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HomeMy WebLinkAbout2011-04-06 PACKET 04.H.REQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA MEETING ITEM # DATE 4/6/11 PREPARED BY Community Development John McCool ORIGINATING DEPARTMENT STAFF AUTHOR COUNCIL ACTION REQUEST Consider approving: 1. The development agreement with Wolterstorff LP for The Waters at Michael's Pointe. 2. The construction plans and specifications for The Waters at Michael's Pointe project. STAFF RECOMMENDATION 1. Approve the development agreement for The Waters at Michael's Pointe. 2. Approve the construction plans and specifications. ADVISORY COMMISSION ACTION DATE ❑ PLANNING ❑ PUBLIC SAFETY ❑ PUBLIC WORKS ❑ PARKS AND RECREATION ❑ HUMAN SERVICES /RIGHTS ❑ ECONOMIC DEV. AUTHORITY SUPPORTING DOCUMENTS ��91�n � _ TdZi]�I�� = »i•Il_��] ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ® MEMO /LETTER: Memo from John McCool dated 3/31/11 ❑ RESOLUTION: ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: ® OTHER: 1) Development agreement 2) Construction plans and specifications ADMINISTRATORS COMMENTS i ity Administrator Date COUNCIL ACTION TAKEN: ❑ APPROVED ❑ DENIED ❑ OTHER CITY OF COTTAGE GROVE MINNESOTA TO: Honorable Mayor and City Council Ryan Schroeder, City Administrator FROM: John McCool, Senior Planner DATE: March 31, 2011 RE: The Waters at Michael's Pointe — Approve Development Agreement Introduction Wolterstorff L.P. has signed the development agreement for their new residential project known as The Waters at Michael's Pointe. This project consists of 13 single - family lots and is located north of The Preserve at Cottage Grove subdivision and west of Jamaica Avenue. The final plat for this project was approved by the City Council on March 16, 2011. Discussion Wolterstorff L.P. will construct the public improvements. A development agreement was pre- pared and the developer has signed the agreement. The agreement requires the developer to provide to the City a letter of credit as a surety for the construction of the public improvements; an irrevocable letter of credit or cash deposit for the on -site improvements like erosion control, street sweeping, yard sod, etc.; and a cash escrow deposit for the necessary security for engi- neering, legal, and administrative expenses the City might incur. The developer is required to pay cash for area charge fees, major road charge, AUAR fee, sealcoating, street light utility fees, boundary markers, curb box inspections, and street light fixtures. The sureties and pay- ments must be received before their contractor can start constructing the public improvements. Crushing the stockpile of rock material and site grading is planned to start in the first week of April 2011, The City Engineer has reviewed and approved the construction plans for the public improve- ments. During the construction process, the City will perform inspections of the improvements. Once the public improvements are constructed, a report and recommendation from the City Engineer will be presented to the City Council to accept those public improvements. A copy of the development agreement and plans and specification are attached. Recommendation That the City Council approves: 1. The development agreement with Wolterstorff L.P.; and 2. The construction plans and specifications for The Waters at Michael's Pointe project. DEVELOPMENT AGREEMENT THE WATERS AT MICHAEL'S POINTE THIS DEVELOPMENT AGREEMENT ( "Agreement") is entered into on the 16th day of March, 2011 by and between Wolterstorff L.P., a Minnesota company, referred to as "Developer" and the City of Cottage Grove, a municipal corporation, situated in the County of Washington, State of Minnesota, hereinafter referred to as the "City." RECITALS A. Developer is the fee owner and developer of parcels of Land described in Exhibit "A ", which is to be developed as a subdivision in the City bearing the name "The Waters at Michael's Pointe" and may sometimes hereinafter be referred to as the "Subject Property." B. City has approved the preliminary plat (Resolution No.07-129) and final plat named The Waters at Michael's Pointe, a single- family development on 26.14 acres that is subdivided into 13 single - family lots; contingent upon compliance with certain City requirements including, but not limited to, matters set forth herein. C. City requires that certain public improvements, which are herein referred to as the "Public Improvements" including, but not limited to storm drainage systems, sanitary sewer, water, grading, driveway aprons, street lighting, trails, sidewalks, curb and gutters, and streets, be installed to serve the Subject Property and other properties affected by the development of the Subject Property, all at the expense of the Developer. D. Developer will perform other work and install certain improvements within the Subject Property, which work and improvements typically consist of boulevard sod, yard sod, landscaping, drainage swales, erosion control, street cleaning, and trees and the likes thereof and which improvements to the Subject Property shall be referred to herein as "On -Site Improvements ". Public Improvements and On- Site Improvements are collectively referred to as the "Improvements." E. Developer shall develop the Subject Property and install the Improvements in conformance with the plans and specifications previously reviewed and approved by the City, which are set forth on Exhibit `B" attached hereto (the "Approved Plans "). -1- NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in consideration of each party's promises and considerations herein set forth, as follows: 1. Request for Plat Approval. The City approved the final plat for The Waters at Michael Pointe on March 16, 2011. This residential subdivision is located in the City of Cottage, Grove, County of Washington, State of Minnesota, and is legally described in Exhibit A. 2. Conditions of Approval. The City hereby approves the Plat and this Agreement on the conditions that: a. The Developer enter into this Agreement and abides by the 21 conditions stipulated in Resolution No. 07 -129, approving the preliminary plat and the 60 conditions stipulated in the resolution approving the final plat; and b. The Developer provide to the City upon execution of this Agreement: An irrevocable letter of credit in the amount of $476,128.13 for all Public Improvements; and ii. An irrevocable letter of credit or cash deposit in the amount $25,059.38 for On -Site Improvements; and iii. A Developer's cash escrow deposit in the amount of $30,450.00 for the necessary security in accordance with the terms of this Agreement; and iv. A minimum one (1) year 100% Warranty Maintenance Bond. Said bond shall run from date of acceptance by the City of all Public Improvements and shall be provided by the contractor performing the Public Improvement work for Developer. At the time of final acceptance of the Public Improvements, if it is determined by the City that the Approved Plans were not adhered to, or that the Public Improvement work was done without City inspections, the Developer agrees to increase the length of the 100% Warranty Maintenance Bond up to a maximum of five (5) years as reasonably determined by the City Engineer. The Warranty period for streets commences after the final placement of the wear course; and V. Proof of public liability and property damage insurance covering personal injury, including death and claims for property damage which may be caused by reason of the operation of the Developer's equipment and laborers, or caused by Developer's completion of the Public Improvements. Limits for bodily injury or death shall not be less than $1,000,000 for one person and a $2,000,000 for each occurrence; limits for property damage shall not be less than $500,000 for each occurrence. The Developer must keep the insurance in force at all times that construction for the development is in progress. The City must be named as an additional insured on -2 the policy and must provide that the insurer must give the City ten days' written notice prior to cancellation or termination of the insurance policy; and vi. Cash payment to the City totaling $285,530.1.6 for the following: AUAR Fee $3,031.08 Sanitary sewer area charge $71,146.76 Water trunk area charge $30,739.44 Stormwater assessment area charge $41,427.76 Street sealcoating $3,010.00 iTrail sealcoating $2,562.50, Street light utility and surcharge $1,029.60' Street light poles &Luminaires $15,324.20' Major Road Fee $86,689.44'' Park and Open Space Markers $1,610.00 Curb Box Inspections $3,900.00 '5 %Engineering $25,059.38 _ Total $285,530.1.6 c. The Developer record the Plat with the County Recorder within six months after City Council approval of the final Plat. d. The Developer agrees to furnish all labor, materials and equipment per Resolutions No. 07 -129 (Preliminary Plat) and the city resolution approving the final plat for The Waters at Michael's Pointe and perform street and utility repair and adjustment in conformance with the approved drainage /development plans prepared by James R. Hill, Inc and dated March 7, 2011. A copy of the approved plans and specifications dated March 10, 2011 must be filed with the City Engineer prior to commencement of construction of the Improvements. 3. Development Plans and Right to Proceed. The Developer may not construct any Improvements until all the following conditions have been satisfied: a. This Agreement has been fully executed by both parties and filed with the City Clerk. b. The necessary securities, warranties, and escrows as required by this Agreement have been received by the City. c. The Plat has been submitted for recording with the Washington County Recorder's Office, and d. The City has issued a letter stating that all conditions of this Agreement have been satisfied and that the Developer may proceed. The Developer agrees that the Improvement work shall be done and performed in a workmanlike manner and all materials and labor shall be in strict conformity with the approved plans and specifications and City ordinances. Any material or labor supplied rejected by the City or City Engineer as defective or unsuitable per the Approved Plans shall be removed and replaced with 3- approved material to the reasonable satisfaction or approval of the City or the City Engineer at the cost and expense of Developer. The Developer shall submit a written schedule indicating the progress schedule and order of completion of the Improvements. It is further agreed that upon receipt of written notice from the Developer of the existence of causes over which the Developer has no control which will delay the completion of the Improvements, the City Council, in its discretion, may extend the date herein for completion and that any bond required shall be continued to cover the Improvement work during this extension of time. It is distinctly understood and agreed that all Improvement work covered by this Agreement shall be done at no expense to the City. The Developer agrees to commence the Public Improvement work required by this Agreement on or before June 1, 2011, and will have all Improvements done and fully completed to the reasonable satisfaction and approval of the City Engineer on or before September 1, 2011, except the wear course /final lift of all streets in the subdivision, which must be completed within three years from the date all other Improvements are accepted by the City or when 13 of the 14 houses have been constructed, whichever is sooner. 4. The Developer shall not do any work or furnish any materials not covered by the Approved Plans or this Agreement, for which reimbursement is expected from the City, unless such work is first ordered in writing by the City as provided in the Approved Plans. Any such work or materials which may be done or furnished by the Developer's contractor without such written order first being given shall be at the Developer's own risk, cost and expense and the Developer hereby agrees that without such written order the Developer will make no claim for compensation for work or materials so done or furnished. It is further agreed, anything to the contrary herein notwithstanding, that the City, City Council and its agents or employees shall not be personally liable or responsible in any manner to the Developer, the Developer's contractor or subcontractors, material men, laborers or to any other person or persons whomsoever, for any claim, demand, damages, actions or cause of any action of any kind or character arising out of or by reason of the execution of this Agreement or the performance and completion of the Improvement work and the Improvements and that the Developer will save the City harmless from all such claims, demands, damages, actions or causes of action or the costs, disbursements and expenses of defending the same, except for any such claims, demands, damages, actions or causes of action caused by the misconduct or negligence of the City or someone acting on its behalf. 5. Stakins, Surveying and Inspections Developer must provide all staking and surveying for the Improvements in order to ensure that the completed Improvements conform to the Approved Plans. The City will provide for construction inspections at the Developer's expense. Developer must notify the City Engineer at least 48 hours in advance, not including weekend days or holidays, for inspection service or scheduling of tests to be performed. The following scope of services shall be allowed for site observations by the City Inspector /City Soil Engineer and City Engineer Consultant. Observations will be limited to one City employee or one City Engineer Consultant, but not both simultaneously to observe work scope for conformance to City standards and project documents. However, if a need for consultation on site together with each 4- person from the City and the Consultant or technical expert is required due to nonconformance by the contractor or an unusual site condition, the Developer will compensate for this service. This does not include daily site inspections for erosion control, pre - construction meeting, or weekly site meetings for multiple personnel if required. 6. Final Inspection /Acceptance Upon completion of the Improvements, the City Engineer and representatives of the Developer's contractor and /or engineer will promptly make a final inspection of the Improvements. Before final payment is made to the contractor by the Developer, the City Engineer shall be satisfied that all work is satisfactorily completed in accordance with the approved plans and specifications and all City inspections for the work were performed, and the Developer's engineer shall submit a written statement attesting to the same. The City Engineer will notify the developer in writing of the City's approval of the Improvements and schedule the request for acceptance by the City Council. The final approval and acceptance of the Improvements by the City Council shall constitute final approval and acceptance by the City without further action on the part of any party hereto. 7. Default by Developer In the event of default by the Developer as to any of the Improvement work to be performed hereunder by the Developer, its successors or assigns, the City is granted the right to declare any sums provided by this Agreement due and payable in full, and the City may draw upon any financial guaranty(ies) posted in conformance with this Agreement. In the event the City draws from any financial guaranty(ies) sums that exceed the costs or damages to the City, the City will promptly return such excess amounts to the Developer. Notwithstanding anything to the contrary contained in this Agreement, if the City determines that the Developer is in default of any of the terms of this Agreement, the City shall promptly notify Developer of the default and /or non - compliance ( "Cure Period "). The City agrees to provide the Developer a reasonable and appropriate amount of time for the Developer to correct any noted defaults, based on the measures that will need to be taken by the Developer to correct the default. In the event Developer fails to correct said non - compliance within the designated Cure Period, the City may take any other remedy or action available to the City under the terms of this Agreement. 8. Denial of Permits Breach of any term of this Agreement by the Developer or failure to comply with City ordinances shall be grounds for denial of building or occupancy permits for buildings within the subdivision until such breach is corrected by the Developer. 9. Attorneys' Fees The Developer will pay the City's reasonable attorney's fees to be fixed by the Court in the event a suit or action is brought to enforce the terms of this Agreement, or in the event an action is brought upon a bond or letter of credit furnished by the Developer as provided herein. 10. Assignment The Developer may not transfer or assign any of its obligations under this Agreement without the prior written consent of the City, which shall not be unreasonably withheld, conditioned or delayed. -s - 11, Agreement to Run with Land The Developer agrees to record this Agreement among the land records of Washington County, Minnesota simultaneously with recording of the plat of "The Waters at Michael's Pointe." The provisions of this Agreement shall run with the land and be binding upon the Developer and its successors in interest. Notwithstanding the foregoing, no conveyance of the Property or any part thereof shall relieve the Developer of its liability for full performance of this Agreement unless the City expressly so releases the Developer in writing. 12. Release Upon completion and approval of all Improvements required herein, including completion and acceptance of the Improvements and satisfaction of all of the Developer's obligations under this Agreement, the City agrees to execute an instrument (in form sufficient to remove this Agreement as a further encumbrance against the Property) releasing all. Property from the terms of this Agreement. 13. Severability The provisions of this Agreement are severable, and in the event that any provision of this Agreement is found invalid, the remaining provisions shall remain in full force and effect. 14. Consent The Developer represents and warrants that there are no other persons or entities with interests in the Property. 15. Applicable Law This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. IN WITNESS OF THE ABOVE, the parties have caused this Agreement to be executed on the date and year written above. WolterstorffL.P. CITY OF COTTAGE GROVE: 13y "� — $y David . Wolterstorff Myron Dailey, Mayor Chief Manager a Caron M..Stransky, City Clerk -6- ACKNOWLEDGEMENT FOR CITY STATE OF MINNESOTA ) }ss. COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this day of 2011, by Myron Bailey, Mayor and Caron M.. Stransky, City Clerk of the City of Cottage Grove, a Minnesota municipal corporation, on behalf of the corporation. Notary Public (Notary Seal) ACKNOWLEDGEMENT FOR DEVELOPER STATE OF MINNESOTA ) )ss. COUNTY OF WASHINGTON ) On this wS!' day of_ M .e,/ , 2011, before me, a notary public within and for said County, personally appeared David Wolterstorff. Chief Manager of Wolterstorff L.P., a Minnesota company, on behalf of said corporation, did say that he is respectively the Clue 1vlanager of Wolterstorff L.P., and he did aoknowledge and execute said instrument to be his free aat nd deec�'ot� behalf of said company, j ' Notary l!��. Seal otary Publ ic-Minnosota t'" y Cnmmrsslon Expires Jan ai,?076 THIS DOCUMENT DRAFTED BY: Community Development Department City of Cottage Grove 7516 — W' Street South Cottage Grove, MN 55016 -7- EXHIBIT "A" LEGAL DESCRIPTION OF THE SUBJECT PROPERTY That part of the North 792.21 feet of the Northwest Quarter of the Southwest Quarter of Section 3 and that part of the North 792.21 feet of the Northeast Quarter of the Southeast Quarter of Section 4, all lying westerly of Jamaica Avenue South, all in Township 27 North, Range 21 West, Washington County, Minnesota, subject to Jamaica Avenue. 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