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Home My WebLink About2022-07-26 CC Meeting Packet Enclosure - DA Amendment No 1 tt, M Oak Park Heights Request for Council Action Meeting Date July 26th, 2022 Time Required: 1 Minutes Agenda Item Title: Approve Developer's Agreement-Amendment#1 - Palmer Station Agenda Placement Consent Agenda Originating Department/Requestor Eric Johnson, City Administrator Requester's Signature Action Requested Approve Developer's Agreement-Amendment#1 - Palmer Station Background/Justification (Please indicate if any previous action has been taken or if other public bodies have advised): Stemming from past requirements for long-term commitments from the Developer to ensure the final retaining wall located between Lots 7 & 8 is appropriately constructed and remains in proper condition, the City has finalized the Developer's Agreement#1 which is ready for Council consideration. While a catastrophic wall failure would now appear unlikely, the document requires periodic inspections and outlines that repair costs are to be those of the Developer should the HOA not function or fail to act. If approved Staff would record this document against the titles of both Lots 7 & 8 to establish a clear record of responsibility should this wall require repair prior to its useful life expiring. Page 37 of 136 CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA DEVELOPERS AGREEMENT AMENDMENT NO. 1 PALMER STATION THIS AGREEMENT, made and entered into this 15' day of -, , 2022, by and between the City of Oak Park Heights, a municipal corporation under the laws of the State of Minnesota (the "City"), and Creative Homes, Inc. and Creative Home Construction Investments LLC, (the "Developer"). WITNESSETH: WHEREAS, the Developer and the City entered into a Developer's Agreement dated October 3, 2017 regarding a new residential home subdivision development known as and platted as "Palmer Station"legally described as follows: See Attached Exhibit A (the "Subdivision"); and, WHEREAS, during the course of construction, the Developer and its subcontractor have made modifications to a substantial retaining wall structure located on Lots 7 & 8 of the plat; and WHEREAS, the modifications to the retaining wall structure were made out of specification with the original plans and designs for the retaining wall, and constructed without the oversight or approval of Developer's structural engineer such that the retaining wall has not been certified by a structural engineer; and WHEREAS the parties have entered into and executed a Memorandum of Understanding dated December 7, 2021 regarding the retaining wall but desire to enter into this formal Amendment No. 1 to the Developer Agreement dated 10/3/17 in order to memorialize their amended approvals and obligations regarding this issue. NOW, THEREFORE, in consideration of the foregoing recitals which are incorporated herein by reference, and of the agreements and conditions hereinafter contained, it is hereby agreed as follows: 1. Amendment Only. Except as hereinafter modified by this Amendment, all terms, conditions and provisions of the original Developer's Agreement between the Parties shall remain in effect and binding upon the Parties. 2. Revised Wall Specifications. The Developer has requested to install the retaining walls as outlined in the attached design - referenced as Exhibit B hereto - dated 10-8-21 and such design shall be followed by the Developer and their contractors. The Developer shall Page 38 of 136 provide to the City a final as-built ensuring that construction dutifully followed the design by a date not later than 6/30/2022. The Developer further warrants to the City that the wall design, (including but not limited to its interface and connections with other walls and landscaping), is appropriate, stable, secure and built to best practices standards in such industry and the Developer shall immediately correct any known defects in the construction of the wall at its sole expense. 3. Warranty. The Developer shall ensure that the wall remains in stable, safe and functional condition through 12/31/2032 and does hereby provide a warranty through 12/31/2032. 4. Inspections and corrections. The Developer shall cause and ensure that there are periodic inspections (not less than once every 36 months) of such wall(s) to ensure that such walls remain in a safe and stable condition with a written inspection report provided to the City within 30 days of such inspection. If the inspection reports show or the City has other reasonable cause to believe there are defects in such wall, then the City may undertake further inspections by a licensed structural engineer to opine upon the stability and integrity of the wall - such inspection costs shall be the Developer's. If corrections are required, then the Developer shall promptly make the corrections at its sole expense. If the Developer does not make corrections within a reasonable time period, the City may implement any necessary corrections and which undertakings by the City shall be the full financial responsibility of the Developer and/or assessed against the homeowner's association of the Palmer Station development. 5. Indemnification. To the fullest extent permitted by law, the Developer and its transferees, successors and assigns shall and does fully release, defend and indemnify the City from any and all claims, losses, damages, or lawsuits associated with any form of failure of such walls regardless of the Developer's remaining interest in the Development. Such release and indemnification has no expiration date and shall survive the completion of the development and sale of all lots. 6. Future Lot Owners. Developer shall inform any future prospective owner(s)of Lot 8 of this Agreement and its recording against the title. 7. Transfer to HOA. All of the Developer's responsibilities outlined in this Amendment shall remain in effect upon the Developer until such time as the Homeowner Association becomes responsible for the retaining wall between Lots 7 & 8, pursuant to which the Developer shall ensure its obligations hereunder are mutually agreed to by and transferred to the HOA - which shall include the retaining wall between Lots 7 & 8 in the Development. Should the City be unable to enforce any such provisions outlined above upon the HOA, including due to its 2 Amendment No. 1 to Developer's Agreement of Palmer Station Page 39 of 136 failure to dutifully incorporate and/or function, or financial insufficiency of the HOA, then the Developer shall remain liable for any and all such costs regardless of its remaining interest in the Palmer Station development. 8. Stop Work Order. With the full and proper execution of this Amendment by all parties and satisfactory completion of its elements, the City will release any stop work orders or other construction limitations on Lot 8 otherwise known as 5573 Oak Cove N. related to the issues outlined in this document. 9. Binding Effect. The terms and provisions hereof shall be binding upon and inure to the benefit of the heirs, representatives, transferees, successors and assigns of the parties hereto and shall be binding upon all future owners of all or any part of the Subdivision and shall be deemed covenants running with the land. References herein to Developer, if there be more than one, shall mean each and all of them. 10. Recording: This Amendment shall be recorded and placed on record with the Washington County Recorder so as to give notice hereof to subsequent purchasers and encumbrances of all or any part of the Subdivision and all recording fees, if any, shall be paid by the Developer. 11. Incorporation by Reference. All plans, special provisions, proposals, specifications and contracts for the improvements furnished and let pursuant to this Amendment shall be and hereby are made a part of this Agreement by reference as fully as if set out herein in full. 12. Administrative and Miscellaneous Expenses. Any and all administrative, legal or engineering costs incurred by the City in conjunction with this Amendment shall be paid by the Developer, which if not paid directly by the Developer, then the costs may be offset against the Performance Bond or other securities which the Developer has filed and provided to the City of Oak Park Heights. IN WITNESS WHEREOF, the City and Developer have caused this Amendment No. 1 to the Developer Agreement to be duly executed on the date and year first above written. [SIGNATURE PAGES TO FOLLOW] 3 Amendment No. 1 to Developer's Agreement of Palmer Station Page 40 of 136 In the presence of: CITY OF OAK PARK HEIGHTS Mary McComber Mayor Eric Johnson City Administrator STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTON) On this day of , 2022 before me a Notary Public, within and for said County personally appeared Mary McComber and Eric Johnson, to me personally known, being each by me duly sworn did say that they are respectively the Mayor and the Administrator of the City of Oak Park Heights, the municipal corporation named in the foregoing instrument; and that the seal affixed to said instrument is the corporate seal of said corporation, and that said instrument was signed and sealed on behalf of said municipal corporation by authority of its City Council and said Mayor and Administrator acknowledged said instrument to be the free act and deed of said municipal corporation. Notary Public 4 Amendment No. 1 to Developer's Agreement of Palmer Station Page 41 of 136 In the presence of: Creative Home Construction Investments LLC / 1 M ., Qte‘ez=ef -U I i(L IL- „,, �, Nick Hackworthy Its: President In the presence of: Creative”, -lame . Inc. \ - CL Nick acfrvvo y Its: President STATE OF MINNESOTA I �•,, .„ MOLLY KATHRYN GOBLER j NOTARY PUBLIC ss. - ' MINNESOTA COUNTY OF WASHINGTON) I „•,:. my Commission t:xci es Jan.31,2021 On this i 5 day of 2022, before me a Notary Public, within and for said County personally appeared Nick Ha .worthy to me personally known, by me duly sworn did say that he is the President of Creative Home Construction Investments, LLC, a Minnesota Limited Liability Company and President of Creative Homes, Inc., a Minnesota Corporation, named in the foregoing instrument; and that said instrument was signed and sealed on behalf of said Limited Liability Company and Corporation by authority of their respective Boards of Directors and said Nick Hackworthy acknowledged said instrument to be the free act and deed of said Limited Liability Company and Corporation. fi / fr 2 Notary Pu, k 5 Amendment No. I to Developer's Agreement of Palmer Station Page 42 of 136 THIS INSTRUMENT WAS DRAFTED BY: Kevin S. Sandstrom Eckberg,Lammers,P.C. 1809 Northwestern Avenue Stillwater, MN 55082 (651)439-2878 6 Amendment No. 1 to Developer's Agreement of Palmer Station Page 43 of 136 EXHIBIT A LEGAL DESCRIPTION All that part of the Southwest Quarter of the Northwest Quarter of Section 4 in Township 29 North of Range 20 West of the Fourth Meridian, described as follows, to-wit: Beginning at the Northwest corner of said Southwest Quarter of Northwest Quarter; running thence south along the west line thereof 897.2 feet; running thence East and parallel with the North line thereof 485.52 feet to a point; running thence North and parallel with the west line thereof 897.2 feet to the north line thereof; running thence West along the north line thereof 485.52 feet to the point of Beginning. EXCEPT FOR: That property previously convened to Quentin W. Nordeen and Evelyn E. Nordeen by warranty deed dated April 7, 1959, recorded April 7, 1959 in Book 219 of Deeds, page 275 which is more particularly described as follow: All of that part of the Southwest quarter (SW1/4) of the Northwest quarter (NW 1/4)of Section Four (4), Township Twenty-nine (29) North, Range Twenty (20) West, Washington County, Minnesota, described as follows: Beginning at a point on the West line of the Southwest Quarter of the Northwest Quarter (SW 1/4 of NW 1/4) of Section Four (4), Township Twenty-nine (29)North, Range Twenty (20) West, Washington County, Minnesota, Seven hundred ninety-seven and two-tenths (797.2) feet South of the Northwest (NW) corner of said Southwest Quarter of the Northwest Quarter (SW 1/4 of NW 1/4) Section Four (4); thence South along said West line of Southwest Quarter of the Northwest Quarter (SW 1/4 of NW %)One hundred (100) feet; thence East and parallel with the North line of the said Southwest Quarter of the Northwest Quarter (SW 1/4 of NW 1/4) One hundred eight-three (183) feet; thence North and parallel with said West line of Southwest Quarter of the Northwest Quarter (SW 1/4 of NW 1/4) Section Four (4), One hundred (100) feet; thence West and parallel with said North line of Southwest Quarter of the Northwest Quarter (SW 1/4 of NW '/) of Section Four(4), One hundred eighty-three (183) feet to the point of beginning. and EXCEPT that property previously conveyed to Jordyce M. Johnson, dated May 10, 1963 in Book 262 of Deeds, page 346; AND to Simon O. Johnson 1963, recorded October 14, 1963 in Book 262 of Deeds, Page 346 which is more particularly described as follows: The North One hundred fifty-three (153.0) feet of the West Four hundred eighty-five and fifty-two hundredths (485.52) feet of the Southwest Quarter of the Northwest Quarter 7 Amendment No. 1 to Developer's Agreement of Palmer Station Page 44 of 136 (SW 1/4 of NW '/) of Section Four (4), Township Twenty-nine (29) north, Range Twenty (20) West, according to the United States Government Survey thereof and EXCEPT that property previously conveyed to Allan T. Palmer and Georgann E. Palmer by warranty deed dated April 20, 1972, recorded April 21, 1972 in Book 316 of Deeds, page 161 which is more particularly described as follows: That part of the Southwest Quarter of the Northwest Quarter(SW 1/4 of NW '/4) of Section 4, Township 29 N, Range 20 W, described as follows: Beginning at a point on the West line thereof 153 feet South of the Northwest corner; thence East parallel with the North line 485.52 feet more or less to intersect the West line of Tract A of Registered Land Survey No. 70; thence South along said West line of Registered Land Survey 100 feet; thence West parallel with the North line of said Southwest Quarter of the Northwest Quarter (SW '/4 of NW '/) to the West line thereof; thence North along the West line 100 feet to the beginning. TO BE PLATTED AS Lots 1 through 13, Block 1 PALMER STATION PALMER STATION y 1 I 1 I ; I y 1 1 1 ! 4 „rKmur••^ w. .. sR__ 1. �� • _t` 1_ r_•_ 1 LYS r _ T "' y '®7 (.....: LI ,tf' I t "`ki` 0 , \:,L- -,1 max. r :;• y ..J ----.... F....„7,,,,,,,,...,,.-„, IM\ A, i , i i lb ili , ili , __:•;' -, .. , : 1 ,-.2:z.— r - - r r _1 •="...,47.4.-14:-.17;47:: /l f -r _ a<GFEENAK.K s .'l/.. J `-` 1 i3� cif — - L _ -�_ F lelnw.- I■ X11 \ ....... • CORNERSTONE s 1..Iw LK//iai... 1.V• a rV ✓ .rVLV�r V. u 11�! ....l riaK y µYu.... UL N4rV.♦ `•Wi•••YRV.YINf".L-_ Page 45 of 136