HomeMy WebLinkAbout[deleted] Parkway Business CenterCITI° QF tiT. J[xSf;VH
MEETING DATE:
AGENDA ITEM:
SUBMITTED BY:
October 16, 2008
Council Agenda Item
Central Minnesota Land Development - St. Jon's, LLC
-Development Agreement/Site Plan
Administration
BOARD/COMMISSION/COMMITTEE RECOMMENDATION: None
PREVIOUS COUNCIL ACTION: None
BACKGROUND INFORMATION: Representatives from Central Minnesota Land Development -
St. Jon's, LLC presented a draft site plan for the Parkway Business Center at the September 18, 2008 City
Council meeting. Council had recommendations for changes to the site plan. The developer
accommodated those changes in the attached site plan.
Attached also is the draft development agreement for Parkway Business Center.
BUDGET/FISCAL IMPACT:
ATTACHMENTS:
Draft Development Agreement/Updated Site Plan
REQUESTED COUNCIL ACTION: Authorize the Mayor and Administrator to execute the
Development Agreement between the City of St. Joseph and Central Minnesota Land Development - St.
Jon's, LLC and approve the final site plan for the Parkway Business Center.
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DRAFT 10/07/08
CITY OF ST. JOSEPH
DEVELOPER AGREEMENT
(City Constructed Improvements)
THIS AGREEMENT, made and entered into this _ day of , 2008, by and BETWEEN
Central Minnesota Land Development - St. Jon's, LLC, hereinafter called the "Developer", and the City
of St. Joseph, Minnesota, a municipal corporation, hereinafter called the "City".
WITNESSETH:
WHEREAS, the Developer is the Owner of certain Real Property known as Parkway Business Center,
which is legally described on Exhibit A, (hereinafter called the "Property" or "Development" or
"Development Property") attached hereto and made a part hereof; and
WHEREAS, the City's Code of Ordinance requires the Developer to provide for the construction of
certain public improvements, and for the financing of said improvements;
NOW, THEREFORE, in consideration of the mutual covenants expressed herein, IT IS HEREBY
AGREED AS FOLLOWS:
1.0 REQUEST FOR AND CONDITIONS OF PLAT APPROVAL
1.1 Request for Plat Approval. The Developer has asked the City to grant final approval of a
plat for acommercial/industrial subdivision called Parkway Business Center. The legal description for
the land proposed for development is described on Exhibit A, attached hereto and made a part hereof.
1.2 Conditions of lp at ap rp oval. The City hereby grants final approval of the plat subject to
the conditions that the Developer enters into this Agreement, furnish the security in a form acceptable as
required by the various provisions of this Agreement, and record the plat with the County Recorder within
30 days after the City Council approves the plat.
1.3 Financin og f Improvements. The Developer for each final plat of the Property select to
install the municipal improvements under Section 3 or 4 of this Agreement by providing written notice to
the Council within 30 days of final plat approval for that phase. The City Council shall have the sole
discretion to authorize the use of public financing for the improvements in Section 3 or 4 of this
agreement. If the improvements are installed by the developer, the developer shall follow the guidelines
as established in appendix A of this agreement.
2.0 RIGHT TO PROCEED
The Developer may not grade or otherwise disturb the earth, remove trees, construct sewer lines,
water lines, streets, utilities, public or private improvements, or any buildings, until all the following
conditions have been satisfied: (1) this Agreement has been fully executed by both parties and filed with
the City Administrator; (2) the necessary security has been received by the City; (3) the plat and this
Agreement have been recorded with the Stearns County Recorder's office; (4) the City has issued a letter
that all conditions have been satisfied and that the Developer may proceed.
3.0 DEVELOPER CONSTRUCTED IMPROVEMENTS
3.1 Improvements. The Developer agrees to construct those improvements itemized below,
(hereinafter known as the "Improvements"):
Check all that apply:
X Site Grading X Bituminous Streets
X Water Main X Street Signs
X Storm Sewer X Regulatory and Warning Signs
X Holding Ponds X Turning and Bypass Lanes
X Concrete Curb and On-site Wetland Mitigation
Gutter
X Sanitary Sewer X Erosion Control
Sidewalks X Lighting
The Improvements itemized above shall include all necessary appurtenant items of work
as determined by the City.
3.2 Completion Deadlines. The Developer agrees to proceed with said the Improvements
entirely at its expense, and to complete said improvements by ,except
for final wear course which shall be completed by The construction
documents shall establish completion dates at or before the dates shown above.
3.3 Engineering Services. The Developer will retain an engineer satisfactory to the City to
prepare complete construction Plans and Specifications for The Improvements. The
Developer's engineer shall:
(a) Prepare a Preliminary Estimate and Layout of Utilities and arrange for soil
borings and/or such other subsurface investigations as the City may require.
(b) Prepare complete construction Plans and Specifications. As Plans and
Specifications are being prepared, copies shall be available for review and
2
comment by the City Engineer. The City shall approve final content of the Plans
and Specifications.
(c) Secure all necessary permits including those required by the Minnesota Pollution
Control Agency, the State Health Department, the Department of Natural
Resources, or any other regulatory agency that has jurisdiction.
(d) Prepare the Environmental Assessment Worksheet (EAW), if necessary, and any
other related environmental documents, reports, or studies as may reasonably be
required by the City.
(e) Provide all necessary construction staking and related survey work.
(f) Provide construction administrative services on behalf of the Developer.
(g) Prepare record drawings and provide one large-scale copy (22 inch by 34 inch),
three 11 inch by 17 inch copies and one electronic copy in Autocad or
Microstation format. These copies and electronic media shall become property of
the City.
(h) Prepare and submit such other final documentation as the City may require.
The City Engineer shall:
(a) Provide such City project standards, including special details, insurance
requirements and specifications, as the City may require.
(b) Review Plans and Specifications.
(c) Provide a City Representative for resident construction observation throughout
the construction period.
(d) Conduct a final inspection and review final construction documentation.
(e) Recommend Acceptance of Improvements to the City.
3.5 Cost Escrow. The Developer shall bear the cost of the above noted City Engineering
Services, consultant services, City Attorney services, and City Administrator costs and
shall, upon execution of this Agreement, place in escrow with the City cash or
irrevocable letter of credit in the amount of $ which shall be applied to the
payment of the cost of said services. Should the above amount exceed the cost to the
City, the City shall return to the Developer all unused funds, including accumulated
interest. Should the expense to the City exceed the above amount, the City will notify the
Developer of additional amounts to be paid into the escrow account. The Developer shall
fund the escrow account in the amount requested by the City within 15 days after notice.
No building permits shall be issued until the escrow account is funded as requested by the
City.
3
The Developer shall pay a reasonable fee for in-house administration of the development
by the City staff and the City's consulting professionals to include but not be limited to
engineers, planners and attorneys. City administration will include monitoring of
construction observation, consultation with Developer and his engineer on the status of or
problems regarding the project, coordination for final inspection and acceptance, project
monitoring during the warranty period, and processing of requests of reduction in
security. The Developer shall pay for construction monitoring performed by the City's
consulting professionals at their customary hourly rates. Construction monitoring shall
include part- or full-time inspection of proposed public utilities and street construction by
the City Engineer.
3.6 Contractor Retention. Before approval of the Final Plat, the Developer shall contract
with a contractor for the construction of the Improvements (hereinafter the "Contractor").
The Contractor selected by the Developer to construct and install any Improvements shall
be qualified and competent to perform the work and have adequate finances to perform.
The City reserves the right to require evidence of competency and adequate financial
status of any such Contractor, and prohibit a Contractor who fails to provide such
evidence from undertaking work on the improvements. The construction, installment,
materials and equipment shall be in accordance with approved Plans and Specifications.
3.7 City as Third Party Beneficiary. The City shall not have any direct contractual
relationship with the Contractor, but shall be considered a third party beneficiary to the
contract entered between the Developer and the Contractor. The City shall not be liable
to the Contractor for the Developer's breach of a duty to the Contractor.
3.8 Easements. The Developer shall make available to the City, at no cost to the City, all
permanent and temporary easements necessary for installation and maintenance of The
Improvements.
3.9 Insurance. The Developer shall provide evidence of Comprehensive General Liability
and Broad Form Property Damage Insurance including contractual coverage in the
amount of at least $1,000,000 per occurrence and $1,000,000 aggregate. The Developer's
insurance certificate shall be in a form approved by the City, and shall be delivered to the
City at least three days prior to the commencement of any work on the Improvements.
The City and the City Engineer shall be named as an additional insured on such policy by
endorsement. Such insurance shall remain in full force and effect through the end of the
warranty period described in Section 3.12.
The Developer shall cause each person with whom Developer contracts for the
construction and installation of any Improvements to provide evidence of insurance. Said
coverage shall include Contractor's General Liability, Owner/Engineer Protective
Liability, Automobile Liability, Contractual Liability, and Worker's Compensation
coverage.
The Developer shall provide builder's risk insurance if there are any structures to be
constructed as part of the development (lift stations, pump houses, etc.). All insurance
coverage shall be provided in accordance with City specifications.
4
3.10 Performance Security. Prior to the actual construction of the Improvements pledged to be
constructed by the Developer, then in that event, the Developer shall post with the City a
bond, irrevocable letter of credit or dedicated escrow account (the "Security") in the
estimated amount of 1.25 times the City Engineer's Estimate of the likely costs of such
improvements, conditioned upon the faithful construction of the improvements according
to the Plans and Specifications, and final approval of the City Engineer, and the terms of
this Development Agreement. As the improvements are partially completed, the
Developer may request the City to release a portion of the Security representing the cost
of the completed improvements as determined by the City Engineer, but at all times there
shall be Security in an amount of at least 125% of the estimated cost of the unfinished
improvements. If the construction contracts are under the control of one Prime
Contractor ,the Prime Contractor may provide the performance security required by this
section.
3.11 Labor and Materialman's Bond. Upon execution of this Agreement, the Developer shall
also provide the City with a labor and materialman's bond, guaranteeing the payment of
all workmen performing labor or services, and all supplies or materialmen providing
materials for the Improvements. This bond shall not be released until the Developer has
provided the City Engineer with proof of payment of all laborers and materialmen in the
form of release, signed receipts, or lien waivers. If the Developer contracts with a single
Prime Contractor, and all construction contracts are under control of the Prime
Contractor, the Prime Contractor may provide the laborer and materialmen bond required
by this section as long as the Prime Contractor agrees to waive any lien rights for the
labor and/or material provided by the Prime Contractor.
3.12 Warranty Bond. 'The Developer shall fully and faithfully comply with all the terms of
any and all Contracts entered into by the Developer for the installation and construction
of all The Improvements and hereby warrants and guarantees the workmanship and
materials for a period of two years following the City's final acceptance of the
Improvements. In addition to the Security required by Section 3.10 herein, the Developer
hereby warrants and shall post a warranty bond, warranting the condition of the materials
and workmanship of the improvements for a period of two years following the City's
final acceptance of the Improvements. If any claims are made in writing within the
warranty period, the bond shall not be released until such claims are resolved.
3.13 Completion Date and Inspection. The work the Developer is to perform under this
Agreement must be done and performed by Developer in a good and workmanlike
manner and completed by the date set in paragraph 3.2 of this Agreement. The storm
sewer, water and sewer mains, roadways, and all other improvements called for in the
Plans and Specifications will be subject to the inspection and approval of the City and the
City Engineer, and in case any material or labor supplied shall be rejected by the City or
the City Engineer, as defective or unsuitable, then such rejected material or labor shall be
removed and replaced with approved material or labor, to the satisfaction and approval of
the City, entirely at the cost and expense of the Developer.
5
3.14 Dedication of Utilities and Roadways. Developer will dedicate to the City, after their
completion, all water and sewer mains, storm sewer mains, storm sewer, roadways and
other structures located in the right-of--ways on the Development Property shown in the
Plans and Specifications. Developer will provide to the City any and all necessary
easements and/or dedications or deeding to ensure that the City has the ability to
maintain, repair, replace or modify the sewer and water mains, storm sewers, and holding
and sedimentation ponds located on the Development Property.
4.0
FUTURE IMPROVEMENTS
4.1 Future Improvements. The Developer and City hereby acknowledge that certain
improvements, not included in the Improvements outlined herein, will have to be
constructed at some future date to complete service to the Development. These
improvements, known as "future improvements" include the following:
Check all that apply:
X Site Grading X Bituminous Streets
X Water Main X Street Signs
X Storm Sewer X Regulatory and Warning Signs
Holding Ponds Turning and Bypass Lanes
X Concrete Curb and On-site Wetland Mitigation
_ Gutter
X Sanitary Sewer X Erosion Control
Sidewalks Bituminous Trail & Lighting
4.2 Developer's Consent to Petition. If a petition to construct any or all of the above future
improvements in accordance with procedures outlined in Minnesota Statutes, Chapter
429, is received by the City from affected property owners, the Developer shall be
considered an automatic signer of said petition for all affected properties within the
Development remaining under his ownership or otherwise under his control, the
Developer being deemed to have waived his right of notice of hearing upon the necessity
or feasibility of the improvement, understanding only that they have not waived any
rights or notice of hearing for the purpose of an actual assessment or apportionment of
said assessment cost against property still owned by Developer.
4.3 Developer's Consent to Council Action. If the City, not having received a petition to
construct any or all of the above future improvements, determines that construction of
certain future improvements is necessary and in the public interest, the Developer shall be
considered an automatic signer of a petition for said improvement or improvements for
purposes of initiating action under Minnesota Statutes, Chapter 429; said automatic
signature shall apply to all affected properties within the Development remaining under
the Developer's ownership or otherwise under his control, the Developer being deemed to
have waived his right of notice of hearing upon the necessity or feasibility of the
improvement, understanding only that they have not waived any rights or notice of
6
hearing for the purpose of an actual assessment or apportionment of said assessment cost
against property still owned by Developer.
5.0 PHASED DEVELOPMENT
If the development and improvements which are the subject of this Agreement are a portion of a multi-
phased preliminary plat, the City may refuse to approve final plats of subsequent phases if the Developer
has breached this Agreement and the breach has not been remedied. Development of subsequent phases
may not proceed until Development Agreements for such phases are approved by the City.
6.0 CHANGES IN OFFICIAL LAND USE CONTROLS
6.1 For two (2) years from the date of this Agreement, no amendments to the City's
Comprehensive Plan or official land use controls shall affect the use, development
density, lot size, lot layout, or dedications of the development which is a part of this
Agreement unless required by State for Federal law or agreed to in writing by the City
and the Developer. Thereafter, notwithstanding anything in this Agreement to the
contrary, to the full extent permitted by State and Federal law, the City may require
compliance with any amendments to the City's Comprehensive Plan, official controls
and platting or dedication requirements enacted after the date of this Agreement.
6.2 The Developer intends on phasing the final platting of the Property in accordance with
the Preliminary Plan approved October 2, 2008, and the City agrees that the Developer
shall have five years from the date of this Agreement to complete the platting of the
Property in accordance with said Preliminary Plan.
7.0 GENERAL TERMS AND CONDITIONS
7.1 Attorney Fees. The Developer agrees to pay the City reasonable attorney's fees, to be
fixed by the Court, in the event that suit or action is brought to enforce the terms of this
Agreement.
7.2 Proof of Title. The Developer hereby warrants and represents to the City, as inducement
to the City's entering into this Agreement, that Developer's interest in the Development is
fee owner. Prior to execution of this Agreement, the Developer shall provide the City
with a title opinion prepared by a licensed attorney and directed to the City stating the
condition of title of the property, or other proof of title acceptable to the City.
7.3 Binding Effect on Parties and Successors. The terms and provisions of this Agreement
shall be binding upon and accrue 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 Development and shall be deemed covenants running with the land.
Reference herein to Developer, if there be more than one, shall mean each and all of
them. This 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
Development and all recording fees shall be paid by the Developer.
7
7.4 Notice. Any notices permitted or required to be given or made pursuant to this
Agreement shall be delivered personally or mailed by United States mail to the addresses
set forth in this paragraph, by certified or registered mail. Such notices, demand or
payment shall be deemed timely given or made when delivered personally or deposited in
the United States mail in accordance with the above. Addresses of the parties hereto are
as follows:
If to the City at: City Clerk/Administrator
City of St. Joseph, P.O. Box 667,
St. Joseph, MN 56374
If to the Developer at: Central Minnesota Land Development - St. Jon's LLC
Todd Rodenwald
7.5 Acceptance and Ownership of Improvements. The City will accept said improvements or
portions thereof, upon certification by the City Engineer that, to the best of his knowledge
and belief, the improvements have been completed in conformance with the terms of this
Development Agreement and all documents incorporated herein by reference. Upon
completion of the work and construction required by this Agreement and final approval
and acceptance by the City, the improvements lying within public easements in the
development shall become City property without further notice or action.
7.6 Incorporation of Documents by Reference. All general and special conditions, 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 if fully set out herein in full.
7.7 Liability Insurance. The Developer shall provide evidence of Comprehensive General
Liability and Broad Form Property Damage Insurance including contractual coverage in
the amount not less than $1,000,000 per occurrence and $1,000,000 aggregate and excess
or umbrella liability coverage of $1,000,000 per occurrence and $2,000,000 aggregate.
The City and City Engineer shall be named as an additional insured on such policy by
endorsement. The Developer's insurance certificate shall be in a form approved by the
City, and shall accompany this Agreement. Such insurance shall remain in full force and
effect during the construction of the Improvements and for two years after approval and
acceptance of the Improvements by the City. The policy shall provide a waiver of
subrogation against the City for any insured claims.
7.8 Indemnification. The City and its officers, agents and employees shall not be personally
liable or responsible in any manner to the Developer, contractor or subcontractors,
materialmen, laborers, or to any other person or persons whomsoever, for any claims,
demands, damages, actions, or causes any action of any kind or character whatsoever
arising out of or by reason of the execution of this Agreement, or the design,
performance, and completion of the work and the improvements to be provided by
Developer pursuant to this Agreement. The Developer shall hold the City and City
Engineer harmless from claims by third parties, including but not limited to other
8
property owners, contractors, subcontractors and materialmen, for damages sustained or
costs incurred resulting from plat approval and the development of the Property. The
Developer shall indemnify the City for all costs, damages or expenses, including
engineering and attorney's fees, which the City may pay or incur in consequence of such
claims by third parties.
7.9 License to Enter Land. The Developer hereby grants the City, its agents, employees,
officers and contractors a license to enter the Property to perform all work and/or
inspections deemed appropriate by the City during the development of the Property.
7.10 Streets.
(a) During any period of spring weight restrictions, when the streets within the
Development have the first lift of pavement, but prior to final acceptance of the
improvements by the City, the City shall post signage at each entrance to the
Property as notice restricting access to vehicles with an axle weight of seven tons
or less.
(b) The Developer shall promptly clean any soil, earth or debris from streets in or
near the Development resulting from construction work by the Developer or its
agents or assigns as often as necessary and as directed by the City for public
safety and convenience. In the event the Developer fails to clean the streets
within 48 hours of the direction of the City, the City may undertake the work and
seek reimbursement from the security provided by the Developer as set forth in
paragraph 7.19 of this Agreement, or alternatively, assess the cost against
property owned by the Developer within the City.
(c) Any damage to existing City streets due to construction activities within the
development shall be repaired to the satisfaction of the City at the Developer's
expense.
7.11 Erosion Control. The Developer shall comply with all requirements of the "General
Storm Water Permit for Construction Activity" issued by the Minnesota Pollution
Control Agency for construction activities and with the tasks on Exhibit "B" designated
as the Developer's responsibility. In addition, the City may impose additional erosion
control requirements if in the opinion of the City Engineer such requirements are
necessary to retain soil and prevent siltation of streams, ponds, lakes, or other adjacent
properties, or of City utility systems. The Developer shall comply with the erosion
control plans and with any such additional instruction it receives from the City. All areas
disturbed by the excavation and backfilling operations shall be reseeded forthwith after
the completion of the work in that area. Seed shall include rye grass or other fast growing
seed to provide a temporary ground cover as rapidly as possible. All seeded areas shall
be mulched and disc-anchored as necessary for seed retention. The parties recognize that
time is of the essence in controlling erosion. The Developer shall notify the City at least
one week prior to the initial transfer of NPDES permit.
7.12 Site Grading.
9
(a) Site grading shall meet all of the requirements set forth in the City's Development
Manual, and in the General Storm Water Permit for Construction.
(b) When the site grading has been completed:
The City shall verify by field survey that the site grading has been completed in
accordance with the approved grading plan submitted with the preliminary plat
documents, as modified by the construction plans.
2. Elevations shall be taken on all lot corners, all buildings pads, and on drainage
breaks, ponding sites, ditches, and swayles. Arrows shall show how the lot is to
drain.
3. The site grading plan, as modified by the construction plans and verified in the
field, shall become the approved Development plan.
4. The City shall provide the Developer with a copy of the approved Development
Plan. The Developer shall make the Development Plan available to the
subsequent owners of the lots purchased from the Developer, and to their builders.
Upon completion of the final lot grading by the lot owner, elevations shall closely
match those set forth on the Development Plan.
7.13 Certificate of Compliance. This Agreement shall remain in effect until such time as
Developer shall have fully performed all of its duties and obligations under this
Agreement. Upon the written request of the Developer and upon the adoption of a
resolution by the City Council finding that the Developer has fully complied with all the
terms of this Agreement and finding that the Developer has completed performance of all
Developer's duties mandated by this Agreement, the City shall issue to the Developer on
behalf of the City an appropriate certificate of compliance. The Acceptance of the
Improvements contracted in accordance herewith by the City does not constitute a
certificate of compliance and does not release the Developer from ongoing duties or
responsibilities arising under this contract. The issuance of a Certificate of Compliance
does not constitute a waiver of the City's rights herein.
7.14 Public Land Contribution. The subdivider shall contribute $ to the City Park
Fund in lieu of a dedication of land for parks, with payment to be made upon execution of
this Agreement.
7.15 Time of Performance. The City shall complete the Improvements, except for the final
layer of bituminous surfacing prior to the issuance of building permits by the City. The
wear course on streets shall be installed between August 15 and October 15 the first
summer after the base layer of asphalt has been in place one freeze-thaw cycle. The
Developer may, however, request an extension of time from the City. If any extension is
granted, it shall be conditioned upon updating the security posted by the Developer to
reflect cost increases and the extended completion date. Final wear course placement
outside of this timeframe must have the written approval of the City Engineer.
10
7.16 Ponds.
(a) Dedication of Pond Areas. The Developer will dedicate to the City the property
shown for storm water or sedimentation holding pond purposes on the
Preliminary Plat and/or as required by the Plans and Specifications. Said
dedication shall include an access drive to the pond site. Developer will dedicate
the drainage and stone sewer utility easements shown on the Preliminary Plat
and/or as required by the Plans and Specifications. The Developer agrees that all
holding and sedimentation ponds and drainage easements as shown on the
Preliminary Plat or as required by the Plans and Specifications are required for the
development of the Development Property.
(b) Cleaning of Ponds. At such time as the City Director of Public Works detennines
that construction on the Development Property has been sufficiently completed so
as not to cause significant erosion which will contaminate the holding ponds
servicing the Development Property, Developer will clean/dredge all holding
ponds and storm water pipes on the Property. In the event the ponds require
cleaning/dredging prior to the completion of all such construction, the City
Director of Public Works may request that the Developer complete more than one
cleaning of the holding ponds.
(c) Buffer Area Adjacent to Ponds. All ponds servicing the Development Property
whether such ponds are located on City owned property, easements running in
favor of the City or on private property must maintain a minimum of an 8 foot
natural buffer from the high water mark. Notwithstanding the above, one access to
each pond may be created by the City in a location determined by the City in its
sole discretion. Developer shall be responsible for the cost of signage around said
buffer areas indicating that the buffer is part of a wetland restoration project which
may not be distributed without the written permission of the City. Said signs shall
be posted in locations reasonably determined by the City.
7.17 Storm Water. The Developer shall pay for storm water and drainage improvements the
greater of either (a) $.25 per square foot of the "Net Developable property" or the actual
cost of storm sewer outfall line from the edge of the development property line to the
approved discharge point. Net Developable Property is defined as the gross land area
minus the streets and other land area dedicated to the public. Notwithstanding the above, if
Developer does not expend at least $.25 per square foot of Net Developable Property on
storm water improvements for the currently platted phase of the Development Property,
Developer shall remit to the City the difference between the amounts actually spent on
storm sewer for that phase of the Development Property and $.25 per square foot.
Developer shall provide the City with a schedule of values for storm sewer improvements
constructed by Developer. The cost differential provided for by this paragraph is provided
to ensure that the City is compensated for downstream costs which may have been or will
be incurred by the City.
11
The Developer anticipates that the first phase in the development of the Development
Property will incur storm water charges for the benefit of future phases of development of
the Development Property. Therefore, charges to Developer for storm sewer in phases
after the initial phase of development will be adjusted to reflect credits for amounts
previously paid from prior phases completed by Developer.
7.18 Monuments. Developer may place, at Developer's sole cost and expense, identification
monuments on the entrances to the Development Property pursuant to City Ordinance
regulations. The type and design of monuments must be approved by the City Council.
Monuments shall be located on perpetual easements separate from drainage and utility
easements. Locations must be approved by the City Engineer. Prior to installation of any
monuments on the Development Property, Developer must create an association to
maintain said monuments. The association documents must be approved by the City's
attorney and originals provided to the City's attorney for recording against the
Development Property.
7.19 Reimbursement of Citys Costs. Except for costs included in special assessments for the
Improvements, the Developer shall reimburse the City for all costs, including all
reasonable engineering, legal, planning and administrative expenses, incurred by the City
in connection with all matters relating to the negotiation, administration and enforcement
of this Agreement and its performance by the Developer. Developer shall also reimburse
the City for any add-to-construction costs related to the installation of street lighting and
private utilities within the Development. Such reimbursement shall be made within 14
days of the date of mailing the City's notice of costs. If such reimbursement is not made,
the City may place a hold on all construction or other work related to the Development, or
refuse the issuance of building permits until all costs are paid in full. The City may further
declare a default .and collect its costs from the security deposited in accordance with
Section 3.3 of this Agreement.
7.20 Renewal of Security. If any escrow account or bond deposited with the City in accordance
with this Agreement shall have an expiration date prior to the Developer's obligations
hereunder being complete, the Developer shall renew such security or deposit substitute
security of equal value meeting the approval of the City at least thirty (30) days prior to the
expiration of such security. Failure to post such alternate security or renew such security
shall constitute a default and the City may place a moratorium on all construction or other
work related to the Development, refuse the issuance of building permits, and declare the
entire amount thereof due and payable to the City in cash. Such cash shall thereafter be
held by the City as a security deposit in the same manner as the security theretofore held
by the City.
7.21 Platting. Developer must include all of the Development Property in the final plat of the
first phase of the development, with future phases of the development platted as Outlots.
The final plat must be recorded prior to the City or Developer initiating the installation
of Municipal Improvements on the Development Property.
7.22 Utility Location. Developer agrees that all private utilities within the Development will
be installed underground, including without limitations electrical, telephone, cable
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television and natural gas. Developer may receive an exemption from this requirement
if Developer demonstrates to the City Engineer that underground utilities would
not be physically possible. Any exemption shall be limited to the minimal area
necessary.
7.23 Plat Dedication. Upon approval and execution of this Agreement, the City shall approve
the final plat provided it otherwise meets the requirements of the City's Ordinance
governing Subdivisions. If the Plat contains the dedication of an easement, the use of
property within the area of an easement is specifically restricted by prohibiting the
construction of any structure or fence, planting trees or shrubs, or storing of personal
property within the area of the easement which could delay, restrict or impede access
within the easement area by a person or vehicle.
7.24 Street Lighting and Private Utilities. The Developer shall arrange for, install and pay for
street lighting and private utilities including natural gas, electricity, cable television, and
telephone. Developer will name all streets within the Development in accord with City
Ordinance regulations.
7.25 Wetlands. Developer shall take the following precautions to protect "any wetlands
within" the Property, as that term is defined in Minnesota Statute Section 103G.005,
Subd. 19;
(a) Upon completion of the site grading, the City shall place signs on any lots
containing wetlands to provide notice of the location of the wetland. The signs
shall be in a form and size as prescribed by the City, and will be typically placed
on lot lines where the wetland delineation crosses the lot line. The location and
number of signs for each lot shall be determined by the City Engineer. Sign
installation shall be paid for by the Developer.
(b) Prohibit filling of wetlands so long as Developer is the owner of the affected lot.
(c) Developer will, simultaneous with recording of the initial plat for the
Development Property, provide an easement and development restriction to the
City protecting the wetlands areas located within lots shown on the Preliminary
Plat. Said easement and development restriction shall be drafted by the City
Attorney and must provide that the wetlands located on the lots shown on the
Preliminary Plat may not be filled or distributed without the permission of the
City, which it may deny in its sole discretion, and any other applicable agency.
(d) Notwithstanding anything in this Agreement to the contrary, the Developer shall
be responsible for all wetland mitigation which is required for construction of any
of the Improvements, and Developer shall be responsible for all wetland
mitigation which may be required because of work done by or under the direction
of the Developer in the areas designated as future park. Developer will complete
and pay for all permitting costs, including monitoring as required by the permit,
credit purchases, and/or other mitigation costs which may be involved. The City
may, however, take action to minimize charges or costs to the City in the event
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the Developer fails to obtain all permits and complete all mitigation which maybe
necessary for the construction of the Municipal Improvements and/or work in
future parklands.
7.26 Proiect Specific Requirements.
(a) Grading Material - In the event of a shortage of suitable material to mass grade
the site in accordance with the grading plan accepted by the City, the developer
shall furnish and install a volume of select grading material, acceptable in quality
to the City Engineer, to balance the site earthwork in conformance with the
accepted grading plan. The City will withhold issuance of building permits until
the site is in full compliance with the accepted grading plan.
(b) Grading Easement -The developer shall provide the City with a blanket
temporary construction easement across all of the lots to technically perform
the mass grading operations outside of the public right-of--way as part of the
public improvement project.
(c) Temporary Road - As per the Stearns County Engineer Comments dated ,
the Street entitled Alliance is a temporary road. When the North east/west
corridor is developed and constructed as it abuts the Parkway Business Center,
Alliance Street will be vacated and the access to CR 133 will be terminated.
(d) Public Financing -Upon completion of Section 3.3 a-b of this Agreement, as
determined by the City, the City will issue GO Special Assessment bonds for the
financing of the improvements indentified in Section 3 of this agreement.
i. The bonds will be issued for a term of 15 years with the first assessment
revenue due and payable May 2010.
ii. The assessment will be payable with interest at a rate of .5% above the
rate the bonds are sold.
iii. The Developer guarantees payment of all assessments levied against any
of the Property relative to the construction of the Improvements. The
Developer also agrees to immediately reimburse the City for any principal
or interest payable on bonds issued by the City to finance the
improvements if assessments collected are insufficient to cover the
payment.
7.27 SAC/WAC and Trunk Charges.
(a) Water and Sewer Access Charges. In addition to the other assessments and costs
as set forth herein, Water and Sewer Access Charges shall be paid by the owner of
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each lot at the time the building permit is issued. Charges shall be those in effect
at the time the permit is issued.
(b) Water and Sewer Area Trunk Charges. The Parkway Business Center is subject
to a Trunk Sewer Charge payable by the owner of each lot at the time the building
permit is issued. Charges shall be those in effect at the time the permit is issued.
7.28 Plowins Snow during winter carry-over. The Developer shall allow one winter to pass
after the bituminous base course has been placed before constructing the bituminous
wear course. The wear course will typically be placed near the end of the construction
season following winter carry-over. The city will plow those streets necessary for
reasonable access to lots where building permits have been issued provided the following
conditions have been met:
(a) The Developer is current on all requirements in this Developer Agreement.
(b) The "as-built" grading plan has been completed and all grading and erosion
control items are current.
(c) Private utilities have been installed.
(d) All sanitary sewer and water main items have been tested and approved
(e) Storm sewer, concrete curb and gutter and bituminous base course have been
constructed to project specifications.
(fj All signage is in place.
(g) All valve box and manhole castings have been set below the surface of the
bituminous base course and are accessible (castings will be adjusted with risers
before placing the bituminous wear course).
Any damage to the curb and gutter or other improvements due to snow plowing
operations will be repaired by the Developer before placing the final wear course. The
Developer will remove any snow banks or piles that have accumulated due to snow
plowing operations that restrict access to building sites. Snow plowing in new
developments will typically be scheduled after other existing streets have been plowed.
7.29 Default and Remedies. If Developer fails in any way to perform or observe any
covenant, condition, or obligation contained in this Agreement the City may do any, all
or any combination of the following after 15 days written notice to the developer: (i) halt
all further approvals regarding platting, improvements or issuance of building permits or
occupancy permits relating to the Development Property, (ii) seek injunctive relief, (iii)
terminate this Agreement and all of the obligations contained herein without terminating
Developer's obligation to reimburse the City for costs it has incurred with regard to this
Agreement or the Development Property; (iv) draw on or utilize any funds or other
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security which have been provided to the City pursuant to this Agreement; and/or (v)
take any other action at law or in equity which maybe available to the City.
7.30 Assi ent. This Agreement may not be assigned by Developer except upon obtaining
the express written consent of the City.
7.31 Inte arm. This Agreement contains all of the understandings and agreements between
the parties. This Agreement may not be amended, changed, or modified without the
express, written consent of the parties hereto.
7.32 Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
7.33 Governed by Minnesota Law. This Agreement shall be interpreted under the laws of
the State of Minnesota.
7.34 Representation. Rajkowski Hansmeier Ltd. represents the City with regard to this
Agreement. Developer is hereby advised to seek independent legal advice prior to
execution of this Agreement.
7.35 Additional Terms. The following additional terms are being made a part of this
Development Agreement to continue in force and effect as though they were dedications
of the plat, unless according to their terms are intended to terminate earlier:
Signed and executed by the parties hereto on this _ day of
ATTEST
By
City Administrator/Clerk
STATE OF MINNESOTA
COUNTY OF
)ss
CITY OF
By
Mayor
DEVELOPER:
By
Name
Title
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20
On this day of , 20 ,before me, a notary public within and for
said County, personally appeared and , to
me personally known, who, being each by me duly sworn did say that they are respectively the Mayor and
the City Administrator/Clerk of the City of ,the municipal corporation named in the foregoing
instrument, and that the seal affixed to said instrument is the municipal seal of said corporation, and that
said instrument was signed and sealed in behalf of said municipal corporation by authority of its City
Council and said Mayor and City Administrator/Clerk acknowledged said instrument to be the free act
and deed of said corporation.
Notary Public
STATE OF MINNESOTA )
)ss
COUNTY OF )
On this day of , 20 ,before me, a notary public within and for said
County, personally appeared , to me personally known, who, being
by me duly sworn, did say that he/she is the President of ,the
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 corporation by
authority of its Board of Directors and said President acknowledged said instrument to be the free act and
deed of said corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Thomas G. Jovanovich - 5284X
Susan M. Dege - 0290385
Rajkowski Hansmeier Ltd.
11 Seventh Avenue North
P.O. Box 1433
St. Cloud, Minnesota 56302
Telephone: (320) 251-1055
L:\city\stjoe
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
FINAL PLAT ILLUSTRATION
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EXHIBIT C
DEVELOPER CONSTRUCTED IMPROVEMENTS
1. Completion Deadlines. The Developer agrees to proceed with said the Improvements
entirely at its expense, and to complete said improvements by within one year of the
initiation of work on that phase of the Project and final wear course within two years of
the initiation of work on that phase. The construction documents shall establish
completion dates at or before the dates shown above.
2. En 'nig Bering Services. The Developer will retain an engineer satisfactory to the City to
prepare complete construction Plans and Specifications for The Improvements. The
Developer shall make his engineer aware of the provisions in this Agreement. The
Developer's engineer shall:
(a) Arrange for soil borings in accordance with Exhibit B and/or such other
subsurface investigations as the City may require.
(b) Prepare construction plans, specifications, and estimate in accordance with
Exhibit B.
(c} Secure all necessary permits including those required by the Minnesota Pollution
Control Agency, the Minnesota Department of Health, the Department of Natural
Resources, Stearns County, or any other regulatory agency that has jurisdiction.
(d) Submit items one (1) through eight (8) on Exhibit "C" prior to beginning any
construction in the development.
(e) Complete an Environmental Assessment Phase I, if necessary and any other
related environmental documents, reports, or studies as may reasonably be
required by the City.
(f) Provide all necessary construction staking and related survey work.
(g) Provide construction administrative services on behalf of the Developer, including
the following: review shop drawings, coordinate construction staking, monitor
permit requirements, monitor site grading and erosion control work designated as
developer's responsibility in Exhibit "D", process applications for payment,
prepare change orders, monitor completion dates, coordinate field issues with
Contractor and Developer, participate in final inspection. Prepare operation and
maintenance manuals in accordance with Exhibit "B". Submit items nine (9) and
ten (10) on Exhibit "C" in a timely manner during construction.
(h) Prepare record drawings. Submit item eleven (11) on Exhibit "C" to the City
Engineer within 30 days of receiving field measurements from the City's on-site
representative. Record drawings shall include locational measurements to all
manholes, valves, catch basins, and sewerlwater services.
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(i) Prepare and submit such other documentation as the City may require.
3. The City Engineer shall:
(a) Provide such City project standards, including special details, insurance
requirements and specifications, as the City may require.
(b) Review and approve Plans and Specifications.
(c) Provide a City Representative for resident construction observation throughout
the construction period.
(d) Provide field information to the Developer for use in preparing record drawings.
(e) Conduct a final inspection and review final construction documentation.
(f j Recommend Acceptance of Improvements to the City.
4. Cost Escrow. The Developer shall bear the cost of the above noted City Engineering
Services, consultant services, City Attorney services, and City Administrator costs and
shall, upon execution of this Agreement, place in escrow with the City cash or
irrevocable letter of credit in the amount of $25,000.00 which shall be applied to the
payment of the cost of said services. Should the escrowed amount exceed the cost to the
City, the City shall return to the Developer all unused funds, including accumulated
interest. Should the expense to the City exceed the above amount, the City will notify the
Developer of additional amounts to be paid into the escrow account. The Developer shall
fund the escrow account in the amount requested by the City within 15 days after notice.
No building permits shall be issued until the escrow account is funded as requested by the
City.
The Developer shall pay a reasonable fee for in-house administration of the development
by the City staff and the City's consulting professionals to include but not be limited to
engineers, planners and attorneys. City administration will include monitoring of
construction observation, consultation with Developer and his engineer on the status of or
problems regarding the project, coordination for final inspection and acceptance, project
monitoring during the warranty period, and processing of requests of reduction in
security. The Developer shall pay for construction monitoring performed by the City's
consulting professionals at their customary hourly rates. Construction monitoring shall
include part- or full-time inspection of proposed public utilities and street construction by
the City Engineer.
5. City as Third Partv Beneficiary. The City shall not have any direct contractual
relationship with the Contractor, but shall be considered a third party beneficiary to the
contract entered between the Developer and the Contractor. The City shall not be liable
to the Contractor for the Developer's breach of a duty to the Contractor.
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6. Easements. The Developer shall make available to the City, at no cost to the City, all
permanent and temporary easements necessary for installation and maintenance of The
Improvements.
7. Insurance. The Developer shall provide evidence of Comprehensive General Liability
and Broad Form Property Damage Insurance including contractual coverage in the
amount of at least $1,000,000 per occurrence and $1,000,000 aggregate and excess or
umbrella coverage of $1,000,000 per occurrence and $2,000,000 aggregate. The City and
City Engineer shall be named as an additional insured on such policy by endorsement.
The Developer's insurance certificate shall be in a form approved by the City, and shall
be delivered to the City at least three days prior to the commencement of any work on the
Improvements. Such insurance shall remain in full force and effect through the end of
the warranty period described in Section 3.12.
The Developer shall cause each person with whom Developer contracts for the
construction and installation of any Improvements to provide evidence of insurance. Said
coverage shall include Contractor's General Liability, Owner/Engineer Protective
Liability, Automobile Liability, Contractual Liability, and Worker's Compensation
coverage. The Developer, or each person with whom the Developer contracts shall
obtain excess or umbrella liability coverage of $1,000,000.00 per occurrence and
$2,000,000.00 in the aggregate. The City and the City Engineer shall be named as an
additional insured on such policy by endorsement.
The Developer shall provide builder's risk insurance if there are any structures to be
constructed as part of the development (lift stations, pump houses, etc.). All insurance
coverage shall be provided in accordance with City specifications.
8. Performance Security. Prior to the actual construction of the Improvements pledged to be
constructed by the Developer, then in that event, the Developer shall post with the City a
bond, irrevocable letter of credit or dedicated escrow account (the "Security") in the
estimated amount of 1.25 times the Engineer's Estimate of the likely costs of such
improvements, conditioned upon the faithful construction of the improvements according
to the Plans and Specifications, and final approval of the City Engineer, and the terms of
this Development Agreement. As the improvements are partially completed, the
Developer may request the City to release a portion of the Security representing the cost
of the completed improvements as determined by the City Engineer, but at all times there
shall be Security in an amount of at least 125% of the estimated cost of the unfinished
improvements. If the construction contracts are under the control of one Prime
Contractor ,the Prime Contractor may provide the performance security required by this
section.
9. Labor and Materialman's Bond. Upon execution of this Agreement, the Developer shall
also provide the City with a labor and materialman's bond, guaranteeing the payment of
all workmen performing labor or services, and all supplies or materialmen providing
materials for the Improvements. This bond shall not be released until the Developer has
provided the City Engineer with proof of payment of all laborers and materialmen in the
form of release, signed receipts, or lien waivers. If the Developer contracts with a single
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Prime Contractor, and all construction contracts are under control of the Prime
Contractor, the Prime Contractor may provide the laborer and materialmen bond required
by this section as long as the Prime Contractor agrees to waive any lien rights for the
labor and/or material provided by the Prime Contractor.
10. Warranty Bond. The Developer shall fully and faithfully comply with all the terms of
any and all Contracts entered into by the Developer for the installation and construction
of all The Improvements and hereby warrants and guarantees the workmanship and
materials for a period of two years following the City's final acceptance of the
Improvements. In addition to the Security required by Section 3.10 herein, the Developer
hereby warrants and shall post a warranty bond, warranting the condition of the materials
and workmanship of the improvements for a period of two years following the City's
final acceptance of the Improvements. If any claims are made in writing within the
warranty period, the bond shall not be released until such claims are resolved.
11. Completion Date and Inspection. The work the Developer is to perform under this
Agreement must be done and performed by Developer in a good and workmanlike
manner and completed by the date set in paragraph 3.2 of this Agreement. The storm
sewer, water and sewer mains, roadways, and all other improvements called for in the
Plans and Specifications will be subject to the inspection and approval of the City and the
City Engineer, and in case any material or labor supplied shall be rejected by the City or
the City Engineer, as defective or unsuitable, then such rejected material or labor shall be
removed and replaced with approved material or labor, to the satisfaction and approval of
the City, entirely at the cost and expense of the Developer.
12. Damage to City Infrastructure. Developer shall promptly repair, at the Developer's
expense, any damage to the City's existing infrastructure. Repairs shall be to original
condition or better.
13. Dedication of Utilities and Roadways. Developer will dedicate to the City, after their
completion, all water and sewer mains, storm sewer mains, storm sewer, roadways and
other structures located in the right-of--ways on the Development Property shown in the
Plans and Specifications. Developer will provide to the City any and all necessary
easements and/or dedications or deeding to ensure that the City has the ability to
maintain, repair, replace or modify the sewer and water mains, storm sewers, and holding
and sedimentation ponds located on the Development Property.
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