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ITEM 5.1 Riverpointe 6th AdditionP OtCI�ezoF MINNESOTA V DEPARTMENT INFORMATION Request for City Council Action ORIGINATING DEPARTMENT: Planning REQUESTOR: City Planner Licht MEETING DATE: 14 March 2016 PRESENTER(s): City Planner Licht REVIEWED BY: City Administrator Johnson ITEM #: 5.1— Riverpointe 6th Add. AGENDA ITEM DETAILS RECOMMENDATION: City staff recommends approval of the preliminary and final plat and PUD-CUP related to the proposed Riverpointe 6th Addition. ARE YOU SEEKING APPROVAL OF A CONTRACT? Yes. BACKGROUND/JUSTIFICATION: IS A PUBLIC HEARING REQUIRED? Held by Planning Commission 7 March 2016. Jeff and Kelly Busch have acquired Outlots E and F; Riverpointe located in the northwest corner of the Riverpointe subdivision and are proposing to build one single family home upon the parcels. The proposed development requires consideration of a preliminary and final plat and a Planned Unit Development -Conditional Use Permit (PUD-CUP) for indirect access to 59th Street across Lot 1, Block 1, Riverpointe 5th Addition. The Riverpointe preliminary plat approved by the City Council on 14 August 2000 included the subject site for subdivision of eight lots accessed by extension of 59th Street. The ability to subdivide these eight lots was conditioned upon the developer submitting revised plans for extension of 59th Street that would comply with City standards for street grades and avoid wetland impacts. It was determined with the Riverpointe 5th Addition final plat approved by the City Council on 14 April 2014 that it was not feasible to construct a public street to access the subject site as shown on the preliminary plat. When the property to the north and west of the subject site is developed in the future, it will be more feasible to extend public streets to the subject site. As an interim measure, an ingress/egress and utility easement was recorded along the north line of Lot 1, Block 1 Riverpointe 51h Addition to allow access and potential development of the subject site. A public hearing was held by the Planning Commission on 7 March 2016 to consider the applications. Mr. and Ms. Busch were present as the applicants. Questions from the public came from the owner of Lot 1, Block 1, Riverpointe 5th Addition regarding construction of the driveway across their lot and stormwater management. These questions were addressed by the City Engineer. The Planning Commission had no concerns regarding the proposed development of the one single family home. The public hearing was closed and the Planning Commission voted 7-0 to recommend City Council approval of the applications. Findings of fact consistent with the recommendation are attached for consideration of the City Council along with a development agreement drafted by the City Attorney. SUPPORTING DOCUMENTS: ❑ ATTACHED ❑ NONE A. Planning Report dated 3 March 2016 B. Engineering memorandum dated February 10, 2016 C. Findings of Fact D. Resolution 2016-30 approving a development agreement E. Development Agreement POSSIBLE MOTION Please word motion as you would like it to appear in the minutes. Motion to approve a preliminary/final plat and PUD-CUP for Riverpointe 61h Addition and adopt Resolution 2016-30 approving a development agreement. BUDGET INFORMATION FUNDING: BUDGETED: ❑ YES NA ❑ NO ACTION TAKEN ❑ APPROVED AS REQUESTED ❑ DENIED ❑ TABLED ❑ OTHER (List changes) COMMENTS: ,P 0tsTeF o MINNESOTA g APPLICANT: Jeff and Kelly Busch 8 March 2016 FINDINGS & DECISION PRELIMINARY PLAT/FINAL PLAT AND PUD-CUP APPLICATION: Request for approval of a preliminary and final plat and PUD-CUP for one single family lot to be known as Riverpointe 6th Addition. CITY COUNCIL MEETING: 14 March 2016 FINDINGS: Based upon review of the application and evidence received, the Otsego City Council now makes the following findings of fact: A. The legal description of the property attached as Exhibit A. B. The property lies within the East Sewer District and is guided for low density residential land uses by the 2012 Otsego Comprehensive Plan, as amended. C. The property is zoned R-4, Residential Urban Single Family District, which allows single family dwellings as a permitted use. D. The applicant is requesting a preliminary and final plat and PUD-CUP to allow for one single family lot without direct access to a public street. E. The Planning Commission and City Council must take into consideration the possible effects of the PUD-CUP with their judgment based upon (but not limited to) the criteria outlined in Section 20-4-2.F of the Zoning Ordinance: 1 K The proposed action's consistency with the specific policies and provisions of the Otsego Comprehensive Plan. Finding: The subject site is within the East Sewer District and is guided for low density residential uses at a density of less than 3.0 dwelling units per acre. The proposed subdivision of eight single family lots approved with the Riverpointe preliminary plat, which may occur in the future with public street access, and the proposed preliminary/final plat to create one lot for a single family home is consistent with the land uses guided by the Comprehensive Plan. The proposed use's compatibility with present and future land uses of the area. Finding: The subject site is surrounded by the following existing and planned land uses: Direction Land Use Plan Zoning Map Existing Use North LD Residential A-1 District Cultivated field East LD Residential R-4 District Single Family South LD Residential R-4 District Single Family West LD Residential A-1 District Cultivated field 1 The proposed single family home will be similar and compatible with existing and planned land uses in the area. The proposed driveway along the north side of Lot 1, Block 1, Riverpointe 5rh Addition will have limited travel and was established when the lot was final platted making this not a City issue. There is future potential to subdivide the subject site into multiple lots when the property to the north and west is developed. 3. The proposed use's conformity with all performance standards contained within the Zoning Ordinance and other provisions of the City Code. Finding: The proposed preliminary/final plat will comply with applicable requirements of the Zoning Ordinance and Subdivision Ordinance except as allowed under the PUD-CUP. 4. Traffic generation of the proposed use in relation to capabilities of streets serving the property. Finding: Traffic generated by the proposed use is within the capacity of 59rh Street and the proposed driveway accessing the subject site has been deemed acceptable by the City Engineer for public safety purposes. 5. The proposed use can be accommodated by existing public services and facilities and will not overburden the City's service capacity. Finding: The subject site was preliminary platted to subdivide eight single family lots. The proposed preliminary/final plat with one lot and one single family dwelling is within the City's existing service capacity. F. The planning report dated 3 March 2016 prepared by the City Planner, The Planning Company LLC., is incorporated herein. G. The Engineering Review dated February 10, 2016 prepared by the City Engineer, Hakanson Anderson Associates, Inc., is incorporated herein. H. The Otsego Planning Commission held a public hearing at their regular meeting on 7 March 2016 to consider the application, preceded by published and mailed notice. Based upon review of the application and evidence received, the Otsego Planning Commission closed the public hearing and recommended by a 7-0 vote that the City Council approve the request based on the aforementioned findings. DECISION: Based on the foregoing information and applicable ordinances, the request is hereby APPROVED and is subject to the following conditions: Any proposal to subdivide a second lot for a second single family dwelling may be allowed in the future subject to approval of applications for a PUD-CUP and preliminary and final plat. 2. Lot 1, Block 1 shall be subject to the following setback requirements: Front Side Rear Wetland North East West 35ft 10ft. 10ft. 20ft. 40ft. 3. The proposed driveway accessing 59rh Street shall be subject to review and approval of the City Engineer and shall be paved as required by Section 20-21-4.H.12.b of the Zoning Ordinance. 4. All grading, drainage, and erosion control plans, and retaining walls shall be subject to review and approval of the City Engineer. 5. All utility plans are subject to review and approval of the City Engineer. 6. The applicant shall pay utility availability and connection charges for one Residential Equivalent Connection (REC) based on the City's current fee schedule in accordance with Chapter 6, Section 1 of the City Code. 7. All easements shall be subject to review and approval of the City Engineer. 8. Park and trail dedication requirements will be satisfied as a cash fee in lieu of land at the time of final plat approval in accordance with the City's fee schedule. 9. Outlot A is to be deeded to the City for potential use as future right-of-way or Lot 1, Block 1 and Outlot A shall be combined into a single lot on the final plat. 10. The applicant shall enter into a development agreement with the City upon approval of the final plat, subject to review by the City Attorney and approval of the City Council. MOTION BY: SECOND BY: ALL IN FAVOR: THOSE OPPOSED: ADOPTED by the City Council of the City of Otsego this 14th day of March, 2016. CITY OF OTSEGO By: Jessica L. Stockamp, Mayor Attest: Tami Loff, City Clerk TPC3601 Thurston Avenue N, Suite 100 Anoka, MN 65303 Phone: 763.231.6840 Facsimile: 763.42 7.0520 TPC@PlanningCo.com PLANNING REPORT TO: Otsego Planning Commission FROM: Daniel Licht, AICP DATE: 3 March 2016 ACTION DATE: 2 April 2016 RE: Otsego — Riverpointe 6th Addition TPC FILE: 101.02 BACKGROUND Jeff and Kelly Busch have acquired Outlots E and F, Riverpointe located in the northwest corner of the Riverpointe subdivision and are proposing to build one single family home upon the parcels. The proposed development requires consideration of a preliminary and final plat and a Planned Unit Development -Conditional Use Permit (PUD-CUP) for indirect access to 59th Street across Lot 1, Block 1, Riverpointe 5th Addition. A public hearing has been noticed for the Planning Commission meeting on 7 March 2016 to consider the applications. Exhibits: A. Site Location B. Riverpointe Preliminary Plat C. Riverpointe 6th Addition Preliminary Plat D. Utility Plan E. Riverpointe 6th Addition Final Plat (2 sheets) ANALYSIS Outlots. The Riverpointe preliminary plat approved by the City Council on 14 August 2000 included the subject site for subdivision of eight lots accessed by extension of 59th Street. The ability to subdivide these eight lots was conditioned upon the developer submitting revised plans for extension of 59th Street that would comply with City standards for street grades and avoid wetland impacts. It was determined with the Riverpointe 5th Addition final plat approved by the City Council on 14 April 2014 that it was not feasible to construct a public street to access the subject site as shown on the preliminary plat. When the property to the north and west of the subject site is developed in the future, it will be more feasible to extend public streets to the subject site. As an interim measure, an ingress/egress and utility easement was recorded along the north line of Lot 1, Block 1 Riverpointe 5th Addition to allow access and potential development of up to two homes within the subject site (based on the subject site being two outlots). The submitted plans indicate platting of only one buildable lot and development of one single family home at this time. A proposal to subdivide a second lot for a second single family dwelling may be allowed in the future subject to approval of a PUD-CUP and preliminary and final plat. Zoning. The subject site is zoned R-4, Residential Urban Single Family District. Single family dwellings are a permitted use within the R-4 District. The proposed preliminary/final plat and development of a single family dwelling is consistent with the uses allowed by the Zoning Ordinance. Lot Requirements. Lots within the R-4 District are required to have a minimum area of 12,000 square feet and minimum width of 75 feet measured at the front setback line. The subject site has an area of 324,584 square feet. The dimensions of the parcel all exceed 75 feet but the parcel does not have frontage to a public street. Given the unique situation of the subject site being the size that it is, being included in the Riverpointe preliminary plat, and having potential access from the north/west by public streets in the future, the lot width can be allowed under the PUD-CUP. Setbacks. The table below states the setbacks required within the R-4 District. Because the subject site does not technically have a front lot line, the required setbacks are to be established based on anticipated extension of public streets from the north and west. The proposed single family dwelling is located at the northwest corner of the subject site and complies with all applicable setback requirements. Front Side Rear Wetland North East West Required 35ft 10ft. 10ft. 20ft. 40ft. Proposed 40ft. 210ft. 35ft. 870ft. 190ft. 2 Access. Section 20-21-4.H.2 of the Zoning Ordinance requires that all uses have direct access onto an abutting public street except as may be allowed by a PUD-CUP. As noted above, extension of 59th Street to access the subject site in compliance with City design standards was determined not to be feasible due to the existing topography and wetlands in the northwest corner of the Riverpointe subdivision. As an interim measure, a 20 foot wide ingress/egress and utility easement was recorded along the north line of Lot 1, Block 1 Riverpointe 5th Addition to allow access. The submitted plans provide for a 12 foot wide driveway to be constructed from the 59th Street temporary cul-de-sac to the north side of the proposed house. The submitted plans indicate that the proposed driveway will have slopes of as much as 12 percent, which exceeds the four percent standard of Section 20-21-4.H.10 of the Zoning Ordinance. The City Engineer has approved the grade and design of the driveway as acceptable given the limited use and the topography that exists between the proposed house location and 59th Street. The proposed driveway is to be paved as required by Section 20-21-4.H.12.b of the Zoning Ordinance. Grading Plan. The preliminary plat illustrates the proposed grading of the subject site. Additionally, cross section drawings for the construction of the proposed driveway have been submitted to indicate appropriate storm water management. The preliminary plat indicates construction of a retaining wall along a portion of the south side of the driveway and around the rear of the proposed single family home. Any retaining wall that is over four feet in height must be an engineered design and provide for a fence barrier at the top of the structure. All grading, drainage and erosion control plans, and retaining walls are subject to review and approval of the City Engineer. Utilities. The submitted plans provide for extension of municipal sewer and water services from 59th Street within the ingress/egress and utility easement to connect to the proposed single family dwelling. All utility plans are subject to review and approval of the City Engineer. The applicant will be required to pay utility availability and connection charges for one Residential Equivalent Connection (REC) based on the City's current fee schedule. The utility availability charge is to be paid at the time of final plat approval and the utility connection charge will be paid at the time a building permit is issued. Easements. Section 21-7-15 of the Subdivision Ordinance requires dedication of 10 foot wide drainage and utility easements at the perimeter of the proposed lot and over any wetlands. The preliminary and final plat illustrates the required perimeter easements and drainage and utility easements were previously dedicated over the wetland within the east portion of the subject site. All easements are subject to review and approval of the City Engineer. Park and Trail Dedication. Platting the two existing outlots into an lot for development of a single family dwelling triggers park dedication requirements in Section 21-7-18 of the Zoning Ordinance. No land is proposed to be dedicated to the City for park purposes as part of the proposed preliminary/final plat so park and trail dedication requirements will be satisfied as a cash fee in lieu of land. Final Plat. The applicant has submitted a final plat based on the preliminary platting of the subject site into one lot and one outlot. Unless the proposed outlot is to be deeded to the City for potential use as future right-of-way, City staff recommends that Lot 1, Blocl< 1 and Outlot A be combined into a single lot on the final plat. Development Agreement. The applicant is required to enter into a development agreement with the City upon approval of the applications. The development agreement will provide for compliance with the conditions of approval and require provision of securities to ensure that the proposed improvements are completed. The development agreement is to be drafted by the City Attorney and is subject to approval of the City Council. Criteria. Consideration of the requested PUD-CUP to final plat a lot not abutting a public street and allow indirect access to a single family dwelling is to be based upon the criteria outlined in Section 20-4-2.F of the Zoning Ordinance: The proposed action's consistency with the specific policies and provisions of the Otsego Comprehensive Plan. Comment: The subject site is within the East Sewer District and is guided for low density residential uses at a density of less than 3.0 dwelling units per acre. The proposed subdivision of eight single family lots approved with the Riverpointe preliminary plat, which may occur in the future with public street access, and the proposed preliminary/final plat to create one lot for a single family home is consistent with the land uses guided by the Comprehensive Plan. 2. The proposed use's compatibility with present and future land uses of the area. Comment; The subject site is surrounded by the following existing and planned land uses: Direction Land Use Plan Zoning Map Existing Use North LD Residential A-1 District Cultivated field East LD Residential R-4 District Single Family South LD Residential R-4 District Single Family West LD Residential A-1 District Cultivated field The proposed single family home will be similar and compatible with existing and planned land uses in the area. The proposed driveway along the north side of Lot 1, Block 1, Riverpointe 5th Addition will have limited travel and was established when the lot was final platted making this not a City issue. There is future potential to subdivide the subject site into multiple lots when the property to the north and west is developed. 3. The proposed use's conformity with all performance standards contained within the Zoning Ordinance and other provisions of the City Code. 4 Comment: The proposed preliminary/final plat will comply with applicable requirements of the Zoning Ordinance and Subdivision Ordinance except as allowed under the PUD- CUP. 4. Traffic generation of the proposed use in relation to capabilities of streets serving the property. Comment: Traffic generated by the proposed use is within the capacity of 59th Street and the proposed driveway accessing the subject site has been deemed acceptable by the City Engineer for public safety purposes. 5. The proposed use can be accommodated by existing public services and facilities and will not overburden the City's service capacity. Comment: The subject site was preliminary platted to subdivide eight single family lots. The proposed preliminary/final plat with one lot and one single family dwelling is within the City's existing service capacity. RECOMMENDATION Our office recommends approval of the preliminary/final plat and PUD-CUP applications as outlined below. POSSIBLE MOTIONS A. Motion to recommend approval of a preliminary/final plat and PUD-CUP for Riverpointe 6th Addition, subject to the following conditions: 1. Any proposal to subdivide a second lot for a second single family dwelling may be allowed in the future subject to approval of applications for a PUD-CUP and preliminary and final plat. 2. Lot 1, Block 1 shall be subject to the following setback requirements: Front Side Rear Wetland North East West 35ft 10ft. 10ft. 20ft. 40ft. The proposed driveway accessing 59th Street shall be subject to review and approval of the City Engineer and shall be paved as required by Section 20-21- 4.H.12.b of the Zoning Ordinance. 4. All grading, drainage, and erosion control plans, and retaining walls shall be subject to review and approval of the City Engineer. 5. All utility plans are subject to review and approval of the City Engineer. 6. The applicant shall pay utility availability and connection charges for one Residential Equivalent Connection (REC) based on the City's current fee schedule in accordance with Chapter 6, Section 1 of the City Code. 7. All easements shall be ubject to review and approval of the City Engineer. 8. Park and trail dedication requirements will be satisfied as a cash fee in lieu of land at the time of final plat approval in accordance with the City's fee schedule. 9. Outlot A is to be deeded to the City for potential use as future right-of-way or Lot 1, Block 1 and Outlot A shall be combined into a single lot on the final plat. 10. The applicant shall enter into a development agreement with the City upon approval of the final plat, subject to review by the City Attorney and approval of the City Council. B. Motion to recommend the application be denied based on a finding that the request is not consistent with the Comprehensive Plan or requirements of the Zoning Ordinance and Subdivision Ordinance. C. Motion to table. C. Lori Johnson, City Administrator Tami Loff, City Clerk Ron Wagner, City Engineer Andy MacArthur, City Attorney Jeff and Kelly Busch, applicants Dan Berning, Zeigler Custom Homes, Inc. Dan Schmidt, Sathre-Berquist, Inc. -- Main Office: 4,C) - Hakanson 3601 Thurston Avenue, Anoka, MN 55303 Anderson Phone: 763/427-5860 Fax: 763/427-0520 www.haa-inc.com � i s. Memorandum TO: Planning Commission/City Council BY: Ronald J. Wagner, P.E., City Engineer CC: Lori Johnson, City Administrator Dan Licht, City Planner Tami Loff, City Clerk Kurt Neidermeier, Utilities Manager Dan Schmidt, Sathre Berquist Dan Berning, Ziegler Custom Homes Jeffrey and Kelly Busch,12830 43rd St NE St. Michael MN 55376 DATE: February 10, 2016 RE: Riverpointe 6tb Addition — Review We have reviewed the Preliminary Plat and Final Plat for Riverpointe 6th Addition for conformance to City standards and have the following comments: Preliminary Plat 1) Driveway grade exceeds maximum driveway grade allowed. Maximum grade allowed is 10%. Driveway as shown on preliminary plat is approximately 12%. 2) The site plan must be revised to provide for a nearly flat turnaround at house so that someone does not have to back down a steep, curving driveway in the winter. 3) Retaining walls on either side of driveway and around the house exceeds 4' in height. A protective fence is required by the Building Code along the high side of any retaining wall exceeding 4'. Retaining walls in excess of 4' are required to be designed by a professional engineer licensed in Minnesota. Protective barriers along the driveway retaining walls, on down slope side, are suggested due to grade and width of travel surface. 4) Two culverts are shown providing drainage under the driveway. Storm water calculations determining sizing for culverts must be submitted for review and approval by the City Engineer. Size, type and inverts of existing utilities within 150' of the project boundary must be shown on the preliminary plat. 5) A driveway profile showing watermain service line and sanitary sewer service line is required in the final plans. Sewer service line shows no clean outs along approximately500' of length. The utility plan must be revised to provide cleanouts at all bends and at least midway the length of the service. The utility plan must also indicate type, size and grade of service line. 6) The utility plan must show watermain type and sizeand analysis must be completed to ensure existing City pressure is adequate per size of watermain. (i.e. that the pressure at the house is still adequate after checking headlosses associated with 500' of smaller conduit and a rise of approximately 30 ft. 2/11/2016 Page 2 7) Cross sections of the driveway and retaining walls is required and are subject to approval of the City Enigneer. 8) Typical section of driveway is required and is subject to approval of the City Engineer. 9) Temporary and permanent erosion control is required to be shown. A NPDES permit would be required if over 1 acre is disturbed. 10) Outlot A has no functional purpose and the preliminary plat is to be revised to combine Outlot A with Lot .1 to create a single parcel. Final Plat 1) Ingress/egress and utility easement over Outlot A would be required if ever sold to another party. 2) Drainage easement is required along waterway channels. There are two waterway channels within the subject site; one running NW to SW under driveway across both Outlot A and Lot 1 and one along the north easterly portion of Lot 1. 3) A 20' conservation easement along the wetland is required. Conservation easement signs (wetland buffer) are required at intervals which indicate the approximate line and can be seen from one to the next. 4) The drainage and utility easement along the west property line must be 10' rather than 5' when adjacent to unplatted property. 5) Outlot A is to be combined with Lot 1, Block 1 to create a single parcel. Recommendation Many items need to be shown and analyzed. The exceedance of driveway slope has merit due to the uniqueness of the site. As long as the owners are aware of the issues regarding the steep slope and potential safety and accessibility issues in adverse weather conditions I would advise allowing it. At this point we cannot recommend approval due to the number of items that need addressing prior to Planning Commission consideration of the applicaiton. I -All Halcanson -Anderson CITY OF OTSEGO COUNTY OF WRIGHT STATE OF MINNESOTA RESOLUTION NO. 2014-30 RESOLUTION APPROVING DEVELOPERS AGREEMENT- RIVERPOINTE 6Tn ADDITION WHEREAS, Jeff Busch and Kelly Busch are seeking approval of a Plat known as RIVERPOINTE 6TH ADDITION; and WHEREAS, the approved Plat requires payment of City costs and fees; and WHEREAS, those obligations are contained and memorialized in the attached Developers Agreement; and WHEREAS, the Developers Agreement also sets forth the escrow required 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 Jeff Busch and Kelly Busch is hereby approved in form, subject to modification of fees and charges as approved by City staff. 2. The Mayor and City Clerk are hereby authorized to execute the final Developers Agreement on behalf of the City of Otsego. ADOPTED this 14t' day of March, 2016 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 DEVELOPMENT AGREEMENT RIVERPOINTE 6TH ADDITION AGREEMENT entered into this day of March, 2016 between the City of Otsego ("City"), a municipal corporation organized under the laws of the State of Minnesota, and Jeff Busch and Kelly Busch, husband and wife ("Developer"). 1. Request for Plat Approval. The Developer has requested that the City approve that plat entitled RIVERPOINTE 6TH ADDITION. The legal description of the property covered by this Agreement is as follows: Outlots E and F, RIVERPOINTE, according to the Plat on file and of record at the Office of the County Recorder, Wright County, Minnesota. The Plat contains one (1) single family residential lot. The plat is located within the City's East Sewer District, is zoned R-4, Single Family Residential District as approved by Ordinance adopted by the City Council on July 24, 2000. The Final Plat for RIVERPOINTE 2ND ADDITION was approved by the City Council on November 14, 2005. 2. Conditions of Plat Approval. The City hereby approves the Plat on condition that the Developer enter into this Agreement, furnish the security required by it, and record the Agreement with the Wright County Recorder or Registrar of titles within one hundred (100) days after the City Council approves the Agreement. The Developer shall cooperate with the City in recording the Agreement and all required additional deeds and documents and providing assurance that the Agreement and all required documents have been properly and timely recorded. 1 3. Right to Proceed. Within the Plat, 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) this Agreement has been recorded with the Wright County Recorder's Office, 4) The Developer has initiated and attended a pre -construction meeting with the City Engineer, and 5) the Zoning Administrator has issued a letter that all conditions have been satisfied and that the Developer may proceed; or until such time as approval to commence earlier construction is specifically approved by the City, and Developer has fully complied with all conditions set forth by City staff. 4. Sanitary Sewer Service Allocation. The allocation of sanitary sewer service to the one (1) lot within the Plat does not occur until all required security has been posted. 5. Changes in Official Controls. RIVERPOINTE 6TH 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 RIVERPOINTE 6TH 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, RIVERPOINTE 6TH ADDITION prepared by Sathre- Berquist, Inc. Plan B Grading, Drainage, and Erosion Control Plan prepared by Sathre- Berquist, Inc. and as finally approved by the City Engineer. 7. Improvements. The Developer shall install and/or pay for the following: A. Site grading and ponding B. Underground installation of all utilities 2 C. Sanitary sewer lines D. Water lines E. Storm water management improvements F. Setting of lot and block monuments I. Construction surveying and staking 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 .DNF 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. 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 3 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, 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 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 fall 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 4 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. 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. 18. Administrative Fee. A fee for City Administration of this project is $1,500.00. 20. Sewer Availability Charges. The Sewer Availability Charges for the Plat due upon Final Plat approval is as follows; 1 lot at $2,310.00 per REC = $2,310.00. 21. Sewer Connection Fees. Sanitary sewer connection fees are paid at the time of issuance of a building permit. The applicable amount due per unit shall be the fee per REC unit in place at the time of application for a building permit. 22. Water Availability Charges. The Water Availability Charges for the Plat due upon Final Plat approval is as follows: 1 lot at $1,613.00 per REC = $1,613.00. 23. Water Connection Fees. Water connection fees are paid at the time of issuance of a building permit. The applicable amount due per unit shall be the fee per REC unit in place at the time of application for a building permit. 24. Park and Trail Dedication. The Park and Trail Dedication for the Plat is $3,400.00. s 25. Storm Water Management Fee. There is no Trunk Storm Water Fee applicable to this Plat. 26. Transportation Infrastructure Cost. Developer, pursuant to a separate Agreement provided for the construction of Randolph Avenue within the RIVER PLACE subdivision. As a result of the construction of Randolph Avenue, no additional transportation infrastructure charges are applicable to this Plat. 27. 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. 28. Street Light Construction. The Developer shall pay for the operation and maintenance of the street lights for a period of two (2) years. In order to facilitate payment for operation and maintenance of street lights, the Developer shall submit a fee to be included within the escrow and fees established in Paragraph 27 of this Agreement calculated as follows: 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 street lights are actually constructed. Street lighting shall conform to adopted City Code. 29. City Engineering Administration and Construction Observation, Legal Fees Escrow and City Fees. The Developer shall pay a fee for consulting engineering administration following approval of the Plat. City engineering administration will include consultation with Developer and its engineer on status or problems regarding the project, monitoring during the warranty period, general administration and processing of requests for reduction in security. Fees for this service shall be the actual amount billed for those services, which are estimated to be three percent (3%) of the estimated construction cost of the Plan C Improvements to be inspected, assuming normal construction and project scheduling. The Developer shall pay for construction observation performed by the City Engineer. Construction observation shall include part or full time observation, as determined by the City Engineer, of proposed street, sanitary sewer, water and storm drainage construction and will be billed on hourly rates actually required for said inspection, which are estimated to be five percent (5%) of the estimated construction cost of the Plan C Improvements to be inspected. In the event of prolonged construction or unusual problems, the City will notify the Developer of anticipated cost overruns for engineering administration and observation services. Any amounts for engineering administration not utilized from this escrow fund shall be returned to the Developer when all improvements have been completed, all financial obligations to the City satisfied, and the required "as constructed" plans have been received by the City. 6 The escrow and fee account shall also include estimated fees for Legal expenses actually incurred (with any excess funds, if any, returned to Developer as indicated further in this Paragraph 29), City Administrative Fee (a flat fee due upon execution of this Agreement), Trunk Water and Sewer Access Fees (a flat fee due upon execution of this Agreement), Transportation Infrastructure Costs (a flat fee due upon execution of this Agreement), Park and Trail Dedication Fees (a flat fee due upon execution of this Agreement), Street Light Maintenance and Operation Fee (a flat fee due upon execution of this Agreement) and shall be established as follows: ESCROW AND CITY FEES City Construction Administration and Utility and Street Inspection Fees estimated $3,000.00 Legal Fees ( actual billings to be paid) $1,500.00 City Administration Fee $1,500.00 Park and Trail Dedication $3,400.00 Sewer Availability Charge ( 1 lot at $2,310.00 per REC) $2,310.00 Water Availability Charge ( 1 lot at $1,613.00 per REC) $1,613.00 TOTAL $13,323.00 This escrow amount shall be submitted to the City prior to the City executing this Agreement. All administrative and legal fees related to plan review, drafting of this Agreement and any other necessary items shall be paid to the City prior to execution of this Agreement. Any amounts for legal and engineering not utilized from this escrow fund shall be returned to the Developer when all improvements have been completed, all financial obligations to the City satisfied, and the required "as constructed" plans have been received by the City. All other amounts listed as flat fees are non-refundable and available immediately for City use when posted. 30. Security. To ensure compliance with the terms of this Agreement, and construction of all public improvements, the Developer shall furnish the City with a cash escrow or Irrevocable Standby Letter of Credit with automatic renewal provisions in the amount of $00.00 said amount calculated as follows: Site Grading, Erosion Control & Wetland Protection $00.00 Sanitary Sewer- Lateral & Trunk $00.00 Watermain- Lateral & Trunk $00.00 Storm Sewer- Lateral $00.00 Streets $00.00 Engineering and Surveying Construction Services $00.00 Landscaping $00.00 SUBTOTAL $00.00 TOTAL SECURITY $00.00 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 (NA) 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 $00.00, which is the amount of warranty security. A warranty security in the amount of $ 00.00 shall be posted with the City as set forth in paragraph 34 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 8 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 Agreement. All administrative and legal fees related to plan review, drafting of this Agreement and any other necessary items shall be paid to the City prior to execution of this Agreement. The security for this Agreement shall be an Irrevocable Standby Letter of Credit with automatic renewal provisions conforming to the requirements of this Paragraph or cash in the amount of $00.00. 31. Landscaping. The Developer shall install two (2) 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 fail to install landscaping according to this Agreement. Landscaping security to insure compliance with the approved Landscape Plan shall be $1,000 per lot to be posted with the City at the time of application for a building permit on each lot. Any trees which can cause a public nuisance or public hazard, such as bug infestation or weak bark, are 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 at the time of application for a building permit on each lot. The Developer, Builder or Property Owner shall provide not less than six (6) inches of topsoil in required front yards or side yards abutting public rights -of -way. Where slopes lie in excess of ten (10) percent, sodding (staked) shall be required. Weather permitting, the trees, grass seed and sod shall be planted before Certificates of Occupancy are issued. All grass seed shall be maintained so that 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. Developer is also required to implement a Landscaping Plan including boulevard landscaping along City streets as well as designated other plantings. Security shall be posted in order to insure compliance with the approved Landscaping Plan. 7 32. Significant Trees. There are no significant trees within the Phase. The Developer is not required to replace any significant trees. 33. Meters. Meters shall be provided as per City policy. 34. Warranty. The Developer warrants all work required to be performed by it against poor material and faulty workmanship for a period of one (1) year after its completion and acceptance by the City. The amount of posted warranty security for public improvements to be posted by the Developer shall be in the amount of $00.00. The amount, has been determined by the City Engineer, and is based upon the costs of the raw materials and labor which would be necessary to correct the most common deficiencies in such public improvements. 35. Claims. The Developer shall pay any subcontractor within ten (10) days of the Developer's receipt of payment by the City for undisputed services provided by the subcontractor. In the event that the City receives claims from labor, materialmen, or others that perform work required by this Agreement, 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. 36. Restrictions. The following restrictions apply to the property and all lots thereon shall be held, sold, and conveyed subject to the following conditions and restrictions, which are for the purpose of protecting the value and 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: None. 37. Responsibility for Costs. A. Except as otherwise specified herein, the Developer shall pay all costs incurred by them or the City in conjunction with the development of the Plat, including, but not limited to, legal, planning, engineering, and inspection expenses incurred in connection with development of said 10 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. 38. Developer's Default. In the event of default by the Developer as to any of the work to be performed by it hereunder, the City may, at its option, perform the work and the City may then draw down the security established in Paragraph 17 to pay for any work undertaken, provided the Developer is first given notice of the work in default, not less than seven (7) days in advance. 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. 39. 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 Phase does not comply, the City may, at its option, refuse to allow construction or development II 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 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 12 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. 40. Previous Developer's Agreement. Applicable portions of the previous Developers Agreements for RIVERPOINTE still remain in effect for this Plat, subject only to modifications set forth in this Agreement. 13 41. Notices. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, their employees or agents, or mailed to the Developer by registered mail at the following address: Attention: . 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 90t' Street NE, Otsego, MN 55330, Attention: City Clerk STATE OF MINNESOTA ) ) SS. CITY OF OTSEGO Jessica Stockamp, Mayor Tami Loff, City Clerk JEFF BUSCH & KELLY BUSCH DEVELOPER Jeff Busch Kelly Busch 14 COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of 2016, 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 2016 by Jeff Busch and Kelly Busch, husband and wife. DRAFTED BY: MACARTHUR LAW OFFICE, LLC 3 601 Thurston Avenue North Suite 103 Anoka, MN 55303 (763) 231-5850 Notary Public 15