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HomeMy WebLinkAbout1994-07-28 CA Ltr Forwarding Final Developer's Agreement Draft 411 C Cent ' l LAW OFFICES OF P lc)ect ECKBERG, LAMMERS, BRIGGS, WOLFF & VIERL,Up3N0 , 1835 NORTHWESTERN AVENUE R1.110EL x ��// JUL J J J U 2 L s ��Id STILLWATER, MINNESOTA 55082 1a� LYLE J. ECKBERG (612) 439 -2878 JAMES F. LAMMERS FAX (612) 439 -2923 ROBERT G. BRIGGS PAUL A. WOLFF MARK J. VIERLING GREGORY G. GALLER KEVIN K. SHOEBERG THOMAS J. WEIDNER July 28, 1994 SUSAN D. OLSON MR JOSEPH ANDERLIR MR SCOTT RICHARDS BONESTROO ROSENE ANDERLIK ET AL NORTHWEST ASSOCIATED CONSULTANTS 2335 W HIGHWAY 36 5775 WAYZATA BLVD # 555 ST PAUL MN 55113 ST LOUIS PARK MN 55416 MR BARRY McKEE 324 SOUTH MAIN STREET STILLWATER MN 55082 RE: Oak Park Heights - East Oaks PUD Gentlemen: Enclosed herewith please find the final draft of the Developer's Agreement. The text of the agreement was approved by the Council on their July 25th meeting subject to final approval by staff and submission by the Developer of all final documentation required by staff and financial guarantees. You will note that I have made yet one additional adjustment in paragraph G on page 3 to reflect a communication from Mr. Barry Stack that the Office of the Washington County Recorder /Surveyor would not allow the designation on the PUD drawing of the roads as private drives, therefore, I have clarified that situation within the Development Agreement which will, of course, be recorded along with the hard shell of the PUD. As soon as the Developer is ready to - - ect'a closing on this matter, producing the final document- ion d the financial guarantees, I would request that copes of , ose documents be forwarded in advance to this office a • to th= offices of the City Planner and Engineer and thereaft= a c .sing time shall be scheduled. Your- ve , truly, A ir74 Ma•k J. Vierling MJV /smp Enclosure cc: Ms. LaVonne Wilson . CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA DEVELOPER'S AGREEMENT THIS AGREEMENT, made and entered into this day of , 1994, by and between the City of Oak Park Heights, a municipal corporation under the laws of the State of Minnesota (the "City "), and Swager Bros. Inc. (the "Developer "). WITNESSETH; That: WHEREAS, the Developer has made application to the City Council for approval of a plat and Planned Unit Development of land within the corporate limits of the City described as follows: See Exhibit "A" (the "P.U.D. "); and WHEREAS, the City Council has on , granted preliminary approval to the P.U.D., 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 grading, drainage and site plan as is specifically approved by the City. A grading plan with maximum two (2) foot contours, house pad 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 and shall not be implemented on site until written approval is issued. 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 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 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. 5. All retaining walls must receive separate written approval from the offices of the Consulting City Engineers before construction begins. 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. 2 E. The Developer shall install all street name signs at all intersections and provide other traffic control signs within the subdivision 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 sign shall be constructed of durable materials to be approved by the Building Official. F. The Developer shall remove all dead and diseased trees before building permits will be issued. G. The Developer shall be responsible for street maintenance, including curbs, boulevards, sod and street sweeping. All streets shall be maintained free of debris and soil. 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 residences 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 and ice from all gravel streets. The repair of any damage done to the streets or public utilities shall be the financial responsibility of the Developer and /or Homeowner's Association. All streets located within the development shall be private drives to be maintained by the developer and /or the Homeowner's Association. Notwithstanding the same, the Police Department of the City of Oak Park Heights, Public Works Department, Municipal refuse hauler, Fire Department and other municipal personnel shall have a right of access over the private drives for purposes of providing services to the effected property owners at reasonable times. H. The Developer shall furnish street lights in accordance with the City's residential street lighting plan. I. Retaining Walls. No retaining wall shall be constructed by the Developer or its agents or employees within East Oaks P.U.D. unless or until the engineering design has been approved by the offices of the City Engineer and security in the manner comparable to all plan aid development improvements is provided pursuant to terms and provisions hereof. J. There shall be no construction of two story buildings within this development with the exception of lots 9, 10, 11 and 12. All height requirements existing within 3 • • the ordinances of the City of Oak Park Heights, shall be maintained by the developer. K. Signage. There shall be no signage placed on site unless the same has been submitted to and approved by the office of the building inspector with the consent and approval of the city planner. L. Landscaping Plan. Landscaping plan shall annexed hereto as Exhibit M. and shall be subject to the final approval of the City Forester with the consent of the City Planner. General Requirements: 1. Residential street lighting shall be owned, installed, operated and maintained by the electric utility company (NSP). Developer 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. 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. b. All these costs shall be guaranteed by part of the Plan A security. M. The Developer shall, in all new subdivisions, dedicate a reasonable portion of each 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. In lieu of land dedication, Developer shall pay the park dedication fee now prescribed by ordinance and /or resolution. Pursuant to the provisions hereof as and for park dedication fees, the Developer shall pay to the City of Oak Park Heights the sum of $ 10,400.00 upon the execution of this Agreement. N. The Developer shall dedicate and survey all storm water holding ponds as required by the City. The Developer shall be responsible for storm sewer cleaning and holding 4 • • pond dredging, as required, by the City prior to completion of the development. O. The Developer shall be required to depict possible future bus routes and surrounding land uses including parks and all scheduled improvements on all display materials and brochures given to prospective buyers. P. 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. Q. Conection Charges. All connection charges and fees shall be paid by Developer on a per lot basis at the time that building permits are obtained for each dwelling or principal structure to be constructed. 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. As it affects Development of East Oaks P.U.D., the engineer has calculated the total sanitary, water works and storm sewer connection charges to be in the amount of $ 2,125.00 per lot. 2. DESCRIPTION OF PLAN A IMPROVEMENTS EAST OAKS P.U.D. ESTIMATED COST 1. Boulevard and swale sod $ 5,600.00 2. Boulevard trees $ 2,600.00 3. Street signs $ 250.00 4. Street lights $ 1,440.00 5. Utility protection and repair $ 4,300.00 6. Street protection and repair $ 5,370.00 7. Site Seedings Restoration $ 8,550.00 8. Landscape Treatment at Wall $ 1,500.00 9. Scour Treatment at Walls $ 2,400.00 10. Erosion Control Facilities $ 4,500.00 11. Sanitary sewer $ 26,800.00 5 4 12. Water main $ 21,360.00 13. House services $ 21,110.00 14. Storm sewer $ 18,030.00 15. Base preparation $ 21,340.00 16. Curb and gutter $ 9,370.00 17. Surfacing $ 23,020.00 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: $ 177,540.00 ESTIMATED ENGINEERING, LEGAL AND ADMINISTRATIVE (25 %): $ 44,385.00 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: $ 221,925.00 SECURITY REQUIREMENT (25 %) $ 55,231.00 TOTAL PLAN A ESCROW: $ 277,156.00 3. CONSTRUCTION OP 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. 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 requested by the City Engineer and /or the City Attorney. 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. The street shall be maintained by the developer or its designee. 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 6 • • 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 issued to guarantee and 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 for the purpose of guaranteeing 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 at 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. F. Developer shall be solely responsible for the repair upkeep and maintenance of all Plan A Improvements. The Developer shall retain ownership of all plan A improvements and none shall become the property or the responsibility of the City of Oak Park Heights. The City shall have no duty or obligation to maintain, repair or replace any improvements, streets or water systems, sanitary sewer systems or drainage systems within The Development of East Oaks P.U.D. G. The City of Oak Park Heights shall have full right of access to the area encompassed within East Oaks P.U.D. for police, fire protection services, city public works department and building inspection department. Further, 7 • • the contract refuse and recycling haulers serving the City of Oak Park Heights shall also have full right of access to the area encompassed within the Development. 4. GENERAL: 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 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. C. .Incorporation of Reference. All plans, special provisions, proposals, specifications and contracts for the improvements furnished and let pursuant to this Agreement shall be and hereby are made a part of this Agreement by reference as fully as if set out herein in full. D. The City of Oak Park Heights shall file the Developer's Agreement of record in the office of the County Recorder. The Devloper or its predicessor's in title shall not amend the declarations of covenants, restrictions and easements for East Oaks Homeowner's Association or the By -laws of the East Oaks Homeowner's Association in any manner that would contradict or conflict with any term or provision of this Development Agreement without the express written consent of the City of Oak Park Heights and any such attempted modification or amendment without the consent of the City of Oak Park Heights shall be void. 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 authority in determining the fairness and reasonableness of all such costs incurred; 8 • • and the decision by the City Council for the City of Oak Park Heights on any such dispute shall be final and binding. F. Establishment of Construction Schedules. The City Engineer shall establish construction schedules for Plan A and Plan B improvements and shall consult with Developer prior to establishing same. G. The Developer shall provide to the office of the City Attorneys' for the City of Oak Park Heights on or before the date of execution of this Development Agreement evidence of ownership of the real property to be platted as East Oaks P.U.D. by way of title opinion from a licensed attorney or title binder from a reputable and licensed title company. Such evidence shall display and identify all persons owning any interest in and to the property to be platted as East Oaks P.U.D. together with all lien holders or other encumbering interests. All such interests shall be displayed and shall be required to execute consents to this Development Agreement in the manner and form prescribed by the office of the City Attorney. H. That the Developer shall secure at its own cost permission from the Minnesota Department of Transportation an entrance or access permit so as to allow private /public drive depicted as Outlot C on the Development State P.U.D. Plan for East Oaks dated September 21, 1993, to be lawfully connected to 60th Street North which serves as the Frontage Road to State Trunk Highway 36 and is a part of the Trunk Highway system. The obtaining of an unconditional and approved entrance/ access permit from the Minnesota Department of Transportation as it affects the access drive depicted within this development and its connection to the Frontage Road system is a prerequisite to final plan approval. (See Exhibit I) I. That the Developer shall provide and convey to the City of Oak Park Heights without cost a redescribed easement for water, sewer and storm sewer utilities over and across existing locations of sanitary sewer, water main and storm sewer on easement forms provided by the Office of the City Attorney. J. The Developer shall provide and have approved by the City prior to final platting a detail plan for snow removal. Such plan for snow removal shall be incorporated by reference into the Homeowners Association Declaration of Covenants. (See Exhibit Q) K. Should any signage be desired by the Developer or the Homeowners Association affecting this development, it must be submitted by detail sign plan to the City of Oak 9 . • Park Heights and approved prior to being implemented on the site. L. That except as is specifically granted and identified within this document or other specific actions of the City of Oak Park Heights, no variances from the Ordinance requirements of the City of Oak Park Heights have been granted affecting this subdivision and planned unit development. M. Developer shall provide landscape treatment for all slopes that exceed 3 to 1. All such landscape treatment shall be subject to the approval of the City Forester and the City Engineer. N. Developer shall provide chainling fencing to a height of four feet at the top of all retaining walls. O. On any and all slopes exceeding 3 to 1 grade, all such slopes must be controlled with low or no maintenance plantings to be approved by the City Forester and /or the City Engineer. P. All plans, special provisions, proposals, specifications, and contracts for the improvements furnished and let pursuant to this Agreement shall be and hereby are made a part of this Agreement by reference as fully as if set out herein in full, including Bonestroo, Rosene, Anderlik & Associates File No. 55 out this project. The following specifications, contracts, drawings and reports shall be annexed hereto as Exhibits and incorporated herein by reference as if fully set forth herein: Exhibit "B" Development and Stage PUD Plan for East Oaks prepared by Steven's Engineering, Inc., dated September 9, 1993, as amended on September 21, 1993. Exhibit "C" Northwest Associates Consultants Planning Report - Revised October 21, 1993. Exhibit "D" October 25, 1993, letter from Bonestroo, Rosene, Anderilk & Associates. Exhibit "E" September 27, 1993, letter directed to Mr. Barry W. McKee by the offices of the City Attorney, Eckberg, Lammers, Briggs, Wolff & Vierling. Exhibit "F" Declaration of Covenants, Restrictions and Eastments for East Oaks Homeowners Association. 10 Exhibit "G" ByLaws of East Oaks Homeowners Association. Exhibit "H" December 13, 1993, letter Bonestroo, Rosene, Anderlik & Associates. Exhibit "I" Letter from Minnesota Department of Transportation dated December _ , 1993 to the City of Oak Park Heights. Exhibit "J" March 9, 1994 letter from Northwest Associated Consultants, Inc. to Jim DeBenedet Exhibit "K" January 7, 1994 letter from Bonestroo, Rosene, Anderlik & Associates Exhibit "L" Final P.U.D. East Oaks Exhibit "M" Landscaping Plan /signage Plan/ Planner's Memo of May 5, 1994 Exhibit "N" June 23, 1994 letter from Bonestroo, Rosene, Anderlik & Associates Exhibit "0" July 18, 1994 letter from Bonestroo, Rosene, Anderlik & Associates Exhibit "P" Grading Drainage and Erosion plan dated July 7, 1994 submitted by Steven's Engineering Exhibit "Q" Snow Removal Plan IN WITNESS WHEREOF, the City and Developer have caused this Agreement to be duly executed on the day and year first above written. CITY OF OAR PARR HEIGHTS In the presence of: BY: Its: BY: Its: 11 . • DEVELOPER In the presence of: SWAGER BROS. INC. BY: Its: BY: Its: STATE OF MINNESOTA ) )SS: COUNTY OF WASHINGTON) On this day of , 199_, before me, a Notary Public within and for said County personally appeared and , to me personally known, being each by me duly sworn did say that they are respectively the and the 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 and acknowledged said instrument to be the free act and deed of said municipal corporation. Notary Public (Notarial Seal) STATE OF MINNESOTA ) )SS: COUNTY OF WASHINGTON) On this day of , 1993, before me, a Notary Public within and for said County personally appeared and , to me personally known, being each by me duly sworn did say that they are respectively the and the of Swager Bros. Inc., the corporation named in the foregoing 12 .• • 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 corporation by authority of its Board of Directors and said and acknowledged said instrument to be the free act and deed of said corporation. Notary Public (Notarial Seal) THIS INSTRUMENT WAS DRAFTED BY: MARK J. VIERLING ECKBERG, LAMMERS, BRIGGS, WOLFF & VIERLING 1835 NORTHWESTERN AVENUE STILLWATER MN 55082 (612) 439 -2878 Revised 07/27/94 13