ITEM 3.5 Boulder Creek 2nd AdditionOtsezoMINNESOTA V
DEPARTMENT INFORMATION
Request for
City Council Action
ORIGINATING DEPARTMENT:
Planning
REQUESTOR:
City Planner Licht
MEETING DATE:
25 April 2016
PRESENTER(s):
REVIEWED BY:
ITEM #:
Consent
City Administrator Johnson
3.5 — Boulder Creek 2nd Add.
City Attorney MacArthur
City Engineer Wagner
AGENDA ITEM DETAILS
RECOMMENDATION:
City staff recommends approval of the Boulder Creek 2nd Addition Final Plat and development
agreement.
ARE YOU SEEKING APPROVAL OF A CONTRACT? I IS A PUBLIC HEARING REQUIRED?
Yes. I No.
BACKGROUND/JUSTIFICATION:
Mattamy Homes received final plat approval of 78 single family lots to be known as Boulder Creek 2nd
Addition on 25 April 2016. The developer is requesting revision of the development agreement to allow
them to construct street and utility improvements in two phases based on their current supply of single
family lots. The first phase would consist of 53 single family lots to be completed by 31 December 2016
and the second phase would be 25 single family lots to be completed by 31 December 2018. The
proposed phased construction does not change the fees or securities to be provided by the developer in
executing the revised development agreement for final platting 75 lots.
Park and trail dedication requirements for the Boulder Creek preliminary plat are to be met as a
combination of land dedication, park and trail improvements, and cash fee in lieu of land. Outlots A, C,
and D are to be deeded to the City with this final plat. Additional land to be dedicated to the City will
occur with later phases ultimately meeting 57.9 percent of the required park and trail dedication
requirement. The cash portion of the park and trail dedication requirement will be met as a percentage
of the current fee of $3,400/lot for Boulder Creek 2"d Addition. The developer has proposed completing
improvements for the Lefebvre Creek greenway within the plat and the City owned parcel to the west
abutting 75th Street. However, plans have not been submitted for review by City staff and the Parks and
Recreation Commission or approval of the City Council. As such, City staff recommends adding
$261,109.00 to the required letter of credit for the park and trail dedication fees due for both the
Boulder Creek and Boulder Creek 2"d Addition final plats.
The developer has submitted grading and drainage plans for the area of the proposed final plat and has
initiated work under a separate grading agreement and provision of security. The developer is required
to pay a Stormwater Impact Charge for Lefebvre Creek of $2,180 per gross acre at the time of final plat
approval, which is included in the development agreement. The developer is also proposing to
undertake grading and stormwater improvements to Lefebvre Creek in accordance with the Watershed
Management Plan. Costs incurred for these improvements, which are subject to review and approval of
the City Engineer, are to be credited against the Stormwater Impact Charge for the final plat (and future
additions) as outlined in the revised development agreement.
SUPPORTING DOCUMENTS: ❑ ATTACHED ❑ NONE
A. Site Location
B. Resolution 2016-63 approving the revised Development Agreement
C. Development Agreement
POSSIBLE MOTION
Please word motion as you would like it to appear in the minutes.
Motion to adopt Resolution 2016-63 approving a revised Development Agreement for Boulder Creek 2"d
Addition.
BUDGET INFORMATION
FUNDING: I BUDGETED: ❑ YES
NA
ACTION TAKEN
❑ NO
❑ APPROVED AS REQUESTED ❑ DENIED ❑ TABLED ❑ OTHER (List changes)
COMMENTS:
60_4dde41-eek �) Carlson
-OTSEGO Mcca,n
DEVELOPMENT AGREEMENT
BOULDER CREEK 2ND ADDITION
AGREEMENT entered into this day of July, 2016 between the City of Otsego
("City"), a municipal corporation organized under the laws of the State of Minnesota, and
Mattamy Minneapolis, LLC, a limited liability company under the laws of the State of
Delaware ("Developer").
1. Request for Plat Approval. The Developer has requested that the City
approve that plat entitled BOULDER CREEK 2ND ADDITION. The legal
description of the property covered by this Agreement is as follows:
OUTLOT E and OUTLOT F, BOULDER CREEK, according to the Plat on
file and of record at the Office of the County Recorder, Wright County,
Minnesota,
The Plat contains seventy eight (78) single family residential lots. The plat is located within
the City's East Sewer District, is zoned R-5, Single and Two Family Residential District as
approved by Ordinance adopted by the City Council on July 14, 2014. The Final Plat for
BOULDER CREEK was approved by the City Council on September 22, 2014.
2. Conditions of Plat Approval. The City hereby approves the Plat on
condition that the Developer enter into this Agreement, furnish the security required by it,
and record the Agreement with the Wright County Recorder or Registrar of Titles within
one hundred (100) days after the City Council approves the Agreement. The Developer
shall cooperate with the City in recording the Agreement and all required additional deeds
and documents and providing assurance that the Agreement and all required documents
have been properly and timely recorded.
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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 seventy eight (78) lots within the Plat does not occur until all required security has
been posted.
5. Changes in Official Controls. BOULDER CREEK 2ND 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
BOULDER CREEK 2ND 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, BOULDER CREEK 2ND ADDITION prepared by Carlson
McCain.
Plan B Grading, Drainage, and Erosion Control Plan prepared by Carlson
McCain and as finally approved by the City Engineer.
Plan C Sanitary Sewer, Water Main, Storm Sewer and Streets Plans for
BOULDER CREEK 2ND ADDITION, as prepared by Carlson
McCain and as finally approved by the City Engineer.
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Plan D Landscape Plan for BOULDER CREEK 2ND ADDITION, prepared
by Carlson McCain, and as finally approved by the City Zoning
Administrator.
7. Improvements. The Developer shall install and/or pay for the following:
A. Streets
B. Street lights
C. Site grading and ponding
D. Underground installation of all utilities
E. Sanitary sewer lines
F. Water lines
G. Storm water management improvements
H. Setting of lot and block monuments
I. Construction surveying and staking
J. Traffic control signs
Improvements shall be installed in accordance with City standards, the City
Code, and the above -referenced plans that have been furnished to the City and approved by
the City Engineer. The Developer shall obtain all necessary permits before proceeding with
construction. The City shall provide adequate field inspection personnel to assure
acceptable quality control, which will allow certification of the construction work. The City
may, when reasonably required to do so by the City Engineer, and at the Developer's
expense, have one (1) or more City inspectors and a qualified engineer inspect the work.
Within thirty (30) days after the completion of the improvements and before all retained
security is released, the Developer shall supply the City with a complete set of reproducible
"as constructed" and an electronic file of the "as constructed" plans in AutoCAD.DWG file
or a .DXF file, all prepared in accordance with City standards. Before the security for the
completion of utilities is fully released, iron monuments shall be installed in accordance
with Minnesota Statutes 505.02. The Developer's surveyor shall submit a written notice to
the City certifying that the monuments are installed following site grading, utility and street
construction.
8. Contractors/Subcontractors. City Council members, City employees, and
City Planning Commission members, and corporations, partnerships and other entities in
which such individuals have greater than a twenty five percent (25%) ownership interest or
in which they are an officer or director may not act as contractors or subcontractors for the
public improvements 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.
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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
within the area outlined in red on attached Exhibit A by December 31, 2016, with the
exception of the final wear course of asphalt on streets and landscaping. The final wear
course on streets shall be installed between August 15th and October 15 the first summer
after the base layer of asphalt has been in place one freeze thaw cycle. The Developer may
request an extension of time from the City to be submitted in writing to the City Clerk, for
which said extension shall be conditioned upon updating the security posted by Developer
to reflect cost increases and the extended completion date. Final wear course placement
outside of the above time frame must have the written approval of the City Engineer. The
City may impose additional conditions on the extension necessary to ensure performance.
The Developer shall install all listed improvements within the area outlined in blue
on attached Exhibit A by December 31, 2018, with the exception of final wear course of
asphalt on streets and landscaping. The final wear course on streets shall be installed
between August 15th and October 15th the first summer after the base layer of asphalt has
been in place one freeze thaw cycle.
12. Right of Entry. The Developer hereby grants to the City, its agents,
employees, officers and contractors an irrevocable right of entry to enter the Plat to perform
any and all work and inspections necessary or deemed appropriate by the City during the
installation of improvements by Developer or the City, or to make any necessary corrective
actions necessary by the City. Except in emergency situations, as defined by the City, the
City shall give the developer thirty (30) business days notice stating the deficiencies and
necessary corrections prior to making any corrective action. Said right of entry shall
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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 full implementation. The City may impose additional
erosion control requirements if, in the reasonable opinion of the City Engineer, they would
be beneficial. All areas disturbed by the excavation and backfilling operations shall be
reseeded forthwith after the completion of the work in that area. If the Developer does not
comply with the erosion control plan and schedule or any supplementary instructions, the
City may, with reasonable notice and opportunity to cure, take action as it deems
appropriate.
14. Grading Plan. Plat grading shall be in accordance with the approved
grading plan, Plan B. The plan shall conform to City specifications and the City Code.
Ponds, swales, and ditches shall be constructed on public easements or land owned by the
City. Within thirty (30) days after completion of grading and before any retained security is
fully released, the Developer shall provide the 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 pert -nits 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
W1
required to grade the street prior to paving, the cost of such grading shall be paid by the
Developer and drawn from the Developer's letter of credit. Should snow plowing be
necessary prior to street paving, the Developer shall be responsible for such plowing as may
be required by the Streets Supervisor. If, upon the Developer's request, the City agrees to
plow the street prior to acceptance, such work will be done upon agreement that the
Developer will hold harmless and indemnify the City from any and all liability claims
related to such work and pay all costs associated with that work. Any plowing undertaken
by the City will constitute no acceptance or evidence of acceptance of the street(s) in
question. Upon final completion of streets and acceptance by the City as a City street rather
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 is one
percent (1 %) of estimated construction costs of the public improvements, or $13,232.00.
20. Sewer Availability Charges. The Sewer Availability Charges for the Plat
due upon Final Plat approval is as follows; 78 lots at $2,310.00 per REC = $180,180.00.
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. 78 lots at $1,613.00 per REC = $125,814.00.
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. A portion of the Park and Trail Dedication
obligation will be met by dedication of land, Outlots A, C and D in this Final Plat and
additional land included in future phases which are to be deeded to City. The remainder of
the requirement is cash as follows; 78 lots x $3,400.00 per lot x 42.1% = $111,649.00. This
amount and $149,460.00 of Park and Trail Dedication deferred from Boulder Creek 1st
Addition shall be included in the Security (Letter of Credit) in Section 30 of this
Agreement. This total amount of $261,109.00 may be reduced pending City Council
on
approval of proposed Developer installed improvements within the Plat or abutting City
parcels and City right of way, and actual completion of that work if approved.
25. Storm Water Management Fee. Developer shall pay a Stormwater Charge
for LeFebvre Creels as follows: 50 acres x $2,180.00 per gross acre = $109,000.00.
Developer is undertaking certain work related to Storm Water Management in conjunction
with construction of this development including installation of Trunk Culverts ($64,696.00)
and Ditch Cleaning ($63,000.00) totaling $127,696.00, and resulting in a credit of
$18,696.00. This credit will be applied against Storm Water Management Fees for Boulder
Creek 31d Addition.
26. Transportation Infrastructure Cost. The collector street access fee for this
Plat is as follows: 78 lots x 1,460.00 per lot = $113,880.00.
27. Street and Traffic Control Signs. Before the City signs the final plat, the
Developer shall pay to the City $5,750.00 for installation of traffic control signs (stop signs,
street signs, dead-end signs). The said amount was calculated as follows: twenty three (23)
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: 7 lights x $2,000.00 per light for a total payment of $14,000.00. The
operation and maintenance of the street lights by the City shall not commence until such
time as the street lights are actually constructed. Street lighting shall conform to adopted
City Code.
29. City Engineering Administration and Construction Observation, Legal
Fees Escrow and City Fees. The Developer shall pay a fee for consulting engineering
administration following approval of the Plat. City engineering administration will include
consultation with Developer and its engineer on status or problems regarding the project,
monitoring during the warranty period, general administration and processing of requests
for reduction in security. Fees for this service shall be the actual amount billed for those
services, which are estimated to be three percent (3%) of the estimated construction cost of
the Plan C Improvements to be inspected, assuming nonnal 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. All City fees and costs billed to
Developer pursuant to this Agreement shall be billed at City's customary rates therefor.
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:
Engineering Services Escrow
8% of $ $1,323,185.00
$105,855.00
Legal Services Escrow
1 % of $1,323,185.00
$13,232.00
City Administration Fee
1 % of $1,323,185.00
$13,232.00
Street Signs
23 at $250.00 per sign
$5,750.00
Street Lights
7 at $2,000.00 per light
$14,000.00
Sewer Availability Charge
78 lots at $2,310.00 per REC
$180,180.00
Water Availability Charge
78 lots at $1,613.00 per REC
$125,814.00
Stormwater Impact Charge
50 acres x $2,180 per gross
acre reduced by the estimated
cost of work to be completed
resulting in a $18,696 credit
$00.00
Transportation Charge
78 units at $1,460.00 per unit
$113,880.00
Park and Trail Dedication Fee
78 lots x $3,400/lot x 42.1%-
deferred as a potential credit
$00.00
GIS Data Entry Fee
50 acres x $100 per acre
$5,000.00
Wetland Delineation Review
1 Review x $2,00.00 per
review
$2,000.00
TOTAL
$578,943.00
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.
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30. Security. To ensure compliance with the terms of this Agreement, and
construction of all public improvements, the Developer shall furnish the City with a cash
escrow or Irrevocable Standby Letter of Credit with automatic renewal provisions in the
amount of $2,295,555.00 said amount calculated as follows:
Site grading, erosion control and wetland protection
$00.00
Sanitary sewer (lateral & trunk)
$298,690.00
Watermain (lateral & trunk)
$305,170.00
Storm Sewer (lateral)
$233,815.00
Streets
$485,510.00
Landscaping
$156,000.00
Engineering services
$96,150.00
Park and Trail Dedication
$261,109.00
SUBTOTAL
$1,836,444.0
0
25% additional security
$459,111.00
TOTAL
$2,295,555.0
0
The issuer and form of the security (other than cash escrow) shall be subject
to City approval. The security shall be issued by a banking institution in good standing as
determined by the City and reasonably 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 initially ending three hundred sixty
four (364) days from the date of issuance and shall contain an automatic renewal provision
pursuant to which the security shall be deemed automatically renewed for successive one
year (or 364 day) periods unless the issuer shall provide written notice of non -renewal to the
City at least sixty (60) days prior to the expiration date of the letter of credit (a "Issuer
Notice of Non -Renewal"). If the Developer does not replace such security with substitute
security meeting the requirements hereof and reasonably acceptable to the City within thirty
(30) days after the Issuer Notice of Non -Renewal, then the City may draw down the security
and hold the proceeds thereof as security for the performance of the obligations of
Developer hereunder. 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. The City may draw down the security for any other violation of the terms of this
Agreement, which violation remains uncured after delivery of any required notice hereunder
and expiration of the applicable cure period. If the security is drawn down the proceeds
shall be used to cure any default and the balance held as security for the performance of any
remaining obligations of the Developer hereunder.
M
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 $252,976.00, which is the amount of warranty
security. A warranty security in the amount of $252,976.00 shall be posted with the City as
set forth in paragraph 34 of this Agreement. The warranty period shall be a twelve (12)
month period after the applicable work has been completed.
Notwithstanding the posting of that warranty security, the security shall not
be reduced below ten percent (10%) of the posted security until all Improvements have been
completed, all financial obligations to the City satisfied (which includes posting of warranty
security), and the required "as built" plans have been received by the City. The intent of this
Agreement is that the City shall have access to sufficient security, either security or
warranty security, to complete the project and insure warranty on all public improvements at
all times.
This security amount shall be submitted to the City prior to execution of the
Agreement. All administrative and legal fees related to plan review, drafting of this
Agreement and any other necessary items shall be paid to the City prior to execution of this
Agreement.
The security for this Agreement shall be an Irrevocable Standby Letter of
Credit with automatic renewal provisions conforming to the requirements of this Paragraph
or cash in the amount of $2,295,555.00.
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 weal-, 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 pennitting, the
trees, grass seed and sod shall be planted before Certificates of Occupancy are issued. All
grass seed shall be maintained so that turf is established within one (1) year of planting.
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If landscaping as required by the City Code and this Agreement is not timely
completed, the City, after reasonable notice and opportunity to cure, may enter the lot or
lots, perform the work, and apply any posted security toward the cost. The Developer, it
assigns or successors, Builder or Property Owner will provide will provide all trees, grass,
seed and sod within the Plat and shall maintain said plantings and warrant them to remain
alive, of good quality and disease free for twelve (12) months after planting. Any
replacement shall be warranted 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.
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 $252,976.00. 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 conunon deficiencies in
such public improvements.
35. Claims. The Developer shall pay any subcontractor within ten (10) days of
the Developer's receipt of payment by the City for undisputed services provided by the
subcontractor. In the event that the City receives claims from labor, materialmen, or others
that perform work required by this Agreement, which is provided to real property owned by
the City, and the sums due them have not been paid, and the laborers, materialmen or others
are seeping 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.
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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: Outlots A,B,C and D are to be conveyed to the City.
Outlots A, C, and D will be conveyed for park and trail purposes. Outlot B will be dedicated
for wetland purposes.
37. Responsibility for Costs.
A. Except as otherwise specified herein, the Developer shall pay all costs
incurred by them or the City in conjunction with the development of
the Plat, including, but not limited to, legal, planning, engineering, and
inspection expenses incurred in connection with development of said
Plat, the preparation of this Agreement, and all costs and expenses
incurred by the City in monitoring and inspecting development of the
Plat.
B. The Developer shall hold the City and its officers and employees
harmless from claims made by itself and third parties for damages
sustained or costs incurred resulting from Plat development, except for
any claims based on the negligence or willful misconduct of City, it
employees, agents and contractors, 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 reasonable attorney's fees.
C. The prevailing party shall reimburse the non -prevailing party for costs
incurred in the enforcement of this Agreement, including engineering
fees, attorney's fees, and costs and disbursements.
D. The Developer shall pay in full all bills submitted to it by the City for
obligations incurred under this Agreement within thirty (30) days after
receipt, unless the Developer is in good faith and with all due
diligence disputing the payment of the same. If the bills are not paid
on time, and such failure remains uncured as of a date thirty (30) days
after delivery of written notice to the Developer of such failure, the
City may halt all plat development work and construction, including
but not limited to the issuance of building permits for lots which the
Developer 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, and the failure of Developer to cure such default
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within thirty (30) days after delivery of written notice from the City (a "Developer Default")
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. This notice provision does not
apply if the work performed by the City or its contractors is of an emergency nature, as
determined at the reasonable discretion of the City. Should such emergency work be
required the City will make all reasonable efforts to notify the Developer as soon as
possible. When the City does any such work, the City may, in addition to its other
remedies, assess the cost in whole or in part pursuant to any applicable statutes or
ordinances.
39. Miscellaneous.
A. The Developer represents to the City that to best of its knowledge, the
Plat complies with all City, County, State, and Federal laws and
regulations, including but not limited to, Subdivision Ordinances,
Zoning Ordinances, and environmental regulations except where
specifically excluded by this agreement. If the City determines that
the Phase does not comply, the City may, at its option, refuse to allow
construction or development work in the plat until the Developer does
comply. Upon the City's demand, the Developer shall cease work
until there is compliance.
B. Third parties shall have no recourse against the City under this
Agreement.
C. The occurrence and continuance of a Developer Default under this
Agreement 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
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.
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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
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 Developer, 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
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facilities to be constructed in accordance with this agreement and plat
approval.
40. Notices. Required notices to the Developer shall be in writing, and shall be
either hand delivered to the Developer, their employees or agents, or mailed to the
Developer by registered mail at the following address: Mattamy (Minneapolis) Partnership,
7201 Washington Avenue South, Edina, MN 55439 Attention: Trace Mills, Vice President,
with a copy to Leslie C. Candes, Chief Legal Counsel U.S., 1900 Summit Tower Blvd.,
Suite 500, Orlando, FL 32810. 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
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STATE OF MINNESOTA
ss.
COUNTY OF WRIGHT
CITY OF OTSEGO
Jessica Stockamp, Mayor
Tami Loff, City Clerk
MATTAMY MINNEAPOLIS, LLC
DEVELOPER
M
Trace Mills, Vice President
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
16
STATE OF MINNESOTA )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2016 by Trace Mills, Vice President of Mattamy Minneapolis, LLC, a
Delaware limited liability company with authority and on behalf of the company.
DRAFTED BY:
MACARTI IUR LAW OFFICE, LLC
3601 Thurston Avenue North
Suite 103
Anoka, MN 55303
(763) 231-5850
Notary Public
17
CITY OF OTSEGO
COUNTY OF WRIGHT
STATE OF MINNESOTA
RESOLUTION NO.2016-63
RESOLUTION APPROVING REVISED DEVELOPERS AGREEMENT -
BOULDER CREEK 2ND ADDITION
WHEREAS, Mattamy (Minneapolis) Partnership has an approved Plat known as
BOULDER CREEK 2ND ADDITION; and
WHEREAS, the approved Plat requires construction of public improvements and
payment of City costs and fees; and
WHEREAS, those obligations are contained and memorialized in the attached
revised Developers Agreement which replaces the Agreement approved by the
Council on April 25, 2016; and
WHEREAS, the Developers Agreement also sets forth the security required to
assure satisfactory construction of public improvements and establishes the
various remedies available to the City in the event that Developer breaches the
terms and conditions of the Agreement.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of
Otsego, Wright County, Minnesota as follows;
1. The attached revised Developers Agreement between the City of Otsego
and Mattamy (Minneapolis) Partnership is hereby approved in form, subject
to modification of fees, charges and security as approved by City staff.
2. The Mayor and City Clerk are hereby authorized to execute the final
Developers Agreement on behalf of the City of Otsego.
ADOPTED this 25th day of July, 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
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