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Amend Subdivision Agreement - Glendalough 5th Addition, City Project #389AGENDA ITEM: Amend Subdivision Agreement- Glendalough 5 Addition, City Project #389 AGENDA SECTION: Consent AGEPEM).# 6 a PREPARED BY: Andrew J Brotzler, P.E City Engineer ATTACHMENTS: Amended Subdivision Agreement, Plat APPROVED BY: RECOMMENDED ACTION: Motion to Approve Amended Subdivision Agreeme�t for Glendalough 5 Addition, City Project #389 and Authorize Necessary Signatures. 4 ROSEMOUNT CITY COUNCIL City Council Meeting August 16, 2005 EXECUTIVE SUMMARY BACKGROUND: The Subdivision Agreement for the Glendalough 5 Addition, City Project #389, is being amended to put a hold on issuance of building permits for six lots located within the Glendalough 5t plat No building pernuts will be issued for Block 2, Lots 16 17 and Block 3, Lots 1 -4 until a storm sewer Eft station and corresponding forcemam are fully installed and functional for the Storm Water Pond Number 1486, in the Comprehensive Storm Water Management Plan for the City of Rosemount, located m Outlot Z or just to the east of the six aforementioned lots Currently, with the phasing for the Glendalough 5` -10 Additions proposed by the Developer, Lundgren Brothers Construction, it is not feasible to install the storm sewer Eft station at this time until a future phase is developed because of lack of electrical hook -up and conflicts with future installation of public utilities The critical event for the storm water pond located in the north central area of the Glendalough 5`" 10t Additions tract of land is a back -to -back 100 -pear storm event This critical event creates a high water elevation of 937 5 The Engineering Department recommends that any house with a proposed low building elevation less than three feet above the cnncal event high water elevation of 937 5 shall not be issued until the lift station and forcemam are installed and operational The six lots have proposed low building elevations less than three feet above the elevation of 937 5 SUMMARY: Staff recommends Council to approve the amended Subdivision Agreement for the Glendalough 5 Addition, City Project #389 and authorize necessary signatures G \ENGPROJ \389 \AmendSubAgrCCS -16A5 doc AMENDED SUBDIVISION AGREEMENT Glendalough 5 Addition AGREEMENT dated day of 2005, by and between the CITY OF ROSEMOUNT, a Minnesota municipal corporation, "City"), and LUNDGREN BROS CONSTRUCTION, (the "Developer This Agreement supersedes and replaces the Subdivision Agreement, Glendalough 5 Addition dated February 15, 2005, between the City of Rosemount and Lundgren Brothers Construction 1. Request for Plat Approval. The Developer has asked the City to approve the subdivision of land and a plat of land to be known as Glendalough 5 Addition, which land is legally descnbed on Attachment One, attached hereto and hereby made a part hereof (hereinafter referred to as the "subject property"). 2 Conditions of Plat Approval. The City has approved the subdivision and the plat on the following conditions. a. Incorporation of recommendations of the City Engineer concerning design and installation of public infrastructure and including grading, erosion control, streets and utilities b Execution of a Subdivision or Development Agreement to secure the public and private improvements c. Payment of all applicable fees including G I S Park Dedication and other fees identified in the current fee schedule d. Incorporation of any easements necessary to accommodate drainage, ponding, trails, conservation areas, streets and utilities e No building permits shall be issued for the following- Block 2, Lots 16 and 17 and Block 3, Lots 1 through 4, until a storm sewer lift station and corresponding forcemam are fully installed and functional for the Stormwater Pond Number 1486 in the Comprehensive Stormwater Management Plan for the City of Rosemount located in Outlot Z. 3. Phased Development. The City may refuse to approve final plats of subsequent additions of the plat if the Developer has breached this Contract and the breach has not been remedied. Development of subsequent phases may not proceed until Subdivision Agreements for such phases are approved by the City 4. Effect of Subdivision Approval. For two (2) years from the date of this Agreement, no amendments to the City's Comprehensive Plan, except an amendment placing the plat in the current urban service area, or official controls shall apply to or affect the use, development density, lot size, lot layout or dedications of the approved plat unless required by state or federal law or agreed to in wntmg by the City and the Developer Thereafter, notwithstanding anything in this Agreement to the contrary, to the full extent permitted by state law the City may require compliance with any amendments to the City's Comprehensive Guide Plan, official controls, platting or dedication requirements enacted after the date of this Agreement. 5. Development Plans. The subject property shall be developed in accordance with the following plans, original copies of which are on file with the City Public Works Director The plans may be prepared, subject to City approval, after entenng this Agreement, but before commencement of any 1 Glendalough 5 Addition Amended 08108/05 work on the Subject Property If the plans vary from the written terms of this Agreement, the written terms shall control The plans are Plan A Plat Plan B Soil Erosion Control Plan and Schedule Plan C Drainage and Storm Water Runoff Plan Plan D Plans and Specifications for Public Improvements Plan E Grading Plan and House Pad Elevations Plan F Street Lights Plan G Landscape Improvements 6. Installation by Developer. The Developer shall install or cause to be installed and pay for the following A Street Lights B. Setting of Lot and Block Monuments C Surveying and Staking of work required to be performed by the Developer. D. Gas, Electric, Telephone, and Cable Lines E Site Grading F. Landscaping (Hereinafter referred to as the "Developer Improvements And other items as necessary to complete the development as stipulated herein or in other agreements 7. Time of Performance. The Developer shall install all required improvements enumerated in Paragraph 6 which will serve the subject property by June 30, 2006 The Developer may, however, request an extension of time from the City If an extension is granted, it shall be conditioned upon updating the secunty posted by the Developer to reflect cost increases and the extended completion date 8. Public Infrastructure The following improvements, known as City Project #389, shall be designed, inspected, surveyed and administered by the City and installed in the Subject Property at Developer expense by a Contractor selected by the City through the public bidding process A Sanitary Sewer B Waterman C. Storm Sewer D Streets E Sidewalks /Pathways (Hereinafter referred to as "Public Infrastructure Improvements The attached figure shows the area within which the Public Infrastructure Improvements will be constructed pursuant to this Paragraph Contracts shall provide for construction in accordance with 2 Glendalough 5 Addition Amended 08/08/05 plans and specifications prepared by the City or its consultants The City will not enter into such contracts until all conditions of plat and subdivision approval have been met, the plat is recorded and the City has received the bonds and security required by this agreement The City will obtain any necessary permits from the Minnesota Pollution Control Agency, Department of Health and all other agencies before proceedmg with construction 9. Deposit for Cost of Public Infrastructure Improvements For the purpose of financing the construction, installation and maintenance of the Public Infrastructure Improvements, Developer shall promptly make payments to the City of sums deemed necessary by the City to make timely payments to its contractor as follows a. Prior to the receipt by the City of bids for the Public Infrastructure Improvements, Developer will pay to the City a cash deposit in the amount of One Hundred Fifty Thousand Dollars ($150,000) to cover one or more penodic payments to the City's contractor Such deposit and later payments to the deposit as provided in this paragraph will be held by the City and used to pay the City's contractor for Public Infrastructure Improvements and no other purpose b From time to time as the City's construction of the Public Infrastructure Improvements proceeds and the amount held in the Developer's deposit is diminished by payments to the City's contractor, the City will give wntten notice specifying an amount due from the Developer to replenish the deposit, as determined by the City to be necessary to cover one or more periodic payments to the City's contractor Payments shall be due no later than five (5) working days after receipt of notice by the Developer c. No interest will be paid or credited to Developer on funds held by the City in the deposit Following final payment for Public Infrastructure Improvements the City will return any unused funds in the deposit to Developer. d. Upon execution of this Agreement, Developer will provide a letter of credit in form satisfactory to the City in the amount of Seven Hundred Thirty Thousand Dollars ($730,000) (which is 110% of the estimated construction costs ($800,000) less the initial deposit), conditioned on the prompt and faithful performance by Developer of its obligations under this paragraph 9. This letter of credit maybe combmed with any other letter of credit given to secure performance under this Agreement provided the form thereof is approved by the City e In the event City does not recover its costs for completing the Public Infrastructure Improvements under the provisions of this paragraph, as an additional remedy, City may, at its option, assess the Subject Property in the manner provided by Minnesota Statutes, Chapter 429, and Developer hereby consents to the levy of such special assessments without notice or heanng and waives its rights to appeal such assessments pursuant to Minnesota Statutes, Section 429 081, provided the amount levied, together with the funds deposited with the City under this paragraph, does not exceed the expenses actually incurred by the City in the completion of the Public Infrastructure Improvements. 3 Glendalough 5th Amended 08/08/05 10. Security for Developer Improvements To guarantee compliance with the terms of this Agreement, payment of the costs of all Developer Improvements and construction of all Developer Improvements (as noted in Paragraph 6), the Developer shall furnish the City with a cash escrow or two (2) individual irrevocable letters of credit from a bank "security for a) $82,500 Landscaping b) $91,850 All Other Improvements which is 110% of the estimated cost of the Developer Improvements The amount of the security was calculated as follows Refer to Exhibit A and B for an explanation of each item 4 Glendalough 5th Amended 08/08/05 Cost 110% Landscaping $75,000 $82,500 Grading Erosion Control $25,000 $27,500 Pond Restoration and Erosion Control Removal $25,000 $27,500 Survey Monumentation $17,500 $19,250 Retaining Walls Street Lighting (4 lights) $16,000 $17,600 Buffer Monumentation Park Equipment /Improvements Wetland Restoration/Mitigation Wetland Monitoring Total $83,500 $91,850 10. Security for Developer Improvements To guarantee compliance with the terms of this Agreement, payment of the costs of all Developer Improvements and construction of all Developer Improvements (as noted in Paragraph 6), the Developer shall furnish the City with a cash escrow or two (2) individual irrevocable letters of credit from a bank "security for a) $82,500 Landscaping b) $91,850 All Other Improvements which is 110% of the estimated cost of the Developer Improvements The amount of the security was calculated as follows Refer to Exhibit A and B for an explanation of each item 4 Glendalough 5th Amended 08/08/05 Cost 110% Landscaping $75,000 $82,500 Total 10. Security for Developer Improvements To guarantee compliance with the terms of this Agreement, payment of the costs of all Developer Improvements and construction of all Developer Improvements (as noted in Paragraph 6), the Developer shall furnish the City with a cash escrow or two (2) individual irrevocable letters of credit from a bank "security for a) $82,500 Landscaping b) $91,850 All Other Improvements which is 110% of the estimated cost of the Developer Improvements The amount of the security was calculated as follows Refer to Exhibit A and B for an explanation of each item 4 Glendalough 5th Amended 08/08/05 The bank and form of the letter of credit or other security shall be subject to the approval of the City Administrator The letter of credit shall be automatically renewable until the City releases the developer from responsibihty The letter of credit shall secure compliance with the terms of this Agreement and all obligations of the Developer under it The City may draw down on the letter of credit without notice if the obligations of the Developer have not been completed as required by this Agreement In the event of a default under this Subdivision Agreement by the Developer, the City shall furnish the Developer with written notice by certified mail of Developers default(s) under the terms of this Subdivision Agreement If the Developer does not remove said default(s) within two (2) weeks of receiving notice, the City may draw on the letter of credit With City approval the letter of credit may be reduced from time to time as financial obligations are paid and developer installed improvements completed to the City's requirements 11. Grading Plan /Site Grading Site grading shall be completed by Contractor Property Developers Company (CPDC) at its cost and approved by the City Public Works Director The completion of grading activities will need to be coordinated by the City in conjunction with the installation of utilities CPDC shall furnish the City Public Works Director satisfactory proof of payment for the site grading work and shall submit a certificate of survey of the development to the City as the site grading is completed by phase, with street and lot grades If the installation of utilities is occurring simultaneously with the grading, the utility contractor shall have preference over the grading activities No substantial grading activities can be completed over installed utilities unless otherwise protected All improvements to the lots and the final grading shall comply with the grading plan as submitted and shall be the responsibility of the Developer 12. License The Developer hereby grants the City, its agents, employees, officers and contractors a license to enter the Subject Property to perform all work and inspections deemed appropriate by the City dunng the installation of Public Infrastructure Improvements 13. Erosion Control Pnor to site grading, and before anyutihty construction is commenced or building permits are issued, the erosion control plan, Plan B, was implemented, inspected and approved by the City All areas disturbed by the excavation and backfilling operations shall be reseeded within 72 hours after the completion of the work in that area Except as otherwise provided in the erosion control plan, seed shall be rye grass or other fast growing seed suitable to the existing soil to provide a temporary ground cover as rapidly as possible All seeded areas shall be mulched and disc anchored as necessary for seed retention All basement and/or foundation excavation spoil piles shall be kept completely off City nght -of -way and shall be completely surrounded with an approved erosion control silt fence Approved erosion control fencing shall be installed around the penmeter of each lot or at City approved locations at the time of building permit issuance and remain in place until the lot is seeded or sodded A 20 -foot opening will be allowed on each lot for construction deliveries. The parties recognize that time is of the essence in controlling erosion If development 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 appropnate to control erosion This nght also applies to the required erosion control for basement and/or foundation excavation spoil piles The City will endeavor to notify the Developer in advance of any proposed action, but failure of the City to do so 5 Glendalough 5th Amended 08/08/05 will not affect the Developer's or City's rights or obligations hereunder If the Developer does not reimburse the City for any cost the City incurred for such work within thirty (30) days, the City may draw down the letter of credit to pay any costs No development will be allowed and no building permits will be issued unless the Subject Property is in full compliance with the erosion control requirements 14. Planting and Seeding Landscaping shall be in accordance with Landscape Plans approved by the City Planner, including additional landscaping per Exhibit C 15. Clean up The Developer shall clean streets of dirt and debns that has resulted from construction work by the Developer, its agents or assigns The City will inspect the site on a weekly basis and determine whether it is necessary to take additional measures to clean dirt and debns from the streets After 48 hours verbal notice to the Developer, the City will complete or contract to complete the clean up at the Developer's expense in accordance with the procedures specified in Paragraph 13. The Developer shall inspect and if necessary clean all catch basins, sumps, and pondmg areas of erosion/siltation and restore to the original condition at the end of home construction within this development All silt fence and other erosion control should be removed following the establishment of turf These items are to be secured through the letter of credit as is noted in Exhibit A 16. Ownership of Improvements. Upon completion and City acceptance of the work and construction required by this Agreement, the public improvements lying within public nghts -of- way and easements shall become City property without further notice or action unless the improvements are slated as private infrastructure 17. Warranty. The Developer warrants all work required to be performed by it against poor matenal and faulty workmanship for a penod of two (2) years after its completion and acceptance by the City All trees, grass and sod shall be warranted to be alive, of good quality and disease free for twelve (12) months after planting 18. Responsibility for Costs. A. Except as otherwise specified herein, the Developer shall pay all cost's incurred by it or the City in conjunction with the development of the Subject Property including, but not limited to, Soil and Water Conservation Distnct charges, legal, planning, engineenng and inspection expenses incurred in connection with approval and acceptance of the subdivision and the plat, the preparation of this Agreement and any amendments hereto, and all costs and expenses incurred by the City in monitonng and inspecting development of the Subject Property B The Developer shall hold the City and its officers and employees harmless from claims made by itself and third parties for damages sustained or costs incurred resulting from plat or subdivision approval and development of the Subject Property The Developer shall indemnify the City and its officers and employees for all costs, damages or expenses which the City may pay or incur in consequence of such claims, including attorney's fees 6 Glendalough 5th Amended 08/08 /05 C. The Developer shall reimburse the City for costs incurred in the preparation and enforcement of this Agreement, including engineering and attorney's fees The estimated City fees of $180,518 less the initial cash deposit of $15,000 for a total of $165,518 shall be deposited with the City at the time this Agreement is signed, and represent the following estimates $121,000 Engineenng Fees (less initial $15,000 cash deposit) 2,500 Attorney Fees 40,000 5% City Fees 480 Street Light Energy Cost 1,538 Seal Coating $165,518 If the City fees exceed this estimate, the Developer shall pay the additional costs to the City within 10 days of the request D. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Agreement within thirty (30) days after receipt If the bills are not paid on time, the City may halt development work and construction including, but not limited to, the issuance of building permits for lots which the Developer may or may not have sold, until the bills are paid in full Bills not paid within thirty (30) days shall accrue interest at the rate of nine percent (9 per year. E The Developer shall pay all energy costs for street lights installed within the Subject Property for 24- months at a cost of $5 /month/light After that, the City will assume the energy costs. F The Developer will pay the cost of sealcoatrng the streets within the development at a cost of $0 60 /SY The sealcoatrng will be completed within two (2) years following wear course placement. 19. Developer agrees to pay fees, charges and assessments set forth in this Section prior to, or at the time of, execution of any plat by the City: A. Park dedication fees in the amount of 0 (Previously Paid) B. Geographic Information System (GIS) fees in the amount of $1,925 C. Storm Sewer Trunk Area Charges in the amount of $128,964. Or such other amounts for such fees as in effect at the time of plat approval 20. Developer understands that builders will be required to pay for the Subject Property the fees, charges and assessments in effect at the time of issuance of building permits The rates for each of these items will be set according to the current rate structure at the time the building permit is received The fees, charges, and assessments m effect as of this agreement are: A. Metropolitan Council Environmental Services Availability Charges per SAC unit (current rate is $1,450) 7 Glendalough 5th Amended 08/08/05 B Storm Sewer Connection Charges per single family unit and per multiple family unit (currently at $670) C Sanitary Sewer Availability Charges per SAC unit (currently at $1,160 /SAC unit). D. Water Availability Charges per SAC unit (currently at $1,410 /SAC unit for single family residential and multi- family residential) E. Sanitary Sewer Trunk Area Charges (currently at $348.34/umt). F Watermam Trunk Area Charges (currently at $1,403 34 /unit) 2L Building Permits No occupancy permits shall be issued until A The site grading is completed and approved by the City B All public utilities are tested, approved by the City Engineer, and in service. C All curbing is installed and backfilled. D The first lift of bituminous is in place and approved by the City. D All building permit fees are paid in full. F. No early building permits will be issued The Developer, in executing this Agreement, assumes all liability and costs for damage or delays, incurred by the City, in the construction of public improvements, caused by the Developer, its employees, contractors, subcontractors, matenaimen or agents No occupancy permits shall be issued until the public streets and utilities referred to in paragraph 6 and 8 are in and approved by the City, unless otherwise authonzed in wntmg by the City Public Works Director 22. 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 is first given notice of the work in default, not less than 48 hours in advance This Agreement 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 When the City does any such work, the City may, in addition to its other remedies, levy the cost in whole or in part as a special assessment against the Subject Property Developer waives its nghts to notice of heanng and heanng on such assessments and its right to appeal such assessments pursuant to Minnesota Statutes, Section 429 081 23. Miscellaneous A The Developer represents to the City that the development of the Subject Property, the subdivision and the plat comply with all city, county, metropolitan, state and federal law s and 8 Glendalough 5th Amended 08/08/05 regulations including, but not limited to subdivision ordinances, zoning ordinances and environmental regulations. If the City determines that the subdivision or the plat or the development of the Subject Property does not comply, the City may, at its option, refuse to allow construction or development work on the Subject Property until the Developer does comply Upon the City's demand, the Developer shall cease work until there is compliance. B. Third parties shall have no recourse against the City under this Agreement C Breach of the terms of this Agreement by the Developer shall be grounds for denial of building permits, including lots sold to third parties. D If any portion, section, subsection, sentence, clause, paragraph or phase of this Agreement is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Agreement E If building permits are issued pnor to the completion and acceptance of public improvements, the Developer assumes all liability and costs resulting in delays in completion ofpublic improvements and damage to public improvements caused by the City, Developer, its contractors, subcontractors, matenalmen, employees, agents or third parties F. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Agreement To be binding, amendments or waivers shall be in writing, signed by the parties and approved by wntten resolution of the City Council The City's failure to promptly take legal action to enforce this Agreement shall not be a waiver or release G. This Agreement shall run with the land and may be recorded against the title to the property. The Developer shall take such steps, including execution of amendments to this Agreement, as are necessary to effect the recording hereof After the Developer has completed the work required of it under this Contract, at the Developer's request, the City will execute and deliver to the Developer a release. H. Each nght, 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 nght, power and remedy herein set forth or otherwise so exciting 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 nght, power or remedy I The Developer may not assign this Agreement without the wntten permission of the City Council. 9 Glendalough 5th Amended 08/08/05 24. 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 registered mail at the following address Lundgren Bros Construction, Inc. 935 E Wayzata Boulevard Wayzata, MN 55391 Notices to the City shall be in wntmg and shall be either hand delivered to the City Administrator, or mailed to the City by registered mail in care of the City Administrator at the following address City Administrator, Rosemount City Hall, 2875 145 Street West, Rosemount, Minnesota 55068 10 Glendalough 5th Amended 08/08/05 IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first above wntten STATE OF MINNESOTA COUNTY OF DAKOTA ss STATE OF MINNESOTA SS COUNTY OF DAKOTA Drafted By: Caty of Rosemount 2875 145th Street West Rosemount, MN 55068 CITY OF ROSEMOUNT BY: BY: BY: BY: William H. Droste, Mayor Linda Jentink, City Clerk Its Its The foregoing instrument was acknowledged before me this day of 2005, by William H Droste, Mayor, and Linda Jentink, City Clerk, of the City of Rosemount, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council Notary Public The foregoing instrument was acknowledged before me this day of 2005 by and a on behalf of the said Notary Public 11 Glendalough 5th Amended 08/08/05 EXHIBIT A The following clanfies the various portions of the letter of credit for Developer Improvements that are outlined in the Subdivision Agreement Grading Erosion Control A restoration and erosion control bond to ensure revegetation and erosion control ($3,500 /acre) Note The minimum bond amount is set at $25,000 Pond Restoration/Erosion Removal A secunty to allow for cleaning of sedimentation ponds prior to City acceptance and removing any installed erosion control measures such as silt fence and woodfiber blanket following development of 75 percent of adjoining lots (estimated Lump Sum) Survey Monumentation An amount equal to 110% of the cost to monument all lots within the development Landscaping An amount equal to 110% of the cost to complete the minimum required landscaping If additional landscaping is planned, a bond for that cost is not required Retaining Walls An amount equal to 110% of the cost to complete the retaining wall construction Street Lighting An amount equal to 110% of the cost to complete the minimum required lighting If additional lighting is planned, a bond for that cost is not required ($4,000 per light has been used to calculate this cost) Buffer Monumentation An amount equal to 110% of the cost to manufacture and install the necessary buffer monumentation signs around all ponds and wetlands ($50 per sign has been used to calculate this cost) Park Equipment An amount equal to 110% of the cost of improvements agreed upon to be completed m the park areas Wetland Monitonng An amount equal to 110% of the cost to hire a wetland specialist to monitor the mitigation areas for 5 years to ensure their proper creation This wetland specialist will be hired by the City Wetland Restoration/Mitigation An amount equal to 110% of the cost to develop new wetlands should the mitigation not be effective ($20,000 per acre of mitigation) 12 Glendalough 5th Amended 08/08/05