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RES 14-64CITY OF OTSEGO COUNTY OF WRIGHT STATE OF MINNESOTA RESOLUTION NO. 2014-64 RESOLUTION APPROVING DEVELOPERS AGREEMENT- BOULDER CREEK WHEREAS, Mattamy (Minneapolis) Partnership is seeking approval of a Plat known as BOULDER CREEK; and WHEREAS, the approved 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 Mattamy (Minneapolis) Partnership 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 22nd day of September, 2014 by the City Council of Otsego. MOTION TO ADOPT the Resolution by Council Member Heidner and seconded by Council Member Warehime. IN FAVOR: Stockamp, Heidner, Warehime, Schroeder OPPOSED: None CITY OF OTSEGO Kim, j I ,, WXA 00full"ll"611% -,(ffj p1mv �\ Taml Loff, City Clerk DEVELOPMENT AGREEMENT BOULDER CREEK AGREEMENT entered into this r day of September, 2014 between the City of Otsego ("City"), a municipal corporation organized under the laws of the State of Minnesota, and Mattamy (Minneapolis) Partnership, a general partnership under the laws of the State ofMinnesota (`Developer'). 1. Request for Plat Approval. The Developer has requested that the City approve that plat entitled BOULDER CREEK. The legal description of the property covered by this Agreement is as bllows: See Exhibit A The Plat contains one hundred and six (106) single family residential lots. The plat is located within the City's East Sewer District, is zoned R-5, Single and Two Family Residential District as approved by Ordinance adopted by the City Council on July 14, 2014. The Plat is further governed by the stipulations of a Planned Unit Development - Conditional Use Permit (PUD -CUP) approved bythe City Council on July 14, 2014 2. Conditions of Plat Approval. The City hereby approves the Plat on condition that the Developer enter into this Agreement, furnish the security required by it, and record the Agreement with the Wright County Recorder or Registrar of titles within one hundred (100) days after the City Council approves the Agreement. The Developer shall cooperate with the City in recording the Agreement and all required additional deeds and documents and providing assurance that the Agreement and all required documents have been properlyand timelyrecorded. 3. Right to Proceed. Within the Plat, the Developer ma}not grade or otherwise disturb the earth, remove trees, construct sewer lines, storm sewers, water lines, streets, utilities, public or private improvements, or any buildings or structures until all the following conditions have been satisfied: 1) this Agreement has been fully executed by both parties and filed with the City Clerk, and all conditions contained in the Agreement have been met, 2) the necessary security has been received by the City, 3) this Agreement has been recorded with the Wright County Recorder's Office, 4) The Developer has initiated and attended a pre -construction meeting with the City Engineer, and 5) the Zoning Administrator has issued a letter that all conditions have been satisfied and that the Developer may proceed; or until such time as approval to commence earlier construction is specifically approved by the City, and Developer has fully complied with all conditions set forth by City staff. 4. Sanitary Sewer Service Allocation. The allocation of sanitary sewer service to the one hundred and six (10 6) lots within the Plat does not occur until all required utility availability charges have been paid to CITY and security required by this Agreement has been posted. 5. Changes in Official Controls. BOULDER CREEK is a planned and staged development within the meaning of Minn. Stat. 462.358, Subd. 3c, and no amendment to the City's Comprehensive Plan or other Official Controls shall apply to or affect the use, development density, lot size, lot layout, or platting requirements for BOULDER CREEK for a period of eight (8) years. Thereafter, notwithstanding anything in this Agreement 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, other Oficial Controls enacted afer the date of this Agreement. This provision does not apply to regulations or Official Controls related to park and trail dedication or any fee established by the City chargeable to the Developer for municipal costs arising fom said future phases. 6. Development Plans. The Plat shall be developed in accordance with the plans on file at the office of the City Clerk and the conditions stated below. If the plans vary from the written terms ofthis Agreement, the written terms shall control. The plans are: Plan A Final Plat, BOULDER CREEK prepared byCarlson McCain. Plan B Grading, Drainage, and Erosion Control Plan prepared by Carlson McCain and as finally approved bythe City Engineer. Plan C Sanitary Sewer, Water Main, Storm Sewer and Streets Plans for BOULDER CREEK, as prepared by Carlson McCain and as finally approved by the City Engineer. Plan D Landscape Plan for BOULDER CREEK, prepared by Carlson McCain, and as finally approved by the City Zoning Administrator. W 7. Improvements. The Developer shall install and/or pa}for the following: A. Streets B. Street lights C. Site grading and ponding D. Underground installation ofall utilities E. Sanitary sewer lines F. Water lines G. Storm water management improvements H. Setting of lot and block monuments I. Construction surveying and staking J. Traffic control signs K. Landscaping. Improvements shall be installed in accordance with City standards, the City Code, and the above -referenced plans that have been furnished to the City and approved by the City Engineer. The Developer shall obtain all necessary permits before proceeding with construction. The City shall provide adequate field inspection personnel to assure acceptable quality control, which will allow certification of the construction work. The City may, when reasonably required to do so by the City Engineer, and at the Developer's expense, have one (1) or more City inspectors and a qualified engineer inspect the work. Within thirty (30) days after the completion of the improvements and before all retained security is released, the Developer shall supply the 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. The Developer's surveyor shall submit a written notice to the City certifying that the monuments are installed following site grading, utility and street construction. 8. 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 twenty five percent (25%) ownership interest or in which they are an officer or director may not act as contractors or subcontractors for the public improvements identifed in Paragraph 7 above. 9. Permits. The Developer shall obtain or require its contractors and subcontractors to obtain all necessarypermits, which mayinclude, but are not limited to: A. Wright County for County Road access and work in County right of way. B. MNDOT for State HighwayAccess C. MNDOT for work in right ofway D. Minnesota Department ofHealth for watermains E. MPCA NPDES Permit for construction activity F. MPCA for sanitary sewer and hazardous material removal and disposal G. DNR for dewatering H. City of Otsego for building permits I. City of Otsego for sanitary sewer connections J. City of Otsego for retaining walls 10. Dewatering. Due to the variable nature of groundwater levels and stormwater flows, it will be the Developer's and the Developer's contractors and subcontractors responsibility to satisfy themselves with regard to the elevation of groundwater in the area and the level of effort needed to perform dewatering and storm flow routing operations. All dewatering shall be in accordance with all applicable County, State, and Federal rules and regulations. DNR regulations regarding appropriations permits shall be strictly followed. 11. Time of Performance. The Developer shall install all listed improvements by September 31, 2015, with the exception of the final wear course of asphalt on streets and landscaping. The final wear course on streets shall be installed between August 15th and October 15th the first summer after the base layer of asphalt has been in place one freeze thaw cycle. The Developer may request an extension of time from the City to be submitted in writing to the City Clerk, for which said, extension shall be conditioned upon updating the security posted by Developer to reflect cost increases and the extended completion date. Final wear course placement outside of the above time frame must have the written approval of the City Engineer. The City may impose additional conditions on the extension necessary to ensure performance. 12. Right of Entry. The Developer hereby grants to the City, its agents, employees, officers and contractors an irrevocable right of entry to enter the Plat to perform any and all work and inspections necessary or deemed appropriate by the City during the installation of improvements by Developer or the City, or to make any necessary corrective actions necessary by the City. Except in emergency situations, as defined by the City, the City shall give the developer thirty (30) business days notice stating the deficiencies and necessary corrections prior to making any corrective action. Said right of entry shall continue until the City finally accepts the improvements and any applicable warranty period has expired. 13. Erosion Control. Prior to initiating site grading, and before any utility construction is commenced or further building permits are issued, the erosion control plan, Plan B, shall be implemented by the Developer and inspected and approved by the City. If the City Engineer determines that it would be unreasonable to require full implementation of the erosion control plan prior to utility construction or issuance of certain building permits, he shall state in writing what construction can take place and what particular 4 building permits can be issued prior to full implementation. The City may impose additional erosion control requirements if, in the 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 and opportunity to cure, take action as it deems appropriate. 14. Grading Plan. Plat grading shall be in accordance with the approved grading plan, Plan B. The plan shall conform to City specifications and the City Code. Ponds, swales, and ditches shall be constructed on public easements or land owned by the City. Within thirty (30) days after completion of grading and before any retained security is fully released, the Developer shall provide the Citywith an "as built" grading plan including certification by a registered land surveyor or qualified engineer that all ponds, swales, and ditches have been constructed on public easements or land owned by the City. "As built" plans shall include field verified elevations ofthe following: A. Cross sections ofponds B. Location and elevations ofswales and ditches C. Lot corners and house pads Occupancy permits shall not be issued by the Building Official until the grading and drainage plan is certifed as set forth above. 15. Clean Up. The Developer shall promptly clean any and all dirt and debris from streets and construction sites in accordance with the City Code resulting from construction work bythe Developer, its agents or assigns. 16. Ownership of Improvements. Upon acceptance by the City Council of the work and construction required by this Agreement, improvements lying within public easements and public right-of-way shall become City property without further notice or action. 17. Streets. The Developer agrees to maintain the streets in the Plat 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 snow plowing be necessary prior to street paving, the Developer shall be responsible for such plowing as may be required by the Streets Supervisor. If, upon the Developer's request, the City agrees to plow the street prior to acceptance, such work will be done upon agreement that the Developer will hold harmless and indemnify the City from any and all liability claims related to such work and pay all costs associated with that work. Any plowing undertaken by the City will constitute no acceptance or evidence of acceptance of the street(s) in question. Upon final completion of streets and acceptance by the City as a City street rather 5 than a private drive, the Developer shall guarantee to the City for a period of two (2) years that 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 set forth above commences upon the date on which the Cityaccepts the streets byresolution. 18. Sewage Treatment. No occupancy permit for any building within the Plat will be issued by the City unless the Building Official has inspected both the sewer and water connections to the building and has certified that they have been constructed satisfactorily in accordance with Cityspecifications and the CityCode. 19. Administrative Fee. A fee for City Administration of this project is one percent (1%) of estimated construction costs ofthe City Improvements, or $22,950.00. 20. Sewer Availability Charges. The Sewer Availability Charges for the Plat due upon Final Plat approval is as fillows; 106 lots at $2,200.00 per REC = $ 233,200.00. 21. Sewer Connection Fees. Sanitary sewer connection fees are paid at the time of issuance of a building permit. The applicable amount due per unit shall be the fee per REC unit in place at the time ofapplication for a building permit. 22. Water Availability Charges. The Water Availability. Charges for the Plat due upon Final Plat approval is as follows: 106 lots at $1,566.00 per REC = $ 154,996.00, which includes a credit of$11,000.00 for watermain construction. 23. Water Connection Fees. Water connection fees are paid at the time of issuance of a building permit. The applicable amount due per unit shall be the fee per REC unit in place at the time ofapplication for a building permit. 24. Park and Trail Dedication. The Park and Trail Dedication for the Plat has been reduced due to land dedication in accordance with the preliminary plat approved by the City Council on July 14, 2014. The cash fee in lieu of land dedication for this Plat is as follows; 106 lots x $1,410.00 per lot = $149,460.00. This amount is deferred in anticipation of the dedication of land and site improvements within Outlot F to be provided by Developer in a subsequent phase which would eliminate this charge. 25. Storm Water Management Fee. Developer shall pay a Stormwater Charge for LeFebvre Creek as b1lows: 40.26 acres x $2,145.00 per.gross acre = $86,357.70. 26. Transportation Infrastructure Cost. The transportation infrastructure cost for this Plat is as allows: 106 lots x 1,405.00 per lot =148,930.00. 27. Street and Traffic Control Signs. Before the City signs the final plat, the Developer shall pay to the City $6,500.00 for installation of traffic control signs (stop signs, street signs, dead-end signs). The said amount was calculated as follows: 26 signs at $250.00 per sign. Using these funds, the City shall purchase and install the street and traffic control signs. 28. Street Light Construction. The Developer shall pay for the operation and maintenance of the street lights for a period of two (2) years. In order to facilitate payment for operation and maintenance of street lights, the Developer shall submit a fee to be included within the escrow and fees established in Paragraph 27 of this Agreement calculated as follows: 9 lights x $2,000.00 per light for a total payment of $ 18,000.00. The operation and maintenance of the street lights by the City shall not commence until such time as the street lights are actually constructed. Street lighting shall conform to adopted City Code. 29. City Engineering Administration and Construction Observation, Legal Fees Escrow and City Fees. 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 Plan C 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 hourlyrates actuallyrequired for said inspection, which are estimated to be five percent (51/o) of the estimated construction cost of the Plan C 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 bythe 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 further in this Paragraph 29), 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), Transportation Infrastructure Costs (a flat fee due upon execution of this Agreement), Park and Trail Dedication Fees (a flat fee due upon execution of this Agreement), Street Light Maintenance and Operation Fee (a flat fee due upon execution ofthis Agreement) and shall be established as dhows: Engineering Services Escrow 8% of $ $1,953,500.00 $156,280.00 Legal Services Escrow 1% of $2,294,980.00 $22,950.00 City Administration Fee 1% of $2,294,980.00 $22,950.00 Street Signs 26 at $250.00 per sign $6,500.00 Street Lights 9 at $2,000.00 per light $18,000.00 Sewer AvailabilityCharge 106 lots at $2,200.00 per REC $233,200.00 Water Availability Charge 106 lots at $1,566.00 per REC- 11,000.00 credit $154,996.00 Stormwater Impact Charge 40.26 acres x $2,145 per gross acre $86,357.70 Transportation Charge 106 lots at $1,410.00 per lot. $148,930.00 Park and Trail Dedication Fee deferred $00.00 TOTAL $850163.70 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. 30. Security. To ensure compliance with the terms of this Agreement, and construction of all public improvements, the Developer shall furnish the City with a cash escrow or Irrevocable Standby Letter of Credit with automatic renewal provisions in the amount of $2,868,725.00, said amount calculated as 61lows: Site grading, erosion control and wetland protection $174,000.00 Sanitary sewer (lateral &trunk) $704,000.00 Watermain lateral &trunk $405,000.00 Stormsewer (lateral) $260,000.00 Streets $584,500.00 Landscaping $40,500.00 Engineering services $126,980.00 SUBTOTAL $29294,980.0 0 25% additional security $573,745.00 TOTAL $258689725.0 0 The issuer and form of the security (other than cash escrow) shall be subject to City approval. 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 s ability to draw on the security at a bank or branch bank located within fifty (50) miles of the City Hall or by mail. The security shall be for a term ending October 1, 2015 and shall contain an automatic renewal provision. The City may draw down the security for any violation of the terms of this Agreement, or upon receiving notice of the pending expiration of the security. It shall be the responsibility of the Developer to inform the City at least thirty (30) days prior to expiration of the security of the impending expiration and the status of the project relative to the security and this Agreement. If, for whatever reason, the security lapses prior to complete compliance with this Agreement (other than during any warranty period), the Developer shall immediately provide the City with either an extension of the security or an irrevocable letter of credit of the same amount upon notification of the expiration. If the required improvements are not completed at least thirty (30) days prior to the expiration of the security, the City may also draw down the security. If the security is drawn down the proceeds shall be used to cure an3default. 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, the security may be reduced from time to time down to $361,225.00, which is the amount of warranty security. A warranty security in the amount of $361,225.00 shall be posted with the City as set forth in paragraph 34 of this Agreement. The warranty period shall be a twelve (12) month period after the applicable work has been completed. Notwithstanding the posting of that warranty security, the security shall not be reduced below ten percent (10%) of the posted securityuntil all Improvements have been completed, all financial obligations to the City satisfied (which includes posting of warranty security), and the required "as built" plans have been received by the City. The intent of this Agreement is that the City shall have access to sufficient security, either security or warranty security, to complete the project and insure warrant)on all public improvements at all times. This security amount shall be submitted to the City prior to execution of the 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. The security for this Agreement shall be an Irrevocable Standby Letter of Credit with automatic renewal provisions conforming to the requirements of this Paragraph or cash in the amount of$2,868,725.00. 31. Landscaping. The Developer shall install upon and/or adjacent to each lot within the Plat of a species approved by the Zoning Administrator in accordance with the approved Landscape Plan. These plantings may not be installed in a public right-of-way unless approved by the Zoning Administrator in compliance with the City Code. Any security posted for this agreement or prior additions may be used to cure any defects in the event that the Developer, it assigns or successors fail to install landscaping according to this Agreement. Landscaping security to insure compliance with the approved Landscape Plan 9 shall be $1,000 per lot to be posted with the City at the time of application for a building permit on each lot. Any trees which can cause a public nuisance or public hazard, such as bug infestation or weak bark, are specifcally prohibited. The Developer, Builders or Property Owners (applicant for building permit) in the residential lot area shall sod all front yards within the buildable portion of each lot and shall post any security required by the City to assure landscaping or other items in compliance with the City Code at the time of application for a building permit on each lot. The Developer, Builder or Property Owner shall provide not less than six (6) inches of topsoil in required front yards or side yards abutting public rights-of-way. Where slopes lie in excess of ten (10) percent, sodding (staked) shall be required. Weather permitting, the trees, grass seed and sod shall be planted before Certificates of Occupancy are issued. All grass seed shall be maintained so that turfis established within one (1) 3car of planting. If landscaping as required by the City Code and this Agreement is not timely completed, the City, after reasonable notice and opportunity to cure, may enter the lot or lots, perform the work, and apply any posted security toward the cost. The Developer, it assigns or successors, Builder or Property Owner will provide will provide all trees, grass, seed and sod within the Plat and shall maintain said plantings and warrant them to remain alive, of good quality and disease free for twelve (12) months after planting. Any replacement shall be warranted fir twelve (12) months from the time ofplanting. Developer is also required to implement a Landscaping Plan including boulevard landscaping along City streets as well as designated other plantings. Security shall be posted in order to insure compliance with the approved Landscaping Plan. 32. Significant Trees. There are no significant trees within the Phase. The Developer is not required to replace anysignificant trees. 33. Meters. Meters shall be provided as per Citypolicy. 34. Warranty. The Developer warrants all work 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 the City. The amount of posted warranty security for public improvements to be posted by the Developer shall be in the amount of $361,225.00. The amount, has been determined by the City Engineer, and is based upon the costs of the raw materials and labor which would be necessary to correct the most common deficiencies in such public improvements. 35. Claims. The Developer shall pay any subcontractor within ten (10) days of the Developer's receipt of payment by the City for undisputed services provided by the subcontractor. In the event that the City receives claims from labor, materialmen, or others that perform work required by this Agreement, which is provided to real property owned by the City, and the sums due them have not been paid, and the laborers, materialmen or others 10 are seeking payment from the City, the Developer hereby authorizes the City to commence an interpleader action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Courts, to draw upon the letters of credit in an amount up to one hundred twenty- five percent (125°/x) of the claim(s) and deposit the funds in compliance with the Rule, and upon such deposit, the Developer shall release, discharge, and dismiss the City from any further proceedings as it pertains to the letters of credit deposited with the District Court, except that the Court shall retain jurisdiction to determine attorney fees pursuant to this Agreement. In the event that the Developer desires to make a cash deposit instead of drawing down the letter of credit if a claim is made as stated above, they shall immediately notify the City of this intent at the time the claim is made and shall delivery one hundred twenty-five percent (1251/6) of the claim to the City within ten (10) days of such notice in the form of cash or certified check. 36. Restrictions. The following restrictions apply to the property and all lots thereon shall be held, sold, and conveyed subject to the following conditions and restrictions, which are for the purpose of protecting the value and desirabilityof the Plat and insuring that all conditions imposed by the City in this Agreement are properly recorded against the property. Said conditions shall run with the real property and be binding on all parties having a right, title or interest in the plat or any part thereof their heirs, executors, representatives, successors and assigns: None. 37. Responsibility for Costs. A. Except as otherwise specified herein, the Developer shall pay all costs incurred by them or the City in conjunction with the development of the Plat, including, but not limited to, legal, planning, engineering, and inspection expenses incurred in connection with development of said Plat, the preparation of this Agreement, 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 and employees harmless from claims made by itself and third parties for damages sustained or costs incurred resulting from Plat development, except for negligence of City, the Developer shall indemnify the City and its officers and employees for all costs, damages or expenses which the City may pay or incur in consequence of such claims, including attorney's fees. C. The non -prevailing party shall reimburse the prevailing party for costs incurred in the enforcement of this Agreement, including engineering fees, attorney's fees, and costs and disbursements. D. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Agreement within thirty (3 0) days after receipt, unless the Developer is in good faith and with all due diligence disputing the payment of the same. If the bills are not paid 11 on time, the City may, after notice and a reasonable period of time to cure said default, halt all plat development work and construction, including but not limited to the issuance of building permits for lots which the Developers may or may not have sold, until all bills are paid in full. Claims not paid within thirty (30) days shall accrue interest at the rate of twelve percent (12°) per year. 38. 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 City may then draw down the security established in Paragraph 17 to pay for any work undertaken, provided the Developer is first given notice of the work in default, not less than seven (7) days in advance and a reasonable period of time to cure said default. This notice provision does not apply if the work performed by the City or its contractors is of an emergency nature, as determined at the reasonable discretion of the city. Should such emergency work be required the City will make all reasonable efforts to notify the Developer as soon as possible. When the City does any such work, the City may, in addition to its other remedies, assess the cost in whole or in part pursuant to any applicable statutes or ordinances. 39. Miscellaneous. A. The Developer represents to the City that to best of its knowledge, 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 except where specifically excluded by this agreement. If the City determines that the Phase 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 Agreement. C. Breach of any of the terms of this Agreement by the Developer shall be grounds for denial or revocation ofbuilding permits. D. If any portion, section, 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 ofthis Agreement. E. If building permits are issued by the City prior to the completion and acceptance of public improvements, the 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 the City, the Developer, its contractors, subcontractors, materialmen, employees, agents, or third parties. No one may occupy a building for which a building permit is issued on either a temporary or permanent 12 basis until the streets needed for access have been paved with a bituminous surface, unless a specific exception is approved by the City. F. The action or inaction of the 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. G. This Agreement shall run with the land, shall be recorded against the title to the property and all properties therein established by the Plat, and shall be binding on all parties having any right, title or interests in this phase of the plat or any part thereof their heirs, successors, and assigns. After the Developer has completed the work required of them under this Agreement as set forth in Section 8, at the Developer's request, the City will execute and deliver to the Developers a release or partial release (s) ofthis Agreement. H. The Developer shall take out and maintain until one (1) year after the City has accepted the public improvements, public liability and property damage insurance covering personal injury, including death, and any claims for property damage which may arise out of the Developer's work or the work of their subcontractors or by one directly or indirectly employed by any of them. Limits for bodily injury and death shall not be less than $500,000.00 for one person and $1,000,000.00 for each occurrence; limits fir propertydamage shall be not less than $200,000.00 for each occurrence. The City shall be named as an additional named insured on said policy, and the Developer shall file a copy of the insurance coverage with the City prior to the Cityissuing further building permits. I. Each right, power or remedy herein conferred upon the City is cumulative and in addition to every other right, power or remedy, express or implied, now or hereafter arising, available to City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at anytime thereaffer any other right, power or remedy J. The Developer shall pay for all local costs related to drainage improvements required to complete the construction according to the plans and conditions that are a part o$his Agreement. K. Should development of the plat proceed at a pace slower than anticipated, and for that reason, specific terms of this agreement become onerous or unduly burdensome to the Developers, upon his/her application, the City will enter into negotiations regarding 13 those specific terms and shall not unreasonably withhold consent to appropriate changes in the terms o$his Agreement. L. The Developer shall demonstrate and maintain compliance with the 1991 Wetland Conservation Act. M. The Developer shall be responsible for all on site drainage as well as for any affects that their actions may have on adjoining properties. Specifically, the Developer shall maintain existing drainage tiles on site, and shall be responsible for any and all drainage problems related to either the site drainage tiles or problems with on-site drainage facilities to be constructed in accordance with this agreement and plat approval. 40. Notices. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, their employees or agents, or mailed to the Developer by registered mail at the following address: Attention: Rick Packer (or his successor), Mattamy (Minneapolis) Partnership, 7201 Washington Avenue South, Edina, MN 55439. Notice to the City shall be in writing and shall be either hand delivered to the City Clerk at the following address: City of Otsego, City Hall, 13400 90th Street NE, Otsego, MN 55330, Attention: CityClerk 14 CITY OF OTSEGO I _ BY: W ssica Stockamp, Mayor BY: Tami Loff, City Clerk MATTAMY (MINNEAPOLIS) PARTNERSHIP DEVELOPER BY: R ger Moritz, collreAdent Calben (Unesota orporation Its: General Partner STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of 2014, by Jessica Stockamp, Mayor and by Tami Loff, City Clerk, of the City Otsego, a Minnesota municipal corporation, on behalf of the City and pursuant to the authority of the City Council Notary Public E R' �� NOTARY PUBLIC - MINNESOTA OT res hn. 31 01 15 STATE OF MINNESOTA ) ^) ss. COUNTY OF Oe Me P 1 �\) The foregoing instrument was acknowledged before me this I flay of `V M bk V 2014 by Roger Moritz, the Vice President of Calben (Minnesota) Co oration, a Minnesota corporation and General Partner of Mattamy (Minneapolis) Partnership with authorityand on behalfof the partnership. DRAFTED BY: MACARTHUR LAW OFFICE, LLC 3601 Thurston Avenue North Suite 103 Anoka, MN 55303 (763) 231-5850 16 Notary Public WL1i1B EXHIBIT A- LEGAL DESCRIPTION The East Half of the Southeast Quarter of the Northwest Quarter of Section 27, Township 121, Range 23, Wright County Minnesota. AND The South 1/3 of the West Half of the Northeast Quarter of the Southwest Quarter and the West Half of the Southeast Quarter of the Southwest Quarter, Section 27, Township 121, Range 23, Wright County Minnesota. EXCEPT The West 450 feet of the South 290.4 feet of the West Half of the Southeast Quarter of the Southwest Quarter AND EXCEPT The North 322.67 feet of the South 1216.44 feet of the West 135 feet of the West V2 of the Southeast'/ of the Southwest'/� Section 27, Township 121, Range 23 AND EXCEPT The North 72.60 feet of the South 363.00 feet of the West 300.00 feet of the West Half of the Southeast Quarter ofthe Southwest Quarter ofSection 27 AND The East % of the West 3/ of the North 2/3 of the North Half of the Southwest Quarter, Section 27, Township 121, Range 23, Wright CountyMinnesota. The North 322.67 feet of the South 1216.44 feet of the West 135 feet of the West Half of the Southeast Quarter of the Southwest Quarter, Section 27, Township 121, Range 23, Wright County, Minnesota. Together with ingress, egress and utility easement over, under and across the South 1000.00 feet of the East 25.00 feet of the East Half of the Southwest Quarter of the Southwest Quarter ofSection 27. - AND The East Half of the Southwest Quarter of the Southwest Quarter and the South 1/3 of the East Half of the Northwest Quarter of the Southwest Quarter of Section 27, Township 121, Range 23, Wright County Minnesota. 17 EXCEPT That part of the East Half of the Southwest Quarter of the Southwest Quarter of Section 27, Township 121 , Range 23, Wright County, Minnesota lying Westerly of the line drawn from point on the South line of said East Half of the Southwest Quarter of the Southwest Quarter distant 11.37 feet East from the Southwest corner of said East Half of the Southwest Quarter of the Southwest Quarter to a point on the North line of said East Half of the Southwest Quarter of the Southwest Quarter distance 74.00 feet East from the Northwest corner of said East Halfof the Southwest Quarter ofthe Southwest Quarter. AND The West Half of the Southwest Quarter of the Northeast Quarter and East Half of the Southwest Quarter, Section 27, Township 121, Range 23, Wright CounWnnesota. EXCEPT That part of the Southeast Quarter of the Southwest Quarter of Section 27, Township 121, Range 23, described as follows: beginning at a point on the South line of said Section a distance of 69.06 feet West of the South Quarter corner of said Section; thence West along said South line 200 feet; thence North at right angles 217.8 feet; thence East parallel with said South line 200 fret; thence South 217.8 tet, more or less, to point ofbeginning.