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HomeMy WebLinkAbout1993-12-13 Preliminary Developer's Agreement . . CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA DEVELOPER'S AGREEMENT THIS AGREEMENT, made and entered into this day of , 1993, 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 PRELIMINARY DRAFT Subject to review and discussion k 1 ) I 1 • 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 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. 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 be required to provide landscaping and screening as determined by the City and as required by the ordinances of the City. In all instances one boulevard tree should be planted per dwelling unit. 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 approved by the City prior to commencement of final grading and landscaping construction. F. The Developer shall install all street name signs at all intersections and provide other traffic control signs within the subdivision determines 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. G. The Developer shall remove all dead and 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 and streets formerly accepted by the City Council. 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 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. I. The Developer shall furnish street lights in accordance with the City's residential street lighting plan. General Requirements: 1. Residential 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: 3 • • 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, 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 $ upon the execution of this Agreement. K. 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 pond dredging, as required, by the City prior to completion of the development. L. 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. M. 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. 4 . • 2. DESCRIPTION OF IMPROVEMENT EAST OAKS P.U.D. ESTIMATED COST 1. Boulevard and swale sod $ 4,560.00 2. Boulevard trees $ 2,600.00 3. Street signs $ 250.00 4. Street lights $ 1,440.00 5. Utility protection and repair $ 4,800.00 6. Street protection and repair $ 4,870.00 7. Site Seedings Restoration $ 8,000.00 8. Erosion Control Facilities $ 4,500.00 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: $31,020.00 ESTIMATED ENGINEERING, LEGAL AND ADMINISTRATIVE (25 %): $ 7,780.00 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: $38,800.00 SECURITY REQUIREMENT (25 %) $ 9,700.00 TOTAL PLAN A ESCROW: $48,500.00 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. 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. Easements for the street serving the development shall be conveyed to the City on 5 • • demand by the City. Prior to conveyance to the City, 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 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. 1. PLAN B IMPROVEMENTS. The following improvements will be installed by the City at the Developer's expense according to the following terms and conditions: 6 • • Description of Improvement Estimated Cost A. Sanitary sewer $ 26,800.00 B. Water main $ 21,360.00 C. House services $ 21,110.00 D. Storm sewer $ 28,030.00 E. Base preparation $ 19,400.00 F. Curb and gutter $ 8,370.00 G. Surfacing $ 20,930.00 TOTAL ESTIMATED COST OF PLAN B IMPROVEMENTS $145,000.00 ESTIMATED LEGAL, ENGINEERING AND ADMINISTRATIVE FEE $ 36,250.00 TOTAL ESTIMATED COST OF PLAN B IMPROVEMENTS $181,250.00 SECURITY REQUIREMENT (25 %) $ 45,350.00 TOTAL PLAN B ESCROW: $226,600.00 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 $226,600.00. 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 $226,600.00. The City shall have the right to apply 7 . • 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 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 n 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. 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 all 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. 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 prior to 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. 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 B improvements. All such contracts shall also conform to 8 . • the ordinances and specifications of the City in the construction of all Plan B improvements. F. Reduction of Cash Deposit /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 B 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. 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. I. Connection 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 $ per lot. 3. 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. 9 • • 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. Providing that the Developer is not in default under the terms of the Development Agreement, the City shall provide appropriate releases to the 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 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 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. Merger. The provisions of this Development Agreement although related to are separate and distinct from those provided within the Development Agreement of River Hills (formerly Cleveland Terrace) already entered into between the City of Oak Park Heights and the Developer. This Agreement does not merge or otherwise extinguish the Developer's obligations to the City of Oak Park Heights provided for within that Development Agreement. H. 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 10 • • • 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. I. 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 Develop 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. J. 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. K. 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. L. Should any signage be desired by the Developer or the Homeowners Association affecting this development must be submitted by detail sign plan to the City of Oak Park Heights and approved prior to being implemented on the site. M. 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. N. 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. The following specifications, contracts, drawings and reports shall be annexed hereto 11 r • • 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. 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. IN WITNESS WHEREOF, the City and Developer have caused this Agreement to be duly executed on the day and year first above written. The instrument was drafted by the City Attorney. CITY OF OAK PARK HEIGHTS In the presence of: BY: Its: BY: Its: 12 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 instrument; and that the seal affixed to said instrument is the 13 110 410 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 12/21/93 14