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HomeMy WebLinkAbout03-01-2022 Development Contract1111111111111111111111111111111111111111 LAND TYPE Torrens (T) DOC NUM 5925477 Certified, filed and/or recorded on Mar 1, 2022 12:00 PM Office of the Registrar of Titles Hennepin County, Minnesota Amber Bougie, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 98 Document Recording Fee Multiple Certificates Affected Fee Document Total Existing Certs 1479204, 1479206, 1485982 This cover sheet is now a permanent part of the recorded document. Pkg ID 2404542C $46.00 $40.00 $86.00 DEVELOPMENT CONTRACT (Developer Installed Improvements) PENCE LANE 2ND ADDITION PROJECT NO. LA21-000061 AGREEMENT dated P/�&-4 bec 6 , 2021, by and between the CITY OF ORONO, a Minnesota municipal corporation ("City"); and WILLIAM M. DUNKL,EY AND SUSAN K. DUNKLEY, husband and wife ("Developer") 1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a plat for PENCE LANE 2ND ADDITION (referred to in this Contract as the "Plat"). The land to be subdivided by the Plat (the "Land") is situated in the City of Orono, County of Hennepin, State of Minnesota, and is legally described on the attached EXHIBIT A. 2. CONDITIONS OF PLAT APPROVAL. The Plat shall adhere to the purpose and intent of the Orono Community Management Plan, as amended. The City hereby approves the Plat on condition that the Developer enter into this Contract and furnish the security required by it. The City will cause the Plat to be duly recorded in the office of the Registrar of Titles in and for Hennepin County, Minnesota, promptly after compliance by the Developer with all conditions 1 precedent to such recording pursuant to this Contract, which conditions precedent the Developer shall cause to be satisfied within 180 days after the City Council approves the final Plat. 3. RIGHT TO PROCEED. Within the Land, the Developer may not grade or otherwise disturb the earth, construct streets, utilities, public or private improvements, or any buildings until all the following conditions have been satisfied: 1) this Contract has been fully executed by both parties and filed with the City Clerk, 2) the necessary "security" (defined below) has been received by the City, and 3) the Plat and this Agreement have been submitted to the Hennepin County Recorder's Office and Office of the Registrar of Titles. 4. PHASED DEVELOPMENT. N/A 5. PRELIMINARY PLAT STATUS. N/A 6. CHANGES IN OFFICIAL CONTROLS. For two (2) years from the date of this Contract, no amendment to the City's Comprehensive Plan, or official controls shall apply to or affect the use, development density, lot size, lot layout or dedications of the Land unless required by state or federal law or agreed to in writing by the City and the Developer. Thereafter, notwithstanding anything in this Contract to the contrary, to the full extent permitted by state law, the City may require compliance with any amendments to the City's Comprehensive Plan, official controls, platting or dedication requirements enacted after the date of this Contract with respect to property which did not receive final plat approval prior to any such amendment. 7. DEVELOPMENT PLANS. The Plat shall be developed in accordance with the following plans (collectively, the "Plans"). The Plans shall not be attached to this Contract. The erosion control plan may also be approved by-Minnehaha Creek Watershed District (MCWD). If the Plans vary from the terms of this Contract, the terms of this Contract shall control. The Plans PITa 0 Plan A — Plat of Pence Lane, 2nd Addition Plan B — Construction Plans for the Cul de Sac 8. IMPROVEMENTS. The Developer shall install and pay for the following as required to be built in accordance with the approved Plans (the "Improvements"): A. Site Grading and Erosion Control B. Setting of Iron Monuments C. Surveying and Staking D. Private cul de sac E. Traffic Control Signs and Street Signs H. Stormwater Management Facilities The Improvements shall be installed in accordance with the City subdivision ordinance; City standard specifications for utilities and street construction; and any other ordinances including those concerning erosion and drainage and any prohibiting grading, construction activity, and the use of power equipment. The Developer shall submit plans and specifications which have been prepared by a competent registered professional engineer to the City for approval by the City Engineer. The Developer shall instruct its engineer to provide adequate field inspection personnel to assure an acceptable level of quality control. In addition, the City may, at the City's discretion and at the Developer's expense, have one or more City inspectors and a soil engineer inspect the work as the City may reasonably determine. The Developer, its contractors and subcontractors, shall follow all instructions received from the City's inspectors. The Developer's engineer shall provide for on-site project management. The Developer's engineer is responsible for design changes and contract administration between the Developer and the Developer's contractor. The Developer or its engineer shall schedule a pre -construction meeting at a mutually agreeable time at the City Council chambers with all parties concerned, including the City staff, to review the program for the construction work. Within thirty (30) days after the completion of the Improvements and before the "security" is 9 released, the Developer shall supply the City with a complete set of reproducible "as constructed" Plans, and an electronic file of the "as constructed" Plans in an auto CAD file based upon the Hennepin County coordinate system, all prepared in accordance with City standards. 9. IRON MONUMENTS. In accordance with Minnesota Statutes Section 505.02 and the Orono City Code, the final placement of iron monuments for all lot corners must be completed before the "security" is released. The Developer's surveyor shall submit a written notice to the City certifying that the monuments have been installed. 10. PERMITS. The Developer shall obtain or require its contractors and subcontractors to obtain all necessary permits, including but not limited to the following to the extent required: • MnDNR for Dewatering • City of Orono for Building Permits • MCWD for erosion control permit and storm water management permit • General Construction Permit (NPDES: National Pollutant Discharge Elimination System) from MPCA 11. DEWATERING. Due to the variable nature of groundwater levels and stormwater flows, it will be the Developer's and the Developer's contractors' and subcontractors' responsibility to satisfy themselves with regard to the elevation of groundwater in the area and the level of effort needed to perform dewatering and storm flow routing operations. All dewatering shall be in accordance with all applicable county, state, and federal rules and regulations. DNR regulations regarding appropriations permits shall also be strictly followed. 12. TIME OF PERFORMANCE. The Developer shall install all Improvements as contemplated by Section 8 and the approved Plans by December 31, 2022, with the exception of the final wear course of asphalt on the cul de sac. The final wear course shall be installed between 4 August 15th and September 15th 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 an extension is granted, it shall be conditioned upon updating the "security" to reflect cost increases and the extended completion date. Final wear course placement must have the written approval of the City Engineer, and may be delayed or scheduled at any time of the year based upon existing site conditions at the discretion of the City Engineer. 13. LICENSE. The Developer hereby grants the City, its agents, employees, officers, and contractors a license to enter the Land to perform all work and inspections deemed appropriate by the City in conjunction with development of the Land. 14. EROSION CONTROL. Prior to initiating site grading, Plan C — Grading, including all required erosion controls, shall be implemented by the Developer and inspected and approved by the City. The City may impose additional erosion control requirements if reasonably required. All areas disturbed by excavation and backfilling operations shall be reseeded within five (5) days after the completion of the work, weather permitting, or in an area that is inactive for more than ten (10) days unless authorized and approved by the City Engineer. Except as otherwise provided in the erosion control plan, seed shall be in accordance with the City's current seeding specification which may include certified oat seed to provide a temporary ground cover as rapidly as possible. All seeded areas shall be fertilized, mulched, and disc anchored as necessary for seed retention. The parties recognize that time is of the essence in controlling erosion. If the Developer does not comply with the erosion control plan and schedule or supplementary instructions received from the City, the City may take such action as it deems appropriate to control erosion. The City will endeavor to notify the Developer in advance of any proposed action, but failure of the City to do so will not affect the Developer's and City's rights or obligations hereunder. If the Developer 5 does not reimburse the City for any cost the City incurred for such work within ten (10) days, the City may draw down the "security" to pay any costs. No development, utility, or street construction will be allowed and no building permits will be issued unless the Land is in full compliance with the approved erosion control plan. 15. GRADING PLAN. The Land shall be graded in accordance with the approved Plan C — Grading. The plans shall conform to City of Orono specifications. Within thirty (30) days after completion of the grading and before the City approves individual building permits on the lots, the Developer shall provide the City with an "as constructed" grading plan certified by a registered land surveyor or engineer that all improvements are completed according to the approved plan. Notwithstanding the foregoing, the City may issue building permits to the Developer, prior to completion of all grading, provided the City Engineer has determined that adequate erosion control measures are in place. The "as constructed" plan shall include field verified elevations of the following: a) location and elevations along all swales, and ditches; and b) lot corner elevations. 16. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from construction work by the Developer, builders, subcontractors, their agents or assigns, at least once per week and more frequently as needed. Prior to any construction on the Land, the Developer shall identify in writing a responsible parry and schedule for erosion control, street cleaning, and street sweeping. 17. CONSTRUCTION AND MAINTENANCE OF IMPROVEMENTS. Developer shall enter into and execute a declaration of covenants regarding the private road easement and maintenance of said road. Upon completion of the Improvements, the City shall inspect the Improvements and notify Developer if any of the Improvements do not conform to the requirements of this Contract. Gf 18. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. Developer shall, contemporaneously with the execution of this Contract, maintain an escrow account with the City of $10,000 to cover the cost of engineering fees and construction observation, legal fees, planning fees, administrative expenses and other costs related to this Development. City engineering administration will include monitoring of construction observation, consultation with Developer and its engineer on status or problems regarding the project, coordination for final inspection and acceptance, project monitoring during the warranty period, and processing of requests for reduction in the "security." Fees for this service shall be at standard hourly rates. These fees shall be billed monthly. All fees and costs incurred by the City in connection with this Development shall be charged against said escrow account which shall remain in effect until the completion of this Development. Any funds remaining in the escrow accounts after the completion of this Development shall be refunded to the Developer. In the event that the escrow account herein is depleted, Developer agrees that upon request of the City, Developer shall post additional sums of money to replenish the accounts to their original balance to cover projected City costs as determined by the City. Developer agrees that the escrow account shall always have a balance of no less than $1,000.00. Developer shall be entitled, upon request, to an itemized statement of all costs and fees charged against this escrow account. Developer shall pay all fees relating to the Development including, but not limited to, legal, engineering, planning, and recording fees. Through previous applications, LA18-000072 ($1,000) and LA18-000092 ($3,200), and this application ($5,000), the Developer has provided the City escrow funds in the amount of $9,200. 19. CLAIMS. In the event that the City receives claims from labor, material, or others that work required by this Contract has been performed, the sums due them have not been paid, and 7 the laborers, material, or others are seeking payment from the City, the Developer hereby authorizes the City to commence an interpleader action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Courts, to draw upon the "security" in an amount up to 125 percent of the claim(s) and deposit the funds in compliance with the Rule, and upon such deposit, the Developer shall release, discharge, and dismiss the City from any further proceedings as it pertains to the funds deposited with the District Court, except that the Court shall retain jurisdiction to determine attorneys' fees pursuant to this Contract. 20. STORM WATER AND DRAINAGE TRUNK FEE. Not applicable. 21. WATER CONNECTION FEE. Not applicable. 22. SEWER CONNECTION FEE. Not applicable. 23. PARK DEDICATION FEE. Not applicable. 24. LANDSCAPING. All landscaping shall be installed in accordance with the approved landscape and restoration plan prior to release of any security. 25. SPECIAL PROVISIONS. The following special provisions shall apply to development of the Land: A. Implementation of and adherence to the findings and conditions listed in this Resolution 7224 Approving a Preliminary and Final Plat for Pence Lane, 2nd Addition (File No. LA21-000061). B. Final Plat approval is subject to Minnehaha Creek Watershed District ("MCWD") approval and permits as required. The City will not release the Plat for recording until the MCWD has approved the stormwater management plans and the Developer has provided evidence that all required MCWD permits have been obtained. 8 D. The Developer must obtain a permit from the City prior to installation of any subdivision identification signs or monuments for the Land. . E. Prior to City Council approval of the final Plat, the Developer shall furnish a boundary survey of the Land with all property corner monumentation of the Land in place and marked with lath and a flag. Any encroachments on or adjacent to the Land shall be noted on the survey. The certificate of survey must also include a certification that all irons for a specific lot have either been found or set prior to the issuance of a building permit for that lot. F. The Developer shall pay to the city engineer the amounts incurred for City base map upgrading. G. The Developer shall submit the final Plat in electronic format. The Plat shall be created using Hennepin County Coordinates. The electronic format shall be Auto CAD file. The Developer shall also submit two complete sets of the Plat on Mylar (one copy for the City's records and one copy for recording with Hennepin County). The Developer shall also provide one copy printed to fit on 11"x17" Mylar. H. Access easements shall be provided over Outlot A for proposed Lot 2 and for the benefit of the property located at 2715 Pence Lane in the City of Orono. 26. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the terms of this Contract, payment of the costs of all Improvements and construction of all Improvements, the Developer shall furnish the City with a letter of credit, in the form attached hereto (the "security"), from a bank for 125% of the cost of the Improvements, including any required landscaping. The amount of the security shall be $24,000. The amount of the security includes all of the security requirements set forth in this Contract, and was calculated as follows: CONSTRUCTION COSTS: Erosion Control and site stabilization 9 $ 5,000 Improvements $11,200 Lot Corners/Iron Monuments $3,000 TOTAL COSTS $19,200 TOTAL SECURITIES (Total Costs X 125%) $24,000 The bank shall be subject to the approval of the City Administrator. The City may draw down the security, upon five (5) business days' prior written notice to Developer, for any violation of the terms of this Contract. Amounts drawn shall not exceed the amounts necessary to cure the default. If the Improvements are not completed at least thirty (3 0) days prior to the expiration of the security, the City may also draw it down. If the security is drawn down, the proceeds shall be used to cure the default. Upon receipt of proof satisfactory to the City that work has been completed and financial obligations to the City have been satisfied, with City approval the security may be reduced from time to time by ninety percent (90%) of the financial obligations that have been satisfied. Ten percent (10%) of the amounts certified by the Developer's engineer, and approved by City's Engineer, shall be retained as security until all Improvements have been completed, all financial obligations to the City satisfied, the required "as constructed" Plans have been received by the City, a warranty security is provided, and the public Improvements are accepted by the City Council. The City standard specifications for utilities and street construction outline procedures for security reductions. 27. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash requirements and fees due under this Contract, which must be paid in cash at the time of final plat approval: Escrow (Section 18) $800.00 Total Cash Requirements & Fees $800.00 10 28. WARRANTY. The Developer warrants all Improvements against poor material and faulty workmanship. The warranty period for streets is one year. The warranty period for underground utilities is two years and shall commence following completion and acceptance by the City Council. The one-year warranty period on streets shall commence after the final wear course has been installed and accepted by the City Council as documented in official City minutes. The Developer shall post a maintenance bond, letter of credit or cash deposit (the "Maintenance Security") in an amount reasonably determined by the City Engineer. The City Engineer shall examine the condition of the Improvements when determining the amount of the Maintenance Security. The City shall retain ten percent (10%) of the security until the Maintenance Security is furnished the City or until the warranty period expires, whichever first occurs. The retainage may be used to pay for warranty work. The City standard specifications for utilities and street construction identify the procedures for final acceptance of streets and utilities. 29. RESPONSIBILITY FOR COSTS. A. Except as otherwise specified herein, the Developer shall pay all costs incurred by it or the City in conjunction with the development of the Land, including but not limited to Minnehaha Creek Watershed District charges, legal, planning, engineering and inspection expenses incurred in connection with approval and acceptance of the Plat, the preparation of this Contract, review of construction plans and documents, and all costs and expenses incurred by the City in monitoring and inspecting development of the Land. B. The Developer shall hold the City and its officers, employees, and agents harmless from claims made by itself and third parties for damages sustained or costs incurred resulting fiom Plat approval and development of the Land. The Developer shall defend and indemnify the City and its officers, employees, and agents against any claims or lawsuits of any 11 kind or arising out of or related to the Plat, including all approvals and permits issued as a result of the Plat, and for all costs, damages, or expenses which the City may pay or incur in consequence of such claims, including attorneys' fees. C. The Developer shall reimburse the City for reasonable costs incurred in the enforcement of this Contract, including engineering and attorneys' fees. D. The Developer shall pay, or cause to be paid when due, and in any event before any penalty is attached, all special assessments referred to in this Contract. This is an obligation of the Developer and shall continue in full force and effect even if the Developer sells one or more lots, the Land, or any part of it. E. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Contract within thirty (30) days after receipt. If the bills are not paid on time, the City may halt development and construction of the Land until the bills are paid in full. Bills not paid within thirty (3 0) days shall accrue interest at the rate of eighteen percent (18%) per year. F. In addition to the charges and special assessments referred to herein, other charges as required by City ordinance or via other agencies for which City acts as agent may be imposed such as, but not limited to, connection charges and building permit fees. 30. DEVELOPER'S DEFAULT. In the event of default by the Developer as to any of the work to be performed by it hereunder, the City may, at its option, perform the work and the Developer shall promptly reimburse the City for any expense incurred by the City, provided the Developer, except in an emergency as determined by the City, is first given notice of the work in default, not less than forty-eight (48) hours in advance. This Contract is a license for the City to act, and it shall not be necessary for the City to seek a Court order for permission to enter the Land. 12 When the City does any such work, the City may, in addition to its other remedies, assess the cost in whole or in part against any portion of the Land owned by the Developer or any successor in interest to the Developer. 31. MISCELLANEOUS. A. The Developer represents to the City that the Plat complies with all city, county, state, and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the Plat does not comply, the City may, at its option, refuse to allow construction or development work on the Land until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. Contract. B. Third parties shall have no recourse against the City or Developer under this C. Breach of the terms of this Contract by the Developer shall be grounds for denial of building permits, including those for lots sold to third parties. D. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Contract is for any reason held invalid, such decision shall not affect the validity of the remaining portions of this Contract. E. Grading and one lift of asphalt shall be installed on all streets prior to issuance of any building permits for homes accessing via said streets. F. If building permits are issued prior to the completion of all Improvements, the Developer assumes all liability and costs resulting in delays in completion of Improvements and damage to Improvements caused by the City, Developer, its contractors, subcontractors, material men, employees, agents, or third parties. 13 G. In addition to the charges referred to herein, other charges may be imposed such as, but not limited to, building permit fees. H. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. This Contract shall run with the Land and may be recorded against the Land. The Developer covenants with the City, its successors and assigns, that the Developer is well seized in fee title of the Land and/or has obtained consents to this Contract, in the form attached hereto, fiom all parties who have an interest in the Land; that there are no unrecorded interests in the Land; and that the Developer will indemnify and hold the City harmless for any breach of the foregoing covenants. J. Each right, power or remedy herein conferred upon the City is cumulative and in addition to every other right, power or remedy, express or implied, now or hereafter arising, available to the City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power or remedy. K. The Developer may not assign this Contract without the written permission of the City Council. The Developer's obligations hereunder shall continue in full force and effect even if the Developer sells one or more lots in the Plat, the Land, or any part of it. Upon request, the City shall provide, in recordable form, a release of any lot in the Plat from this Development Contract if the City determines that the terms and conditions of this Contract have been satisfied. 14 ( P L. Developer shall be responsible for all snow removal from vacant lots to the extent that City Ordinance requires snow removal. Developer shall be responsible for ensuring that all vacant lots comply with the City's Code regarding nuisances. 32. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, its employees or agents, or mailed to the Developer by certified mail at the following address: William or Susan Dunkley, 3405 Annapolis Lane North, Suite 100, Plymouth, MN 55447. Notices to the City shall be in writing and shall be either hand delivered to the City Administrator, or mailed to the City by certified mail in care of the City Administrator at the following address: Orono City Hall, 2750 Kelley Parkway, Orono, Minnesota 55356. Either party may change the address to which notices to such party thereafter shall be given, by providing to the other party notice of such change. [Remainder of Page Intentionally Left Blank.] 15 r/ CITY OF ORONO p� - By: ,�.�....`.. Mayor Dermis Walsh (SEAL) By: Adam Edwards, City Administrator STATE OF MINNESOTA ) (SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this — ;b4k" day of h , 2021, by Dennis Walsh and by Adam Edwards, respectively the Mayor and City Administrator of the City of Orono, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority grante y its City Qouncil. lir " 4 Notary Public _:. E i2t sra> ANNA tvfARIE CARLSON � `- NOTARY PUBLIC • tdINN�S07A My Commlss ion Expires Jan. 31, 2025 16 STATE OF MINNESOTA ( ss. C • L�II�i��l�a�l�l�i�l'�I�I DEVELOPER: By _,,o A William M. Dunkley Susan The foregoing instrument was acknowledged before me this 2021, by W,11;4m MDtk1L, c Stl ,,x,12 DRAFTED BY: CAMPBELL KNUTSON Professional Association Grand Oak Office Center 1 860 Blue Gentian Road, #290 Eagan, Minnesota 55121 Telephone: (651) 452-5000 SNC day of husband and wife. 17 FEE OWNER CONSENT TO DEVELOPMENT CONTRACT Eric Vogstrom and Elizabeth Vogstrom, married to each other, fee owners of all or part of the Land, the development of which is governed by the foregoing Development Contract, affirm and consent to the provisions thereof and agree to be bound by the provisions as the same may apply to that portion of the subject property owned by them. Dated this � day of Ce�vb rr STATE OF MINNESOTA _ 2021. ( ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me thisday of 2021, by Eric Vogstro Elizabeth Vogstrom, married to each other. � e �� of Public www�nn!v� L. SCHEIBER Notary Public-Mh mOta DRAFTED BY: I#REBECCA y c„r,"w Evkee Jenn st, 2= CAMPBELL, KNUTSON Professional Association Grand Oak Office Center I 860 Blue Gentian Road, Suite 290 Eagan, MN 55121 Telephone: 651-452-5000 SNC 18 SECURITY Security for the project is provided by a cash deposit of $24,000, paid October 6, 2021 with check 13922. 20 EXHIBIT A to DEVELOPMENT CONTRACT Legal Description of Land as Final Platted Lots 1 and 2, Block 1, Outlot A, Pence Lane, Hennepin County, Minnesota. 00)