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HomeMy WebLinkAbout1995-09-13 Developer's Agreement/3 day IS AGREEMENT, made and enter ed into. this o f 1995, by and between the City of Oak Park Heights, a�m nicipal corporation under the laws of the State of Minnesota (the "city and Robert L. Brackey and Janet M. Brackey, husband and wife, (the "Developer WITNESSETH; That: CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA DEVELOPER'S AGREEMENT WHEREAS, the Developer has made application to the City Council for approval of a plat of land within the corporate limits of the City described as follows See Attached Exhibit A (the "Subdivision and WHEREAS, the City Council has on 1995, granted preliminary approval to the Subdivision, on the condition that the Developer enter into this Agreement stipulating the conditions for the installation of street, water, sewer and other public improvements as well as the development of on-site improvements hereinafter described, all in accordance with the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the premises and of the mutual promises and conditions hereinafter contained, it is hereby agreed as follows: Designation of Improvements: Improvements to be installed at Developer's expense by the Developer as hereinafter provided are hereinafter referred to as "Plan A. Improvements". Improvements to be installed by the City and paid for by Developer are hereinafter referred to as "Plan B Improvements". 1. PLAN A IMPROVEMENTS: The Developer will construct at Developer's expense the following improvements under Plan A according to the following terms and conditions: A. The Developer shall do all site grading including building sites, common greenway and open spaces, storm water storage ponds, surface drainage ways and all private driveways including sodding of boulevards, all in accordance with the approved grading, drainage and site plan. A grading plan with maximum two (2) foot contours, building elevations, drainage provisions, erosion control provisions and cross sections, as necessary, shall be submitted to and approved by the City prior to commencement of any site grading. Any changes to the grading plan during construction shall be submitted to the City for approval. B. The Developer shall control soil erosion ensuring: 1. All development shall conform to the natural limitations presented by the topography and soil of the subdivision in order to create the best potential for preventing soil erosion. The Developer shall submit an erosion control plan, detailing all erosion control measures to be implemented during construction, said plan shall be approved by the City prior to the commencement of site grading or construction. 2. Erosion and siltation control measures shall be coordinated with the different stages of development. Appropriate control measures as may be periodically required by the City shall be installed prior to development when necessary to control erosion. 3. Land shall be developed in increments of workable size such that adequate erosion and siltation controls can be provided as construction progresses. The smallest practical area of land shall be exposed at any one period of time. 4. Where the topsoil is removed, sufficient arable soil shall be set aside for respreading over the developed area. The topsoil shall be restored to a depth of at least four (4) inches and shall be of a quality at least equal to the soil quality prior to development. C. The Developer shall place iron monuments at all lot and block corners and at all other angle points on boundary lines. Iron monuments shall be placed after all street and lawn grading has been completed in order to preserve the lot markers for future property owners. D. The Developer shall be responsible for maintaining the location of and protecting curb stops, water services and sewer services. Any service or curb stop damaged shall be repaired or replaced as specified by the City. The Developer shall make all necessary adjustments to the curb stops to bring them flush with the topsoil (after grading) or driveway surface. E. The Developer shall be required to provide landscaping and screening as determined by the City and as required by the ordinances of the City. All commercial developments shall submit a landscaping plan to the City for approval prior to commencing construction. In no instance shall the Developer plant more than 50 percent of the same type of tree. A detailed landscape plan shall be submitted to and require the approval by the City prior to commencement of final grading and landscaping construction on each site to be built upon. A landscape plan has been submitted to and approved by the City for this particular development with said plan being contained within the Menards Conditional Use Permit. F. The Developer shall install all street name signs at all intersections and provide other traffic control signs within the subdivision as determined to be necessary by the City. Temporary street name signs shall be installed by the Developer prior to issuance of the first building permit. The temporary signs shall be constructed of durable materials to be approved by the Building official. Developer's obligations, under this agreement, shall not include any electric traffic signals. G. The Developer shall remove all diseased trees before building permits will be issued. H. The Developer shall be responsible for street maintenance, including curbs, boulevards, sod and street sweeping until the project is complete. All streets shall be maintained free of debris and soil until the subdivision is completed. Warning signs shall be placed when hazards.develop in streets to prevent the public from traveling on same and directing attention to detours. If and when the street becomes impassible, such streets shall be barricaded and closed. In the event commercial buildings are occupied prior to completing streets, the Developer shall maintain a smooth driving surface and adequate drainage on all temporary streets. The Developer shall be responsible for the removal of snow from all gravel streets. The repair of any damage done to the streets or public utilities shall be the financial responsibility of the Developer. I. The Developer shall furnish street lights in accordance with the City's street lighting plan. 3 General Requirements: 1. Street lighting shall be owned, installed, operated and maintained by the electric utility company (NSP) City and utility company shall enter, into a contractual agreement on the rate and maintenance of the street lighting system. 2. It shall be the responsibility of the Developer to: a. Reimburse the City for the first two (2) years of operating cost of the street lighting system. b. Pay the electric utility company any cost incurred in the installation of the street lighting units not covered in the electric utility company rate for this service. This payment shall be required to be guaranteed as part of the Plan A security. c. The two year payment schedule (policy) shall be put into effect upon installation of each lighting unit. d. All these costs shall be guaranteed by part of the Plan A security. J. The Developer shall dedicate a reasonable portion of this proposed subdivision as the City Council reasonably determines to the public for public uses as parks, playgrounds, public open space, trails, or other conditions as required by the City and as shown on the final plat. In lieu of complete land dedication, Developer shall upon execution of this Developer's Agreement, pay a park dedication fee now prescribed by ordinance and /or resolution. The cash park dedication fee for this subdivision is in the amount of $98,735.00. No additional park dedication fees shall be required upon replatting of outlot A or E. K. The Developer shall dedicate and survey all drainage storm water and hold ponds as required by the City as shown on the final plat. The Developer shall be responsible for storm sewer cleaning and holding pond dredging, as required, by the City prior to completion of the development. The City of Oak Park Heights is requiring Developer to dedicate additional storm water drainage area and holding ponds to serve lands outside of Developer's project. Such additional areas are incorporated within the drainage easement depicted on the final plat and upon execution of this Development Agreement and the recording of the final plat conveyed to the City of Oak Park Heights. The City has agreed to pay the Developer a sum to be determined to be the fair market value that is established by appraisal secured by the City as and for full and final compensation for the additional storm water drainage area. L. The Developer shall be responsible for securing all necessary approvals and permits from all appropriate federal, state, regional and local jurisdictions prior to the commencement of site grading or construction and prior to the City awarding construction contracts for public utilities. The City shall secure the appropriate MnDOT access permits for Krueger Lane to connect to both Street. M. Drainage and utility easements. 10 foot drainage and utility easements shall be provided along all lot lines in Lot 1, Block 1, and in subsequent replattings of Outlots A and B. ESTIMATED COST 2. DESCRIPTION OF IMPROVEMENTS' Lc_t Block 1 1 Boulevard and swale sod 1,620.00 2. Landscaping 9,220.00 3. Street signs 700.00 4. Street lights 1,440.00 5m Grading 11,500.00 6. Pond grading and seeding 8,000.00 7. Erosion Control 1,560.00 8. Pond Protection Restoration 3,000.00 9. Utility Protection Repair 2,200.00 10. Street Protection Repair 4,680.00 5 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: 43,920.00 ESTIMATED ENGINEERING, LEGAL AND ADMINISTRATIVE (20%): 8,780.00 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: 53,700.00 SECURITY REQUIREMENT (25% TOTAL PLAN A ESCROW 3. CONSTRUCTION OF PLAN A IMPROVEMENTS. A. Construction. The construction, installation, materials and equipment shall be in accordance with the plans and specifications approved by the City. B. Inspection. All of the work shall be under and subject to the inspection and approval of the City and, where appropriate, any other governmental agency having jurisdiction. C. Easements. Subject to the provisions of 1K above, the Developer shall dedicate to the City, prior to approval of the final plat, at no cost to the City, all permanent or temporary easements necessary for the construction and installation of the Plan A and Plan B Improvements as determined by the City. All such easements required by the City shall be in writing, and in recordable form., containing such terms and conditions as the City shall determine. D. Faithful Performance of Construction Contracts The Developer will fully and ..faithfully comply with all terms and conditions of any and all contracts entered into by the Developer for the installation and construction of all Plan A Improvements and hereby guarantees the workmanship and materials for a period of one year following the City's final acceptance of the Plan A Improvements. Concurrently with the execution hereof by the Developer, the Developer will furnish to, and at all times hereinafter maintain with the City, a cash deposit, certified check, or an Irrevocable Letter of Credit, based on one hundred and twenty- five percent (125%) of the total estimated cost of Plan A Improvements as indicated in Section 2. An Irrevocable Letter of Credit shall be for the exclusive use and benefit of the City of Oak Park Heights and shall state thereon that the same is 6 13, 200.00 65,900.00 4 issued to assure performance by the Developer of all the terms and conditions of this Development Agreement and construction of all required improvements in accordance with the ordinances and specifications of the City. The City reserves the right to draw, in whole or in part, on any portion of the Irrevocable Letter of Credit under the terms and conditions of this Agreement. The Irrevocable Letter of Credit shall be renewed or replaced by not later than twenty (20) days prior to its expiration with a like letter or bond. E. Reduction of Escrow Guarantee. The Developer may request reduction of the Letter of Credit or cash deposit based on prepayment or the value of the completed improvements at the time of the requested reduction. The amount of reduction will be determined by the City and such recommendation will be submitted to the City Council for action. Following any payment for a Plan A improvement which. is within the Engineer's estimate, the City may consider and allow a reduction of the Letter of Credit up to the rate of $1.25 for every dollar that has been paid out of the escrow /Letter of Credit provided that the project is on schedule, the Developer is not in default under the terms of the Development Agreement and/or no extraordinary expenses beyond the engineering estimate have been incurred during the course of the project. 4. PLAN I3 IMPROVEMENTS. The following improvements will be installed by the City at the Developer's expense according to the following terms and conditions: 1. DESCRIPTION OF IMPROVEMENT ESTIMATED COST A. Sanitary sewer 23,800.00 B. Water main 39,830.00 C. Storm Sewer 10,560.00 D. Base Preparation 37,600.00 E. Curb and Gutter 12,050. G. Surfacing Streets 81,560.00 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN B IMPROVEMENTS: $205,400.00 7 ESTIMATED ENGINEERING, FISCAL AND ADMINISTRATIVE 20 41,080.00 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN B IMPROVEMENTS: $246,480.00 SECURITY REQUIREMENT (25% 61,620.00 TOTAL, PLAN B ESCROW $308,100.00 2. That prior to the City ordering the installation and awarding the contracts as it relates to the Plan B improvements and the costs therefor, the Developer shall deposit with the City of Oak Park Heights, the total estimated cost of the Plan B improvements plus a 25 security requirement related thereto for a total of $308,100.00. The City shall pay from said deposit all expenses related to the construction of the Plan B improvements providing for the construction of same as follows: A. Construction. After the preparation of preliminary plans and estimates by the City, the City Council shall take bids on the projects and thereafter award the contract pursuant to law for the installation of the Plan B improvements under the City's supervision. B. Escrow. No work shall be commenced under this Agreement until the Developer shall have filed with the City a cash deposit, certified check or Letter of Credit (in a form to be approved by the City Attorney) in the amount equal to the total estimated cost of the Plan B improvements plus a security requirement of 25 in the total amount of $308,100.00. The City shall have the right to apply against the Letter of Credit all bills incurred by the City with regard to the Plan B improvements, however, the City shall provide the Developer the opportunity to pay for said improvements as bills are incurred, in cash, rather than applying payments as against the Letter of Credit provided to the City, if a Letter of Credit is used in lieu of a cash escrow by the Developer. In such case, the Developer shall have 10 business days from the time of submission of the bill by the City to the Developer to pay to the City such amount in 8 cash so that the City can use the payment to pay the amount due in lieu of drawing down on the Letter of Credit or other escrow on file with the City of Oak Park Heights. Notwithstanding the .fact that the Developer may file with the City the cash deposit or Letter of Credit at the execution hereof, no work shall be commenced on the Plan B improvements until the earlier of May 1, 1996 or the date requested by the Developer by written notice given to the City not less than forty-five days prior to such date; and the Plan A improvements need not be commenced prior to such earlier date. The Developer hereby agrees to grant to the City the right to deposit storm water on the Developer's property prior to the commencement of the construction of the Plan B _improvements. The Developer agrees that if requested, the Developer will execute a Temporary Easement or Consent to Enter and Waiver of Trespass Agreement or other similar documents as requested by the City for the deposit of said storm water. The storm water which may be deposited is that which under the existing City storm water plan would be conducted on and under Krueger Lane if the lane was constructed. C. The Developer shall be provided with a copy of the plans and specifications as prepared by the office of the City Engineer for the Plan B improvements and shall be allowed the opportunity to comment on same prior to final release of the bid specifications by the office of the City Engineer for purposes of receiving bid on the improvements. The Developer shall also be notified of the bid opening date and provided the opportunity to comment on the bids received prior to the award of the bid on the Plan B improvements. The Developer may recommend rejection of al bids and the rebidding of the project or any portion thereof; however, such recommendation is not binding on the City of Oak Park Heights and the City may award the contract based upon the bids received if it, in its absolute discretion, determines that the bids so received are reasonable. 9 The Developer shall also be provided the opportunity to request that the City Engineer consider including certain contractors that the Developer might suggest to be added to the proposed bidder's list. Final determination of the proposed bidder's list shall rest in the discretion of the City Engineer. D. All such improvements as constructed shall become the property of the City of Oak Park Heights. The Developer shall dedicate to the City as a condition of approval of the final plat at no cost to the City all permanent and temporary easements necessary for the construction of such improvements as determined by the City, except for the payment required under paragraph K which commences on page 4 hereof. E. Contracts. All such construction contracts as awarded by the City of Oak Park Heights to construct the Plan B improvements shall provide for a guarantee of the workmanship and materials for a period of one year following the completion of construction of the Plan 13 improvements. All such contracts shall also conform to the ordinances and specifications of the City in the construction of all Plan 13 improvements. F. Reduction of Cash De osit Letter of Credit. The City shall be allowed-to draw upon the cash deposit/Letter of Credit/escrow for the payment of any and all construction contracts awarded as it relates to the Plan B improvements, or any ..portion or increment thereof, upon certification by the City Engineer of completion of construction of the Plan 13 improvements, or any portion or increment thereof. Upon final completion of the Plan B improvements and certification of same by the City Engineer, any remaining funds on hand, provided as security to secure the construction of the Plan B improvements, shall be refunded to the Developer. 10 G. Change Orders. No change order increasing the contract expense shall be authorized by the City without Developer written consent. H. Estimates. The above estimates are engineering projections only. Developer shall be responsible for all actual expenses incurred in the securing and installing of all Plan B improvements. 1. Connection Charges. All connection charges and fees shall be paid `by Developer. The City Engineer shall compute the connection fee as prescribed by ordinance /resolution as to this development and advise the City Clerk as to the appropriate fee to be collected. Connection fees for all lots and blocks are Lii'' due and payable upon execution of this ri agreement and are as follows: Lot 1, Block 1 $125,785.80 Connection fees for all outlots are due and payable upon sale, transfer, replatting, rezoning or upon the application for building permit being filed With the City, whichever first occurs. The connection fees for each outlot is to be paid in total at the time that any condition above listed occurs with regard to that outlot are presently: 6. GENERAL: Outlot A Outlot B $114,717.10 $257,099.50 The City reserves the right to modify or adjust the manner of computation of connection fees from time to time which may adjust or increase the connection f ees on the outlots at such time as they become due. 5. The Developer shall reimburse the City of Oak Park Heights for previous expenses relating to this development and for future engineering, legal and administrative costs relating to the public improvements involved and to be incurred by the City of Oak Park Heights in either Phase A or Phase B of this development. A. Binding Effect. The terms and provisions hereof shall be binding upon and inure to the benefit of the heirs, representatives, 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 11 more than one, shall mean each and all of them. The Agreement, at the option of the City, shall be placed on record 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. B. Final Plat Approval. The City agrees to give final approval to the plat of the Subdivision upon execution and delivery of this Agreement and of all required documents and security, subject to compliance with the Ordinances of the City and terms and provisions hereof. C. Incorporation of Reference. The detail and reports set forth in the file of the City Planner (Northwest Associated Consultants, Inc. File No. 798.02 94.12) and the file of the City Engineer, (Bonestroo, Rosene Anderlik and Associates I File No. 55124) are incorporated by reference herein to the extent identified in Exhibit B annexed hereto. D. The City of Oak Park Heights shall file the Developer's Agreement of record in the office of the County Recorder. Providing that the Developer is not in default under the terms of the Development Agreement, the City shall provide appropriate releases to the financial aspects of same and documentation to individual buyers of lots. E. As to any and all administrative, legal or engineering costs which the Developer is expected to pay to the City of Oak Park Heights, which costs are to be offset against the cash escrows or Letters of Credit which the Developer has filed and provided to the City of Oak Park Heights, the Developer shall be given the opportunity to review and comment on such costs prior to the application by the City of Oak Park Heights to the escrow for the payment of same. Notwithstanding the above, the City of Oak Park Heights shall be the final authority in determining the fairness and reasonableness of all such costs incurred; and the decision by the City Council for the City of Oak Park Heights on any such dispute shall be binding. 12 F. Establishment of Construction Schedules. Subject to the first full paragraph on page 9 hereof, the City Engineer shall establish construction schedules for Plan A and Plan B improvements and shall consult with Developer prior to establishing same. G. Outlot Development. No outlot is eligible for a building permit pursuant to §402.01 Subd. P until the same is replatted pursuant to the ordinances of the City of Oak Park Heights. H. Rezoning. The City has rezoned Lot 1, Block 1, Brackey Addition from "0" open space to "B- 2" as provided in City ordinance 401.11. All other Outlots and area within the plat shall remain "0" open space until so modified by future action of the City Council, if any, following application to rezone being submitted. Easements. All public utility and drainage easements shall be depicted on the plat and dedicated to the City of oak Park Heights. J. MnDOT Approvals Final plat approval shall be subject to the comments and recommendations of the Department of Transportation as provided pursuant to Minn. State §505.03, subd. 2. K. Water Maria ement Or anizat ions Developer shall secure approval from all water management organizations affected by this development prior to final approval. 7. 58th Street Construction Prgject.. Developer acknowledges that the City of Oak Park Heights plans to build 58th Street adjacent to developer's lands as depicted in the preliminary plat. Affecting the 58th Street construction project, Developer agrees as follows A. Developer acknowledges that its lands depicted within the plat are "benefited" by the 58th Street project. The City will to install at its own expense, the storm sewer pipe extending Westerly from Krueger Lane within the drainage and utility easement along the North line of Lot 1, Block 1, Brackey Addition. 13 B. Developer acknowledges that its fair share of the cost of such project is in the amount of $162,355.00 and represents the benefit as assessed for the entire plat of Brackey Addition. C. Developer agrees to have said amount assessed as against the plat of Brackey Addition and waives any Notice of Hearing and appeal rights otherwise afforded under Minn. Stat. §424.061 and §429.081. D. Developer waives green acres classification of its land for the purpose of the Assessment for 58th Street project and directs the Office of the Washington County Assessor and Auditor /Treasurer to process and collect all City assessments so levied for said 58th Street project as if the green acres classification did not exist. Developer shall not be required Lo waive such green acres classification for other real estate tax purposes. B. Developer agrees that should the assessment not be paid when due, the City may withhold Building Permits until such time as payments are made current as to any affected lot or parcel. Such remedy is in addition to and not in replacement of any remedy otherwise available to the City. F. Developer agrees to coordinate its construction schedules with that of the City of Oak Park Heights so as to not conflict with, impede, or disrupt the City's construction of 58th Street. All such communication shall be coordinated through the offices of the City Engineer. IN WITNESS 'HEREOF, the City and Developer have caused this Agreement to be duly executed on the date and year first above written. 14 In the presence of: In the presence of: STATE OF MINNESOTA ss. COUNTY OF WASHINGTON) 15 CITY OF OAK PARK HEIGHTS By Barbara H. O'Neal Mayor Michael J. Robertson Administrator By Robert L. Brackey 4 By 17 (1 111 ranet M. Brackey On this day of 1995, before me a Notary Public, within and for said County personally appeared Barbara H. O'Neal and Michael J. Robertson, 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 STATE OF MINNESOTA ss. COUNTY OF WASHINGTON) On this 13H-) day of 4"()Feillhfr 1995, before me a Notary Public, within and for said County personally appeared ROBERT L. BRACKEY and Janet M. Brackey, husband and wife, to me personany known, being each by me duly sworn did say that they are respectively the Owner and Developer named in the foregoing instrument; and that said instrument was signed by ROBERT L. BRACKEY and Janet M. Brackey as their own free act and deed. SHANE L. ANDERSON NOTARY PUBLIC MINNESOTA My Comm Expires Jan. 31, 2000 THIS INSTRUMENT WAS DRAFTED BY: Mark J. Vierling Eckberg, Lammers, Briggs, Wolff Vierling, P.L.L.P. 1835 Northwestern Avenue Stillwater, MN 55082 (612) 439-2878 oph \dev'agree \brackey\Augus t 31, 1995 16 a r Notary Public