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
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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
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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.