RES 15-54CITY OF OTSEGO
COUNTY OF WRIGHT
STATE OF MINNESOTA
RESOLUTION NO: 2015-54
RESOLUTION APPROVING DEVELOPERS AGREEMENT BETWEEN
THE CITY OF OTSEGO AND ESSAY HOLDINGS LLC RELATIVE TO
THE PLAT OF KITTREDGE CROSSINGS 12th ADDITION
WHEREAS, the City of Otsego (CITY) has approved the Plat of KITTREDGE
CROSSINGS 12th ADDITION; and
WHEREAS, the property within the Plat will be owned by Essay Holdings LLC
(DEVELOPER) who intends to develop the parcel; and
WHEREAS, a Developers Agreement has been drafted setting forth the terms and
conditions for development of the property, and requiring that the Developer
provide certain escrow, payment of fees, and security to insure that all public
improvements are constructed as required by CITY; and
WHEREAS, DEVELOPER has agreed to the terms and conditions of the
Developers Agreement.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of
Otsego, Wright County, Minnesota as follows:
The CITY hereby approves the Developers Agreement as attached and
authorizes the Mayor and City Clerk to execute the Agreement on behalf of
the CITY,
2. That City staff are hereby authorized to approve appropriate changes and
additions to the Agreement prior to its execution.
ADOPTED this 28th day of September, 2015.
MOTION to approve the Resolution made b Council Member.
And seconded by Council Member Schroeder
Heidner
IN FAVOR: Stockamp, Heidner, Schroeder, Warehime, Darkenwald
OPPOSED: None
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CITY OF OTSEGO
Jessica Stockamp, Ma or
Tami Loff, ty Clerk
DEVELOPMENT AGREEMENT
KITTREDGE CROSSINGS 12th ADDITION
AGREEMENT entered into this day of October, 2015 between the City of
Otsego ("City"), a municipal corporation organized under the laws of the State of Minnesota,
and Essay Holdings, LLC, a Minnesota Limited Liability Company ("Developer").
1. Request for Plat Approval. The Developer has requested that the City
approve a plat entitled KITTREDGE CROSSINGS 12th ADDITION (referred to in this
Agreement as "the Plat") and legally described as follows:
Lots 1 through 5, inclusive, Block 2, Lots 1 through 12, inclusive, Block 3, Lots 1 through 7,
inclusive, Block 4, Lots 1 through 6, inclusive, Block 5, Lots 1 through 14, inclusive, Block 6
and Outlot A, KITTREDGE CROSSINGS 9H ADDITION, according to the recorded plat
thereof, Wright County, Minnesota.
The plat contains twenty five (25) detached townhomes, as well as two (2) outlots. The plat is
located within the City's West Sewer District, is zoned PUD, Planned Unit Development
District as approved by Ordinance adopted by the City Council on May 1, 2003. The Final
Plat for KITTREDGE CROSSINGS 9t ADDITION was approved by the City Council on
March 28, 2005. KITTREDGE CROSSINGS 12' ADDITION is a re -plat of a portion of
KITTREDGE CROSSINGS 9' ADDITION.
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. Allocation of sanitary sewer service has
already been made for this Plat in the previous approval of KITTREDGE CROSSINGS 9th
ADDITION. The allocation of sanitary sewer service previously approved does not occur
until all required security has been posted.
5. Changes in Official Controls. KITTREDGE CROSSINGS 12' 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 effect the use, development density, lot size, lot layout, or platting requirements for future
phases of KITTREDGE CROSSINGS 12' 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, KITTREDGE CROSSINGS 12' ADDITION, dated
, 2015 prepared by Westwood Professional Services,
Inc...
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Plan B Grading, Drainage, and Erosion Control Plan prepared by Westwood
Professional Services, Inc. and as finally approved by the City Engineer.
Plan C Construction Plans for KITTREDGE CROSSINGS 12' ADDITION,
prepared by Westwood Professional Services, Inc. and as finally
approved by the City Engineer.
Plan D Specifications for KITTREDGE CROSSINGS 12' ADDITION,
prepared by Westwood Professional Services, Inc. and as finally
approved by the City Engineer.
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.
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9. Permits. The Developer shall obtain or require its contractors and
subcontractors to obtain all necessary permits, 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
October 31, 2016. 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,
Plan B, shall be implemented by the Developer and inspected and approved by the City. If
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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 related to such work and pay all costs
associated with that work. Any plowing undertaken by the City will constitute no acceptance
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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 (1/2%)
of the estimated construction costs of the improvements within the plat, or alternatively a
minimum fee. The administrative fee for this Plat is the minimum fee of $1,500.00 and is
contained within the escrow and fees established in Paragraph 27 of this Agreement. This fee
is immediately available to the City upon establishment of the escrow.
20. Storm Water Management Cost. The Developer shall fully comply with the
Grading, Drainage, and Erosion Control Plan (Plan B). The City has established a cost for the
impact of the Plat upon storm water drainage within the Otsego Creek watershed. The cost is
based upon engineering studies completed by the City. The Storm Water Management Cost
for KITTREDGE CROSSINGS 12th ADDITION has already been paid for in the previous
platting of KITTREDGE CROSSINGS 9' ADDITION.
21. Transportation Infrastructure Costs. In the event that safe, practical and
convenient access to the plat requires that the City expend funds for construction,
reconstruction or repair of any City street providing access to the plat and which construction,
reconstruction or repair would not be necessary or timely but for the development, Developer
shall pay a lump sum fee for such access to those roadways. Transportation Infrastructure
Costs for KIITREDGE CROSSINGS 12th ADDITION have already been paid with the
platting of KITTREDGE CROSSINGS 9' ADDITION.
22. Sanitary Sewer Connection Fees. Sanitary sewer connection fees shall be
paid at the time that a building permit is obtained from the City for each individual lot. In the
event that building permits are issued after the City has increased the connection fee, the
applicable amount due per unit shall be that portion of the fee designated per REC unit in
place at the time of application for a building permit.
23. Water Connection Fees. Water connection fees shall be paid at the time that
building permit is obtained from the City for each individual lot. In the event that building
permits are issued are issued after the City has increased the connection fee, the applicable
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amount due per unit shall be that portion of the fee designated per REC unit in place at the
time of application for a building permit.
24. Park and Trail Dedication. Park dedication requirements for KITTREDGE
CROSSINGS 12th ADDITION have already been satisfied in the previous platting of
KITTREDGE CROSSINGS 9' ADDITION
25. Street and Traffic Control Signs. Before the City signs the final plat, the
Developer shall pay to the City $00.00 for installation of traffic control signs (stop signs,
street signs, dead-end signs). The said amount was calculated as follows: 0 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 0 lights x $2,000.00 per light for a total payment of $ 00.00. 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. 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
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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 $22,845) $ 1,828.00
Legal Fees (estimated, actual billings to be paid) $ 1,500.00
City Administrative (flat minimum fee) $ 1,500.00
Sanitary Sewer Connection Fee
Water Connection Fee
Storm Water Management Cost
Transportation Infrastructure Cost
Park & Trail Dedication Fee
Street light maintenance and operation
Street & traffic control signs
GIS Data Entry Fee
TOTAL
To be paid at building permit
To be paid at building permit
NA
NA
NA
$ 00.00
$ 00.00
$ 191.00
$ 5,019.00
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.
28. 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 $ 102,125.00 said amount calculated as follows:
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Site, grading, drainage, erosion and sediment
control and wetland protection $4,125.00
Sanitary Sewer- Lateral & Trunk $00.00
Watermain- Lateral & Trunk $11,800.00
Storm Sewer- Lateral $00.00
Streets $11,045.00
Engineering and Surveying Construction Services $4,730.00
Landscaping $50,000.00
TOTAL $81,700.00
TOTAL SECURITY REQUIRED ($87,700 x 125%) $102,125.00
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 October 31, 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 $8,020.00 the amount of warranty security, whichever is more. A
warranty security in the amount of $8,020.00 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
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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 an Irrevocable Letter of Credit in the amount
of $102,125.00. The Letter of Credit shall comply with the requirements of the first paragraph
of this section. The issuer of the Letter of Credit shall immediately notify the City of any
circumstances that would place the security in jeopardy.
29. Outlot. Outlot B shall be conveyed to the owner of Lot 6, Block 2
KITTREDGE CROSSINGS 9TH ADDITION at the time the Plat is recorded.
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 $ 1,000 per lot to 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 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
permitting, 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 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 for twelve (12) months from the
time of planting.
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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 $8,020.00. 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: Developer shall provide for a Homeowners Association to maintain
the common open space and provide for maintenance and repair of the private driveway. The
developer shall also address common open space and private driveway issues associated with
10 existing townhouse dwellings within Block 1 of KITTREDGE CROSSINGS 9TH
ADDITION facing Kittredge Parkway with regards to shared use of Outlot A. The proposed
Homeowners Association documents are subject to review and approval by the City Attorney.
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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, 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. 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 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.
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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 under
this Agreement as set forth in Section 8, at the Developer's request, the
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City will execute and deliver to the Developers a release or partial
release (s) of this 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 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 facilities
to be constructed in accordance with this agreement and plat approval.
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39. Previous Developer's Agreement. Upon execution of this Agreement,
Developer and others shall be released from the terms and conditions of that Developer's
Agreement for KIITTREDGE CROSSINGS 9th related to the portion of KITTREDGE
CROSSINGS 9th ADDITION being platted as KITTREDGE CROSSINGS 12th 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: Essay Holdings LLC, 16135 55th Avenue N,
Plymouth, MN 55446 Attention: Bill Gleason. 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: City Clerk
CITY OF OTSEGO
IM
Jessica Stockamp, Mayor
Tami Loff, City Clerk
DEVELOPER
ESSAY HOLDINGS, LLC
Its:
STATE OF MINNESOTA )
ss.
COUNTY OF WRIGHT )
15
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 Essay Holdings, LLC. a Minnesota 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
DRAFTED BY:
MACARTHUR LAW OFFICE, LLC
3601 Thurston Avenue North
Suite 103
Anoka, MN 55303
(763) 231-5850