approved by the City Engineer. DEVELOPER shall obtain all necessary
permits before proceeding with construction. CITY shall provide adequate field inspection
personnel to assure acceptable quality control, which will allow certification of the construction
work. CITY may, when reasonably required to do so, and at DEVELOPER's expense, have one (1)
or more CITY inspectors and a soil engineer inspect the work. Within thirty (30) days after
completion of the improvements and before all retained security is released , DEVELOPER shall
supply CITY with a complete set of reproducible "as constructed" and an electronic file of the
"as constructed" plans in AutoCAD.DWG file or a .DXF file, all prepared in accordance with CITY
standards. Before the security for the completion of utilities is fully released, iron monuments
shall be installed in accordance with Minnesota Statutes 505.02. DEVELOPER's surveyor shall
submit a written notice to CITY certifying that the monuments are installed following site
grading and utility and street construction.
8. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION, AND LEGAL AND
ADMINISTRATIVE FEES. DEVELOPER shall pay a fee for consulting engineering administration.
CITY engineering administration will include monitoring of construction, observation,
consultation with DEVELOPER and their engineer on status or problems regarding the Project,
and monitoring during the warranty period. Fees for this service are estimated to be three
percent (3%) of the estimated construction cost of the improvements to be inspected (the
"Improvement Costs") assuming normal construction and project scheduling. DEVELOPER shall
pay for construction observation performed by the City Engineer. Construction observation shall
include full or part time inspection of Public Improvements and will be billed at hourly rates
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estimated to be five percent (5%) of the estimated cost of the improvements to be inspected. In
the event of prolonged construction or unusual problems, CITY will notify DEVELOPER of
anticipated cost overruns for administration and observation services. All administrative and
legal fees related to plan review, drafting of any Agreement and other necessary items
(including SAC and WAC charges) shall be paid to CITY prior to execution of the Agreement. Said
amounts are established as follows:
City Construction Administration & Utility Inspection Fees $
(estimated 8% of $ )
City Administrative Fee (1% of $ ) $
Legal Fees (1% of $ ) $
Stormwater Fees $
SAC and WAC $
TOTAL
9. ADMINISTRATIVE FEE. A fee for CITY Administration of the Project shall be paid prior to CITY
executing this Agreement. Said fee shall be one percent (1%) of the estimated construction costs
of the Improvements. The administrative fee for this Agreement is $ , and is contained
within the escrow provisions established in Paragraph 8 of this Agreement. The fee is
immediately available to CITY upon establishment of the escrow.
10. SECURITY. To ensure compliance with the terms of this Agreement, and construction of all
public improvements, and because CITY acknowledges the unique financing of and nature of the
school construction project, as well as the minimal amount of public improvements contained in
the project, CITY agrees to waive its usual requirement of Security in the form of a letter of
credit (or other acceptable Security). In lieu of such letter of credit (or other acceptable
Security), Developer and CITY agree that DEVELOPER shall include the City Engineer as a
recipient of all information required under the Bond Documents regarding draw requests,
Trustee reports, status of construction, amounts paid out and remaining in the Construction
Fund and any other data concerning the construction of the project that the City Engineer may
from time to time reasonably request. For the purposes of memorializing the security required
by CITY for DEVELOPER's Improvements, DEVELOPER and CITY agree that in the event CITY
demands funds for non-performance of or inadequacy of Developer's Improvements, CITY's
demand shall not exceed the following:
Site grading, drainage, erosion and sediment control
And wetland protection
Sanitary Sewer- lateral and trunk
Water main- Lateral and Trunk
Storm Sewer- Lateral
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Parking Lot $
Landscaping $
Engineering & Surveying Construction Services (6.5%) $
TOTAL $
In the event that Improvements listed above are not timely completed. or completed to the
satisfaction of the City Engineer, DEVELOPER shall immediately correct any deficiencies,. If said
deficiencies are not corrected within thirty (30) days' notice from CITY, DEVELOPER shall
transmit funds to CITY so that CITY may complete the Improvements. If such funds are not
transmitted to CITY, any amount resulting from DEVELOPER's deficiencies may be assessed
against Outlot A, DARA GLEN ADDITION payable over a period not to exceed seven (7) years at
an annual interest rate not exceeding one percent (1%) above the most recent Otsego General
Obligation bond at the time said assessment is approved by the City Council. In that event
DEVELOPER hereby knowingly and voluntarily waives any right to any and all hearings, any
irregularities in the proceedings, appeal or challenge of an assessment in the amount of
$ pursuant to Minn. Stat. 429.081, or any other statutory, common law, or Constitutional
provision.
No Certificate of Occupancy shall be issued until such time as all listed Improvements (except
Landscaping) are complete and approved by the City Engineer.
11. EROSION CONTROL. After the site is rough graded, but before any utility construction is
commenced or further building permits are issued, an erosion control plan for the school
expansion site approved by the City Engineer shall be implemented by DEVELOPER and
inspected and approved by CITY. If the City Engineer determines that it would be unreasonable
to require full implementation of the erosion control prior to utility construction or issuance of
building permits, he shall state in writing what construction can take place and what particular
building permits can be issued prior to full implementation. CITY may impose additional erosion
control requirements if, in the reasonable opinion of the City Engineer, they would be beneficial.
All areas disturbed by the excavation and backfilling operations shall be reseeded forthwith
after the completion of the work in that area. If the DEVELOPER does not comply with the
erosion control plan and schedule or any supplementary instructions, the CITY may, with
reasonable notice, take action as it deems appropriate.
12. GRADING PLAN. Lot grading shall be in accordance with the approved grading plan. Within
thirty (30) days after completion of grading and before any security release, DEVELOPER shall
provide CITY with an "as built" grading plan including certification by a registered land surveyor
or Engineer. "As built" plans shall include field verified elevations of all Lot corners.
Occupancy permits shall not be issued until the grading and drainage plan is certified as set forth
above.
13. RIGHT OF ENTRY. DEVELOPER hereby grants to CITY, its agents, employees, officers and
contractors a right of entry to enter the Plat to perform any and all work and inspections
necessary or deemed appropriate by CITY during the installation of improvements by
DEVELOPER or CITY, or to make any necessary corrective actions. Except in emergency
situations, as defined by CITY, CITY shall give DEVELOPER five (5) business days' notice stating
the deficiencies and necessary corrections prior to making any corrective action. Said right of
entry shall continue until CITY finally accepts the improvements and through any applicable
warranty period.
14. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction required by
this Agreement, improvements lying within public easements shall become CITY property
without further action or notice.
15. CLEAN UP. DEVELOPER shall promptly clean any and all dirt and debris from streets resulting
from construction work by DEVELOPER, its agents or assigns.
16. RESPONSIBILITY FOR COSTS.
Except as otherwise specified herein, DEVELOPER shall pay all costs incurred by them or CITY
in conjunction with the development of the project, including, but not limited to, legal,
planning, engineering and inspection expenses incurred in connection with the project, the
preparation of this Agreement, and all costs and expenses incurred by CITY in monitoring
and inspecting the project.
b. DEVELOPER shall hold the CITY and its officers, agents and employees harmless from claims
made by itself or third parties for damages sustained or costs incurred resulting from the
project. DEVELOPER shall fully indemnify CITY and its agents officer and employees for all
costs, damages or expenses which CITY may pay or incur in consequence of such claims,
including attorney's fees, except for liability resulting from intentional or reckless actions of
CITY, it officers, employees or agents.
c. DEVELOPER shall reimburse CITY for costs incurred in the enforcement of this Agreement,
including engineering fees, reasonable attorney's fees, and costs and disbursements.
DEVELOPER shall pay in full all bills submitted to it by CITY for obligations incurred under this
Agreement within thirty (30) days after receipt. If DEVELOPER has a good faith objection to a
billing submitted it shall notify CITY in writing of the nature of its objection and may deposit
the disputed amount in an escrow account pending resolution of the dispute which must
occur within 120 days from the date of notice of the dispute. If bills are otherwise not paid
on time, CITY may halt development work and construction, including but not limited to the
issuance of building permits, until all bills are paid in full. Bills not paid within thirty (30) days
shall accrue interest at the rate of twelve percent (12%) per year.
17. DEVELOPERS DEFAULT. In the event of default by DEVELOPER as to any of the improvements or
landscaping to be performed by it hereunder, CITY may, at its option, perform the work and the
CITY may then exercise any recourse available to it pursuant to Paragraph 10 of this Agreement
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to pay for any work undertaken, provided DEVELOPER is first given notice of the work in default,
not less than fourteen (14) days in advance and is provided an opportunity to cure any default.
This notice provision does not apply if the work performed by CITY or its contractors is of an
emergency nature, as determined at the sole discretion of CITY. Should emergency work be
required, the City will make all reasonable efforts to notify DEVELOPER as soon as possible.
When CITY does any such work, CITY may, in addition to its other remedies, assess the cost in
whole or in part pursuant to any applicable statutes or ordinances.
18. DEVELOPER TO PAY ALL COSTS. It is understood and agreed that amounts set forth in this
Agreement as costs, unless specifically specified as fixed amounts, are estimated. DEVELOPER
agrees to pay the actual costs, provided the costs are consistent with preliminary cost estimates
and associated with the proposed development together with platting costs, interest,
administrative, engineering and legal costs.
19. MISCELLANEOUS.
a. Third parties shall have no recourse against CITY under this Agreement, except for
permitted assignees as approved by CITY.
b. Breach of any of the terms of this Agreement by DEVELOPER shall be grounds for denial or
revocation of building permits.
c. If any portion, subsection, sentence clause, paragraph or phrase of this Agreement is for any
reason held invalid, such decision shall not affect the validity of the remaining portion of this
Agreement.
d. If building permits are issued prior to the completion and acceptance of Public
Improvements, DEVELOPER shall assume all liability for the costs resulting in any delay in
completion of Public Improvements and damage to any public improvements caused by
CITY, DEVELOPER, its contractors, subcontractors, materialmen, employees, agents, or third
parties.
e. The action or inaction of CITY shall not constitute a waiver or amendment to the provisions
of this Agreement. 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 Agreement shall not be a waiver or release.
This Agreement shall run with the land, shall be recorded against the title to the property,
and shall be binding on all parties having any right, title or interests in the plat or any part
thereof, their heirs, successors and assigns. After DEVELOPER has completed the work
required of them under this Agreement, at DEVELOPER's request, CITY will execute and
deliver to DEVELOPER a release of this Agreement.
g. Each right, power or remedy herein conferred upon 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 other 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 CITY and shall not be a
waiver of the right to exercise at any time thereafter any other right, power or remedy.
Should development of the project proceed at a pace slower than anticipated, and for that
reason, specific terms of this Agreement become onerous or unduly burdensome to
DEVELOPER, upon its application, CITY will enter into negotiations regarding those specific
terms and shall not unreasonably withhold consent to appropriate changes in the terms of
this Agreement.
i. DEVELOPER shall demonstrate compliance with the 1991 Wetland Conservation Act.
j. DEVELOPER shall be responsible for all on site drainage and ensure all on-site drainage
drains into publically dedicated storm water easement area. Specifically, DEVELOPER shall
be responsible for any and all drainage problems related to on-site drainage facilities to be
constructed in accordance with this Agreement.
20. NOTICES. Required notices to DEVELOPER shall be in writing, and shall be either hand delivered
to DEVELOPER, it employees or agents, or mailed to DEVELOPER by registered mail at the
following address: KCS Building Company, Attn: '7275 Kalland Street, Otsego,
MN 55301. Notice to CITY shall be in writing and shall be either hand delivered to the City Clerk
at the following address: City of Otsego, 13400 901h Street NE, Otsego, MN 55330.
21. VIOLATION OF AGREEMENT. If, while the security provided pursuant to Paragraph _ of this
Agreement is outstanding, a violation of any of the covenants, terms, conditions or agreements
herein contained occurs and such violation is not cured within thirty (30) days after written
notice thereof from CITY to the offending party, CITY May draw upon the Escrow items security
and apply the amount so drawn to pay for said Escrow Items to the extent of security so
provided pursuant to Paragraph 10 thereof.
22. WARRANTY. DEVELOPER warrants that any improvements required to be performed by it
against poor material and faulty workmanship for a period of one (1) year after its completion
and acceptance by CITY.
23. MAINTAIN PUBLIC PROPERTY DAMAGED OR CLUTTERED DURING CONSTRUCTION. DEVELOPER
agrees to assume full financial responsibility for any damage which may occur to public property
including, but not limited to, street, street subbase, base, bituminous surface, curb, utility
system including, but not limited to, water main, sanitary sewer or storm sewer when said
damage occurs as a result of the activity on the project, except for damage caused by CITY its
employees, agents or contractors. DEVELOPER further agrees to pay all costs required to repair
the streets and/or utility systems damaged or cluttered with debris when occurring as a direct
or indirect result of construction on the project. In the event DEVELOPER fails to maintain or
repair the damaged public property referred to aforesaid, CITY may, upon notifying DEVELOPER
in writing and providing reasonable time period to abate the situation, undertake making or
causing it to be repaired or maintained. When CITY undertakes such repair, DEVELOPER shall
reimburse CITY for all of its expenses within fourteen (14) days of its billing to DEVELOPER. If
DEVELOPER fails to pay said bill within fourteen (14) days, the Security shall be responsible for
reimbursing CITY.
24. AGREEMENT EFFECT. This Agreement shall be binding and extend to the respective
representatives, heirs, successors and assigns of the parties hereto.
CITY OF OTSEGO
Jessica Stockamp, Mayor
Tami Loff, City Clerk
KCS BUILDING COMPANY
M
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
On this _ day of August, 2014, before me personally appeared
Jessica Stockamp and Tami Loff to me know as the persons
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described in the foregoing instrument as Mayor and City Clerk
of the City of Otsego, a Minnesota municipal corporation with authority
and on behalf of the City of Otsego.
NOTARY PUBLIC
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
On this day of August, 2014, before me personally appeared
to me known as the of KCS
Building Company, a Minnesota Company with authority and on behalf of
The Company.
NOTARY PUBLIC
DRAFTED BY:
MACARTHUR LAW OFFICE, LLC
3601 Thurston Avenue North
Suite 103
Anoka, MN 55303
763-231-5850
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