ITEM 3.10 RiverBend SouthF
Otsezo
MINNESOTA
DEPARTMENT INFORMATION
Request for
City Council Action
ORIGINATING DEPARTMENT:
REQUESTOR:
MEETING DATE:
Planning
City Planner Licht
22 June 2015
PRESENTER(s):
REVIEWED BY:
ITEM #:
Consent Agenda
City Administrator Johnson
3.10 — Riverbend South
forwarded it to the applicant for review and comment. The applicant's comments have been reviewed
City Attorney MacArthur
SUPPORTING DOCUMENTS: ❑ ATTACHED ❑ NONE
AGENDA ITEM DETAILS
RECOMMENDATION:
City staff recommends approval of the development agreement for the final plat of Riverbend South.
ARE YOU SEEKING APPROVAL OF A CONTRACT?
IS A PUBLIC HEARING REQUIRED?
Yes.
No.
BACKGROUND/JUSTIFICATION:
The City Council, at their meeting on 8 June 2015, approved a preliminary and final plat of Riverbend
South for Darkenwald Corporation. The approval was subject to conditions outlined in the Findings of
Fact and Decision and included the requirement that the developer enter into a development
agreement with the City accordance with the Subdivision Ordinance, subject to review by the City
Attorney and approval of the City Council. The City Attorney drafted the development agreement and
forwarded it to the applicant for review and comment. The applicant's comments have been reviewed
by the City Attorney and are incorporated as part of the document attached hereto.
SUPPORTING DOCUMENTS: ❑ ATTACHED ❑ NONE
A. Resolution 2015-33
POSSIBLE MOTION
Please word motion as you would like it to appear in the minutes.
Motion to adopt Resolution 2015-33 adopting a development agreement with Darkenwald Corporation
for the final plat of Riverbend South.
BUDGET INFORMATION
FUNDING: BUDGETED: ❑ YES
NA o NO
ACTION TAKEN
❑ APPROVED AS REQUESTED ❑ DENIED ❑ TABLED ❑ OTHER (List changes)
COMMENTS:
CITY OF OTSEGO
COUNTY OF WRIGHT
STATE OF MINNESOTA
RESOLUTION NO. 2015-33
RESOLUTION APPROVING DEVELOPERS AGREEMENT
RIVERBEND SOUTH ADDITION
WHEREAS, Darkenwald Corporation, Inc. is seeking approval of a Plat known as
RIVERBEND SOUTH, 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;
The attached Developers Agreement between the City of Otsego and
Darkenwald Corporation, Inc. 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 22nd day of June, 2015 by the City Council of Otsego.
MOTION TO ADOPT the Resolution by Council Member
and seconded by Council Member
IN FAVOR:
OPPOSED:
CITY OF OTSEGO
Jessica Stockamp, Mayor
Tami Loff, City Clerk
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DEVELOPMENT AGREEMENT
RIVERBEND SOUTH
THIS AGREEMENT, entered into this day of February, 2015 by and
between the CITY OF OTSEGO, a Minnesota municipal corporation ("CITY")
and Darkenwald's Riverbend Company II LLP, a limited liability partnership
under the laws of the State of Minnesota ("DEVELOPER")
RECITALS
WHEREAS, DEVELOPER has proposed a Plat to be known as
RIVERBEND SOUTH; and
WHEREAS, DEVELOPER is the fee owner the parcel of land described as
RIVERBEND SOUTH which is approximately 17.9 acres and is legally described
on Exhibit A; and
WHEREAS, LOT 1, BLOCK 1 which is 5.88 acres of the development is
proposed for development of a service station and convenience store, and other
related improvements; and
WHEREAS, the Final Plat and the new building are subject to a
Conditional Use Permit (CUP) by Ordinance adopted by the City Council on May
26, 2015; and
WHEREAS, the improvements with RIVERBEND SOUTH shall be
constructed, maintained and operated in accordance with the CUP and the terms
and conditions contained herein.
NOW THEREFORE, in consideration of the promises and mutual promises
hereinafter contained, it is agreed between the parties as follows:
1. Development Plans. The Plat shall be developed in accordance with the
plans the cover sheet of which is attached to this Agreement as Exhibit
B dated 2015 and signed by the City Engineer on file and of
record at CITY and herein fully incorporated herein by reference and
the conditions stated below (hereinafter the "Development Plans"). If
the Development Plans vary from the written terms of this Agreement,
the Development Plans shall control.
2. Municipal Improvements. The Development Plans include certain
Municipal Improvements as set forth on the attached Exhibit C.
3. Private Improvements. The DEVELOPER agrees that it shall cause to
be constructed and installed certain private improvements ("Private
Improvements") on the Subject Property. All Private Improvements are
to be installed at DEVELOPER'S sole cost and expense pursuant to this
Agreement.
DEVELOPER shall construct such Private Improvements in accordance
with all applicable building codes, ordinances and CITY standards and
the Building Development Plans furnished to the CITY and approved by
the City Engineer. The DEVELOPER shall obtain all necessary permits
before construction of any building. CITY shall provide adequate field
inspection personnel to assure acceptable quality control, which will
allow certification of the construction work. Within thirty (30) days after
the completion of any building and before any security is released, the
DEVELOPER shall supply the CITY with a complete set of reproducible
"as built" plans and two (2) complete sets of blue line "as built" plans
prepared in accordance with CITY standards.
4. Grading, Landscaping and Drainage. The DEVELOPER shall be
responsible for grading, landscaping and storm water management on
the Plat as more fully set forth in this Agreement.
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A. Landscaping. DEVELOPER shall maintain the sod and landscape
of boulevard areas adjacent to streets as shown in the Development
Plans through at least one growing season and to the satisfaction of
CITY. The long term maintenance of sod and landscaping of
boulevard areas shall be the responsibility of DEVELOPER or any
Future Owner. Further, DEVELOPER shall be responsible for
mowing, elimination of weeds and removal of any garbage or debris
within the Plat.
B. Erosion Control. The erosion control plan has been reviewed and
approved by CITY and shall be implemented by DEVELOPER prior
to grading. All areas disturbed by the excavation and backfilling
operations shall be reseeded forthwith after completion of work in
that area. If DEVELOPER does not comply with the erosion control
plan and schedule or any erosion control requirements, CITY may,
with reasonable notice, take action as it deems appropriate in
accordance with all applicable laws, ordinances or regulations or
according to this Agreement.
C. Grading Plan. Grading shall be in accordance with the approved
Grading Plan as provided in the Development Plans.
5. Pre -Construction Activity. DEVELOPER shall schedule a pre -
construction meeting with CITY to review the proposed schedule for
grading and construction of the building and related improvements as
set forth on the Development Plans, and to coordinate the schedule with
the City Engineer.
6. Ownership of Improvements. Upon completion of the work and
construction required by this Agreement, improvements lying within
public easements on the Subject Property shall become CITY property
without further notice or action.
7. Clean Up. DEVELOPER shall promptly clean any and all dirt and
debris from streets resulting from construction work by DEVELOPER,
its agents or assigns during the work and construction required by this
Agreement.
8. Administrative Fee. A one-time fee for CITY administration of the
development is one (I%) percent of estimated construction costs or
$5,436.00.
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9. Park and Trail Dedication. Park and Trail dedication requirements for
RIVERBEND SOUTH are as follows: 10.9 gross acres at $7,000.00 per
gross acre minus a credit of $6,545.00 for construction of a ten (10) foot
bituminous trail equals $69,755.00.
10. Storm Water Fees, and Storm Water Basin. No Storm Water Fees are
applicable to the Final Plat.
11. Sewer Availability Charges. The Sewer Availability Charges for the
Plat are as follows: 10.9 acres x 3.5 RECs per acre = 38.15 RECs at
$2,265.00 per REC = $86,409.75.
12. Sewer Connection Fees. Sanitary sewer connection fees are paid at the
time of issuance of a building permit. The sewer connection fees shall
be determined at the time that building plans are submitted and
reviewed by CITY.
13. Water Availability Charges. The Water Availability Charges for the
Plat are as follows: 10.9 acres x 3.5 RECs per acre= 38.15 RECs
$1,581.00 per REC = $60,315.15.
14. Water Connection Fees. Water connection fees are paid at the time of
issuance of a building permit. The water connection charges shall be
determined at the time that building plans are submitted and reviewed
by CITY.
15. Street and Traffic Control Sign Fees. The fee amount for the Subject
Property was calculated as follows: 17 signs at $250.00 per sign or
$4,250.00. Using these funds, CITY shall purchase and install the street
and traffic control signs.
16. CITY Engineering, Engineering Administration, Construction
Observation, and Legal Fee Escrow and City Fees. DEVELOPER
shall pay into escrow for the CITY'S engineering, engineering
administration and construction observation services of Municipal
Improvements as set forth on Exhibit C, following execution of this
agreement, in the estimated amount set forth below. 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 service estimated to be three percent (3%) of the
estimated construction cost of the improvements to be inspected,
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assuming normal construction and project scheduling. 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 the Municipal Improvements and
will be billed at 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, CITY will notify DEVELOPER of
anticipated cost overruns for engineering administration and observation
services.
The Escrow and Fee account shall include estimated escrow for City
Engineering, Engineering Administration and Construction Observation
limited to the Municipal Improvements expenses and Legal expenses,
and fees for City Administrative, Street and Traffic Control Signs,
Water and Sewer Availability Charges as follows:
ESCROW
City Construction Administration and Inspection Escrow $40,160.00
(estimated 8% of $502,000.00, actual billings to be paid)
Legal Fees (actual billings to be paid) $5,436.00
FEES
City Administration Fees (flat fee) $5,436.00
Street & traffic control sign Fees (17 at $250.00 per sign) $4,250.00
Sewer Availability Charge (38.15 RECs at $2,265 per REC) $86,409.75
Water Availability Charge (38.15 RECs at $1,581 per REQ $60,315.15
Street Lights (4 at $2,000 per light) $8,000.00
GIS Data Entry Fee (10.9 acres x $100 per acre) $1,090.00
Wetland Delineation Review (1 x $2,000.00) $2,000.00
TOTAL $282,851.90
These Escrow and Fee amounts shall be submitted to CITY prior to
CITY executing this Agreement. Any Escrow amounts not utilized for
legal and engineering charges incurred by the City under this
Agreement shall be returned to DEVELOPER when all improvements
have been completed, all financial obligations to CITY satisfied, and all
required "as -built " plans have been received by CITY.
Engineering, planning and legal fees incurred prior to the execution of
this Agreement shall be deducted from escrow already submitted with
the Plat application or charged against the escrow herein established.
All other amounts listed as one-time fees are non-refundable and
available immediately for CITY use when posted.
Notwithstanding the foregoing, the Escrow and Fee amounts shall be
adjusted based on the CITY's agreements with other Developers and the
actual costs of the Municipal Improvements. The final Escrow and Fee
amounts will be calculated based on the Final costs of the Municipal
Improvements and fees to be absorbed by other Developers.
17. Security. To ensure compliance with the terms of this Agreement, and
construction of all Municipal Improvements, DEVELOPER shall
furnish CITY with a cash escrow or Irrevocable Standby Letter of
Credit (at the election of the DEVELOPER) in the amount of
$679,538.00, said amount calculated as follows:
Site Grading, Erosion Control & Wetland Protection $9,000.00
Sanitary Sewer- Lateral & Trunk $62,000.00
Watermain- Lateral & Trunk $80,000.00
Storm Sewer- Lateral $115,000.00
Streets $245,000.00
Engineering & Surveying Construction Services $32,630.00
Landscaping $00.00
SUBTOTAL $543,630.00
TOTAL SECURITY ($543,630 x 125%) $679,538.00
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The issuer and form of the security (other than cash escrow) shall be
subject to CITY approval, which approval shall not be unreasonably
withheld. The security shall be issued by a banking institution in good
standing as determined by CITY and approved by the City
Administrator. CITY shall have the ability to draw on the Security by
overnight courier delivery to the bank or branch bank issuing the Letter
of Credit.
The security shall be for a term ending June 1, 2016 and shall contain an
automatic renewal provision. 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
DEVELOPER to inform CITY at least thirty (3 0) 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), DEVELOPER shall
immediately provide 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, CITY may also
draw down the security.
CITY may draw down the security for any violation of the terms of this
Agreement (after any reasonable notice to DEVELOPER and cure
periods). If the security is drawn down, the proceeds shall be used to
cure any default. CITY will, upon making determination of final costs
to cure any default, refund to the DEVELOPER any monies which
CITY has in its possession which are in excess of the security needed.
Upon receipt of proof satisfactory to CITY that work has been
completed and financial obligations to CITY have been satisfied, the
security will be reduced from time to time down to the amount of
warranty security as set forth in paragraph 18 of this Agreement.
The security shall not be reduced below ten percent (10%) of the posted
security until all improvements have been completed, all financial
obligations to CITY satisfied (which includes posting of warranty
security), and required "as built" plans have been received by CITY.
The intent of this Agreement that CITY shall have access to sufficient
security, either security or warranty security, to complete the Project
and insure warranty on all public improvements.
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The security amount shall be submitted to CITY prior to execution of
the Agreement.
Notwithstanding the foregoing, the security amounts shall be adjusted
based on the CITY's agreements with other Developers and the actual
costs of the Municipal Improvements. The final security amounts will
be calculated based on the final costs of the Municipal Improvements
and fees to be absorbed by other Developers.
18. Warranty. 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 CITY. The amount of
posted security for public improvements to be posted by DEVELOPER
shall be in the amount of $67,140.00. 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 the public improvements.
19. Restrictions. The following restrictions apply to the Subject 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 all
conditions imposed by CITY in this Agreement are properly recorded
against the Final Plat. Said conditions shall run with the real property
and be binding upon all parties having a right, title or interest in the
Subject Property or any part thereof, their heirs, executors,
representatives, successors and assigns:
A. DEVELOPER shall convey Outlots A and B to CITY.
B. DEVELOPER shall provide pedestrian striping and pedestrian
crossing controls for the traffic signal on CSAR 37 and internal
streets.
C. DEVELOPER shall comply with all Wright County requirements for
access to CSAH 37.
20. Responsibility for Costs.
A. Except costs for Developer's Internal Improvements, DEVELOPER
shall pay all costs incurred by it or CITY in conjunction with the
development of the Plat and building, including, but not limited to
legal, planning, engineering, and inspection expenses in connection
with the development and said Building.
B. DEVELOPER shall hold CITY and its officers, employees and
agents harmless from claims made by itself and third parties for
damages sustained or costs incurred resulting from DEVELOPER's
acts or failures to act in connection with development of the Subject
Property by DEVELOPER. DEVELOPER shall indemnify CITY
and its officers, employees and agents for all costs, damages or
expenses which CITY may pay or incur in consequence of such
claims, including attorney's fees.
C. DEVELOPER shall reimburse CITY for costs incurred in the
enforcement of this Agreement, including engineering fees, planning
fees, attorney's fees, and costs and disbursements. CITY shall
reimburse DEVELOPER for costs incurred in the enforcement of
this Agreement, including engineering fees, attorney's fees, and
costs and disbursements.
D. DEVELOPER shall pay in full all bills submitted to it by CITY for
obligations incurred under this Agreement and agreed to be paid by
DEVELOPER under this Agreement within thirty (30) days after
receipt. If the bills are not paid on time, and DEVELOPER does not
reasonably dispute the payment of amount of such bill CITY may
either reimburse itself from existing Escrow or Security or may halt
all Building 3 development work and construction until all bills are
paid in full. Bills not paid within thirty (30) days shall accrue interest
at the rate of twelve percent (12%) per year.
21. Miscellaneous.
A. Third parties shall have no recourse against CITY under this
Agreement.
B. 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.
C. The action or inaction of CITY shall not constitute a waiver or
amendment to the provisions of this Agreement. To be binding,
amendments or waivers shall be in writing, signed by the parties and
approved by written resolution of the City Council. CITY's failure to
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promptly take legal action to enforce this Agreement shall not be a
waiver or release.
D. This Agreement shall run with the land, shall be recorded against the
title to the Subject Property, and shall be binding on all parties
having any right, title or interests in the Subject Property or any part
thereof, their heirs, successors and assigns.
E. Each right, power or remedy herein conferred upon CITY or
DEVELOPER is cumulative and in addition to every other right,
power or remedy, express or implied, now or hereafter arising,
available to CITY or DEVELOPER, 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
CITY or DEVELOPER and shall not be a waiver of the right to
exercise at anytime thereafter any other right, power or remedy.
F. DEVELOPER shall pay for all local costs related to drainage
improvements required to complete the construction of the Plat
according to the Development Plans. Local costs are costs related to
required internal drainage improvements such as retention ponds.
G. Should development of the Plat or building proceed at a pace slower
than anticipated, and for that reason, specific terms of this
Agreement become onerous or unduly burdensome to
DEVELOPER, upon DEVELOPER's application, CITY will enter
into negotiations regarding those specific terms and shall not
unreasonably withhold consent to appropriate changes in the terms
of this Agreement.
H. DEVELOPER shall demonstrate and maintain compliance with the
1991 Wetland Conservation Act.
DEVELOPER shall be responsible for all on site drainage for the
Subject Property, as well as for any affects their actions may have on
adjoining properties.
22. Violation of Agreement. If while the escrow or security provided in
this Agreement is outstanding, a violation of any of the covenants or
agreements herein contained occurs and such violation is not cured
within thirty (30) days after written notice thereof from CITY to
DEVELOPER, CITY may draw upon the DEVELOPER's escrow or
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security to cure any violation of the Agreement and to reimburse CITY
for any costs incurred in curing the violation.
23. Maintain Public Property Damaged or Cluttered During
Construction. DEVELOPER agrees to assume full financial
responsibility for any damage which may occur to public property
including, but not limited to , street, street sub -base, base, bituminous
surface, curb, utility system including, but not limited to, watermain,
sanitary sewer or storm sewer when said damage occurs as a result of
construction activity which takes place during development of the
Subject Property by DEVELOPER or its contractors, except for damage
caused by CITY, its employees, agents or contractors. DEVELOPER
further agrees to pay all costs required to repair the streets and/or utility
systems damaged or cluttered with debris when occurring as a direct or
indirect result of the Developer's construction that takes place on the
Subject Property. In the event that DEVELOPER is required to maintain
or repair such damage and fails to maintain or repair the damaged public
property referred to aforesaid within thirty (30) days after written notice
from CITY or such longer period as may reasonably necessary or in the
event of an emergency as shorter time period as determined by CITY,
CITY may, upon notifying DEVELOPER undertake making or causing
it to be repaired or maintained. When CITY undertakes such repair,
DEVELOPER shall reimburse CITY for all its reasonable expenses
within thirty (30) of its billing to DEVELOPER. If DEVELOPER fails
to pay said bill within thirty (30) days, the security shall be responsible
for reimbursing CITY.
24. Non -Assignment Without Consent. The obligations of DEVELOPER
under this Agreement may be assigned by DEVELOPER if the
assignment is approved by CITY. However, DEVELOPER shall not be
released from its obligations under this Agreement without the express
written consent of the City Council through Council resolution.
25. Subordination. This Agreement must be recorded against the Subject
Property and all other liens, interests or mortgages shall be subordinate
to the terms and conditions this Agreement and said Agreement shall
not be subject to foreclosure by any other lien, interest or mortgage.
26. Notices. Required notices to DEVELOPER shall either hand delivered
to DEVELOPER, it employees or agents, or mailed to DEVELOPER by
registered snail or sent by overnight delivery at the following address:
Casey Darkenwald, Darkenwald Corporation, 7535 River Road NE,
Otsego, MN 55330. Notice to CITY shall be in writing and shall be
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either hand delivered to the City Clerk or Deputy City Clerk or mailed
by registered mail or sent by overnight delivery at the following
address: City of Otsego, City Hall, 13400 90th Street NE, Otsego, MN
55330, Attention: City Clerk.
27. Agreement Effect. This Agreement shall be binding and extend to the
respective representatives, heirs, successors and assigns of the parties
hereto.
28. Amendment. This Agreement shall be amended only by addendum
executed by both parties to this Agreement.
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IN WITNESS WHEREOF, DEVELOPER and CITY have executed this
Agreement as of the day and year above first written.
CITY OF OTSEGO,
A municipal corporation
Jessica Stockamp, Mayor
Tami Loff, City Clerk
DARKENWALD'S RIVERBEND COMPANY II LLP
A Minnesota limited liability partnership
By:
Its General Partner
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STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
On this day of June, 2015 before me personally appeared Jessica
Stockamp and Tami Loff to me known as the persons described in the foregoing
instrument and who did say they are, respectively, the Mayor and City Clerk of the
municipal corporation named therein and that said instrument was signed on
behalf of said municipal corporation by authority of its City Council and said
Jessica Stockamp and Tami Loff acknowledged said instrument to be the free act
and deed of said municipal corporation.
NOTARY PUBLIC
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
On this day of June, 2015, before me personally appeared
to me known as the person described in the foregoing
instrument and who did say he is the General Partner of Darkenwald's Riverbend
Company II LLP that said instrument was signed on behalf of the Darkenwald's
Riverbend Company II LLP with authority and on behalf of the partnership and
said acknowledged said instrument to be the free act and deed
of said entity.
NOTARY PUBLIC
DRAFTED BY:
MACARTHUR LAW OFFICE
3601 Thurston Avenue North
Suite 103
Anoka, MN 55303
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763-231-5850
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EXHIBIT A
LEGAL DESCRIPTION OF THE SUBJECT PROPERTY
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EXHIBIT B
DEVELOPMENT PLANS FOR THE SUBJECT PROPERTY
Development Plans for RIVERBEND SOUTH by Loucks Associates dated
2015 and approved by CITY , 2015, cover sheet
attached.
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EXHIBIT C- MUNICIPAL IMPROVEMENTS
Streets, Sanitary Sewer- Lateral and Trunk, Watermain- Lateral and Trunk
Storm Sewer- Lateral, Trail.
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