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RES 15-18CITY OF OTSEGO COUNTY OF WRIGHT STATE OF MINNESOTA RESOLUTION NO. 2015-18 RESOLUTION APPROVING DEVELOPERS AGREEMENT- OTSEGO WILDFLOWER MEADOWS 5TH ADDITION WHEREAS, Meridian Land Holdings, LLC is seeking approval of a Plat known as WILDFLOWER MEADOWS 5TH ADDITION, and WHEREAS, the approved Plat requires construction of some public improvements and payment of City costs and fees as well as placing certain restrictions on the development; 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 Meridian Land Holdings, LLC is hereby approved, subject to Staff approved changes. 2. The Mayor and City Clerk are hereby authorized to execute the Developers Agreement on behalf of the City of Otsego. ADOPTED this 13th day of April, 2015 by the City Council of Otsego. MOTION TO ADOPT the Resolution by Council Member Heidner and seconded by Mayor Stockamp IN FAVOR: Stockamp, Heidner, Schroeder, Warehime OPPOSED: None CITY OF OTSEGO (�k ��w qA-pCk0--1P-K Jes 'ca Stockamp, Mayor Tami Loff, City Clerk 2 DEVELOPMENT AGREEMENT WILDFLOWER MEADOWS 5TH ADDITION AGREEMENT entered into this day of February, 2015 between the City of Otsego ("City"), a municipal corporation organized under the laws of the State of Minnesota, and Meridian Land Holdings, LLC, a Delaware Limited Liability Company ("Developer"). 1. Request for Plat Approval. The Developer has requested that the City approve a plat entitled WILDFLOWER MEADOWS 5TH ADDITION (referred to in this Agreement as "the Plat") and legally described as follows: Outlot D, WILDFLOWER MEADOWS 3RD Addition, according to the Plat on file and of record at the Office of the County Recorder, Wright County, Minnesota. The plat contains 14 (fourteen) single family residential lots and one (1) outlot. The plat is located within the City's East Sewer District, is zoned R-6, Medium Density Residential District as approved by Ordinance adopted by the City Council on October 11, 1999. The Preliminary Plat and PUD -CUP for WILDFLOWER MEADOWS was approved by the City Council on March 13, 2006. 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 Plat with the Wright County Recorder or Registrar of titles within one hundred (100) days after the City Council approves the final plat. The Developer shall cooperate with the City in recording the Plat and all required additional deeds and documents and providing assurance that the Plat and all required documents have been properly and timely recorded. Any restrictive covenants for the Plat shall be submitted to the City Attorney for approval and shall be recorded prior to sale of any lots within the Plat. 3. Right to Proceed. Within the Plat or land to be platted, the Developer may 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) the Plat and this Agreement have 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 27 lots within the Plat does not occur until all required security has been posted. 5. Changes in Official Controls. WILDFLOWER MEADOWS 5TH ADDITION 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 future phases of WILDFLOWER MEADOWS 5TH ADDITION for a period of five (5) 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 Official Controls enacted after 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 from 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 of this Agreement, the written terms shall control. The plans are: Plan A Final Plat, WILDFLOWER MEADOWS 5TH ADDITION, dated , 2015 prepared by Pioneer Engineering. Plan B Grading, Drainage, and Erosion Control Plan prepared by Pioneer Engineering and as finally approved by the City Engineer. Plan C Construction Plans for WILDFLOWER MEADOWS 5TH ADDITION, prepared by Pioneer Engineering and as finally approved by the City Engineer. 2 Plan D Specifications for WILDFLOWER MEADOWS 5TH ADDITION, prepared by Pioneer Engineering and as finally approved by the City Engineer. Plan E Landscaping Plan for WILDFLOWER MEADOWS 5TH ADDITION prepared by Pioneer Engineering, and as finally approved by the City Zoning Administrator. 7. Improvements. The Developer shall install and/or pay for the following: A. Streets B. Street lights C. Site grading and ponding D. Underground installation of all 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 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, 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 identified in Paragraph 7 above. 3 9. Permits. The Developer shall obtain or require its contractors and subcontractors to obtain all necessary pennits, which may include, but are not limited to: A. Wright County for County Road access and work in County right of way. B. MNDOT for State Highway Access C. MNDOT for work in right of way D. Minnesota Department of Health for watermains E. MPCA NPDES Permit for construction activity F. MPCA for sanitary sewer and hazardous material removal and disposal G. DNR for dewatering H. City of Otsego for building permits 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 December 31, 2015. 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 fifteen (15) 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, 4 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 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, 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 City with 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 of the following: A. Cross sections of ponds B. Location and elevations of swales 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 certified 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 by the 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 s 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 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 City accepts the streets by resolution. 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 City specifications and the City Code. 19. Administrative Fee. A fee for City Administration of this project shall be paid prior to the City executing the plat and this Agreement. Said fee shall be one percent (1%) of the estimated construction costs of the improvements within the plat, or alternatively a minimum fee. The administrative fee for this Plat is $1,660.00 and is contained within the escrow and fees established in Paragraph 28 of this Agreement. This fee is immediately available to the City upon establishment of the escrow. 20. Sewer Availability Fees. Current fees for the provision of sanitary sewer (SAC) are as follows: 14 REC units at $ 2,265.00 per unit or $31,710.00. Sanitary sewer availability fees shall be paid at the time that the final plat is approved. 21. Sewer Connection Fees. Sanitary sewer connection fees are payable at the time of issuance of a building permit. In the event that building permits are issued after the City has increased this fee, the applicable amount due per unit shall be the fee per REC unit in place at the time of application for a building permit. 22. Water Availability Fees. Current fees for the provision of water service (WAC) are as follows: 14 units at $ 1,581.00 per unit or $22,134.00 minus $20,578.00 credit carried forward from WILDFLOWER MEADOWS 3' ADDITION for a total of $1,556.00. Water availability fees shall be paid at the time that the final plat is approved. 23. Water Connection Fees. Water connection fees are payable at the time of issuance of a building permit. In the event that building permits are issued after the City has increased the hookup fee, the applicable amount due per unit shall be the fee per REC unit in place at the time of application for a building permit. 24. Park and Trail Dedication. The Park and Trail fee is $3,370.00 per lot times 41.7% (includes credit for previously dedicated park land) or $19,674.00. This amount is due and payable at the time of Final Plat approval. The Park and Trail fee is 31 subject to reduction in the amount of $3,740.00 upon City approval of a bituminous trail constructed over Outlots B and C. 25. Street and Traffic Control Signs. Before the City signs the final plat, the Developer shall pay to the City $750.00 for installation of traffic control signs (stop signs, street signs, dead-end signs). The said amount was calculated as follows: 3 signs at $ 250.00 per sign. Using these funds, the City shall purchase and install the street and traffic control signs. 26. 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 of 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 and is calculated as follows 2 lights x $ 2,000.00 per light for a total payment of $4,000.00. The operation and maintenance of the street lights by the City shall not commence until such time as the Plat is accepted by the City and is formally recorded. Street lighting shall conform to adopted City Code. 27. Transportation Infrastructure Cost. Preliminary Plat approval for WILDFLOWER MEADOWS requires payment of 50% Street Access fees calculated as follows; 14 lots at 50% of $1,430.00 per lot fee or $11,830.00. This amount is due and payable at the time of Final Plat approval. 28. City Engineering Administration and Construction Observation, Legal Fees Escrow and City Fees. The Developer shall pay a fee for consulting engineering administration. City 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 estimated to be three percent (3%) of the estimated construction cost of the improvements to be inspected, assuming normal construction and project scheduling. The Developer shall pay for construction observation performed by the City Engineer. Construction observation shall include part or full time observation, as determined by the City Engineer, of proposed street, sanitary sewer, water and storm drainage construction and will be billed on hourly rates actually required for said inspection estimated to be five percent (5%) of the estimated construction cost of the improvements to be inspected. In the event of prolonged construction or unusual problems, the City will notify the Developer of anticipated cost overruns for engineering administration and observation services. The escrow and fee account shall also include estimated fees for Legal expenses actually incurred, 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 of this Agreement) and shall be established as follows: ESCROW AND FEES City Construction Administration and Utility and Street Inspection Fees (estimated 8% of $166,000.00) $13,280.00 Legal Fees (estimated, actual billings to be paid) $1,660.00 City Administrative fee $1,660.00 Sewer Availability Charge (14 lots x $2,265 per lot) $31,710.00 Water Availability Charge (14 lots x $1,581 - credit) $1,556.00 Transportation Infrastructure Cost (14 lots x $845 per lot) $11,830.00 Park & Trail Dedication Fee (14 lots) $19,674.00 Street light maintenance and operation $2,000.00 Street & traffic control signs $750.00 GIS Data Entry ( $100 per 3.75 acres) $375.00 TOTAL $90,495.00 This escrow amount shall be submitted to the City prior to the City executing the Plat and 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 the Plat and this Agreement. Any amounts for legal and engineering not utilized from this escrow fund shall be returned to the Developer when all improvements have been completed, all financial obligations to the City satisfied, and the required "as constructed" plans have been received by the City. All other amounts listed as flat fees are non-refundable and available immediately for City use when posted. 29. Security. To ensure compliance with the terms of this Agreement, and construction of all public improvements, the Developer shall furnish the City with a cash escrow or other "security" in the amount of $298,762.50.00 said amount calculated as follows: s Site Grading, Erosion & Sediment Control $32,400.00 Sanitary Sewer- Lateral $30,500.00 Watermain- Lateral $39,500.00 Stone Sewer- Lateral $31,000.00 Streets $65,000.00 Engineering and Surveying Construction Services $12,610.00 Landscaping $2800.00 TOTAL $239,010.00 TOTAL SECURITY REQUIRED ($239,010.00 x 125%) $298,762.500 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 ability to draw on the security at a bank or branch bank located within fifty (50) miles of the City Hall. The security shall be for a term ending June 1, 2016 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 any default. Upon receipt of proof satisfactory to the City that work has been completed and financial obligations to the City have been satisfied, with City approval, the security may be reduced from time to time down to $33,650.00 the amount of warranty security. A warranty security in the amount of $33,650.00 shall be posted with the City as set forth in paragraph 33 of this Agreement. Notwithstanding the posting of that warranty security, the security shall not be reduced below ten percent (10%) of the posted security until 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 warranty on all public improvements at all times. This security amount shall be submitted to the City prior to execution of the Plat and 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 the plat and this Agreement. The security for this Agreement shall be cash or Irrevocable Standby Letter of Credit in the amount of $298,762.50. The cash shall be deposited with the City and released to make payments to contractors, consultants, City consultants as they are billed. The City will not release the security or any portion of the security until a copy of any billing due and owing has been submitted to and approved by the City and the City Engineer, subject to retention of retainage as set forth above and the appropriate amount for warranty of public improvements. 30. Landscaping. The Developer shall install two (two) trees upon each lot within the Plat of a species approved by the Zoning Administrator. These plantings may not be installed in a public right-of-way. 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 fails to install landscaping according to this Agreement. Landscaping security to insure compliance with the approved Landscape Plan shall be $28,000.00 to be posted with the City at the time this Agreement is executed. Any trees which can cause a public nuisance or public hazard, such as bug infestation or weak baric, are specifically 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. 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 pennitting, the trees, grass seed and sod shall be planted before Certificates of Occupancy are issued. All grass seed shall be maintained so that turf is established within one (1) year of planting. If landscaping as required by the City Code and this Agreement is not timely completed, the City 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 10 will provide will provide all trees, grass, seed and sod within the Plat and shall maintain said plantings and warrant thein to remain alive, of good quality and disease free for twelve (12) months after planting. Any replacement shall be warranted for twelve (12) months from the time of planting. 31. Significant Trees. There are no significant trees within the Plat. The Developer is not required to replace any significant trees. 32. Meters. Meters shall be provided as per City policy. 33. 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 $33,650.00. 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. 34. 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, and the sums due them have not been paid, and the laborers, materialmen or others 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%) 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 (125%) of the claim to the City within ten (10) days of such notice in the form of cash or certified check. 35. 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 desirability of 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: I1 A. Developer shall convey to City trail, utility and drainage easements over, under and across Outlot A, WILDFLOWER MEADOWS 5TH ADDITION. 36. 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. 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 Developer shall reimburse the City 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 (30) days after receipt. If the bills are not paid on time, the City may 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. 37. 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, perforin 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. This notice provision does not apply if the work performed by the City or its contractors is of an emergency nature, as detennined at the sole 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. 12 38. Miscellaneous. A. The Developer represents to the City that the plat complies with all City, County, State, and Federal laws and regulations, including but not limited to, Subdivision Ordinances, Zoning Ordinances, and environmental regulations except where specifically excluded by this agreement. If the City determines that the Plat does not comply, the City may, at its option, refuse to allow construction or development work in the plat until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. B. Third parties shall have no recourse against the City under this Agreement. C. Breach of any of the terms of this Agreement by the Developer shall be grounds for denial or revocation of building 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 of this 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 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 13 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) of this Agreement. H. The Developer shall tape 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 for property damage 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 City issuing 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 any time thereafter 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 of this 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 those specific terms and shall not unreasonably withhold consent to appropriate changes in the terms of this 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 14 facilities to be constructed in accordance with this agreement and plat approval. 39. Previous Developer's Agreement. Upon execution of this Agreement, Developer shall be released from the terms and conditions of that Developer's Agreement for WILDFLOWER MEADOWS related to the portion of WILDFLOWER MEADOWS being platted as WILDFLOWER MEADOWS 5TH ADDITION. 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: Meridian Land Holdings, LLC, Attention: Glenn A. McCabe Vice President, 3600 American Blvd. West, #750, Minneapolis, MN 55431. Notice to the City shall be in writing and shall be either hand delivered to the City Cleric at the following address: City of Otsego, City Hall, 13400 90th Street NE, Otsego, MN 55330, Attention: City Clerk CITY OF OTSEGO Jessica Stockamp, Mayor Tami Loff, City Clerk DEVELOPER MERIDIAN LAND HOLDINGS, LLC Its: 15 STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of 2015, 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 STATE OF MINNESOTA ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2015, by the 'of Meridian Land Holdings, LLC a Delaware limited liability company, with authority and on behalf of the company. DRAFTED BY: MACARTHUR LAW OFFICE, LLC 3601 Thurston Avenue North Suite 103 Anoka, MN 55303 (763) 231-5850 16 Notary Public