Res 2018- 65 Approve Final Plat The Orchard Receipt:#595676 3295828
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SIMPLIFILE
5072 NORTH 300 w Recorded on:3/8/2019 10:51 AM
By:AS,Deputy
PROVO UT 84604 Office of the County Recorder
Dakota County,Minnesota
Amy A.Koethe,County Recorder
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2018-65
RESOLUTION APPROVING FINAL PLAT FOR
THE ORCHARD
1136 AND 1140 ORCHARD PLACE
WHEREAS, Orchard Heights, LLC, (the "Developer") is requesting consideration and
approval of the Final Plat of THE ORCHARD, a new subdivision of properties located at 1136
and 1140 Orchard Place (the"Subject Property"), and legally described in Exhibit A; and
WHEREAS, on June 27, 2017 and July 25, 2017, the Mendota Heights Planning
Commission held a public hearing to consider the applications of a proposed preliminary plat,
variance and wetlands permit of a new subdivision to be titled "Orchard Heights", whereby the
commission offered a motion to recommend approval of the plat, variance and wetlands permit,
but said motion failed and therefore constituted a recommendation of denial; and
WHEREAS, on August 15, 2017,the City Council received the recommendation of denial
from the Planning Commission, and City Council adopted Resolution No. 2018-57, a resolution
denying the preliminary plat, variance and wetlands permit for Orchard Heights, with certain
findings of denial; and
WHEREAS, on December 14, 2017, the case of Royal Oaks Realty, Inc., etal vs. the City
of Mendota Heights came before Dakota County District Court, whereby the Roya Oaks motion
for summary judgment against the City was granted(on March 8, 2018), and the City was ordered
by said Court to"unconditionally approve the Orchard Heights Preliminary Plat under the City's
standard subdivision ordinance, including the variance for the proposed cul-de-sac..."; and
WHEREAS, on April 17, 2018, the City Council adopted Resolution No. 2018-32, a
resolution approving the preliminary plat, variance and wetlands permit for Orchard Heights
subdivision.
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2018-65
RESOLUTION APPROVING FINAL PLAT FOR
THE ORCHARD
1136 AND 1140 ORCHARD PLACE
WHEREAS, Orchard Heights, LLC, (the "Developer") is requesting consideration and
approval of the Final Plat of THE ORCHARD, a new subdivision of properties located at 1136
and 1140 Orchard Place (the "Subject Property"), and legally described in Exhibit A; and
WHEREAS, on June 27, 2017 and July 25, 2017, the Mendota Heights Planning
Commission held a public hearing to consider the applications of a proposed preliminary plat,
variance and wetlands permit of a new subdivision to be titled "Orchard Heights", whereby the
commission offered a motion to recommend approval of the plat, variance and wetlands permit,
but said motion failed and therefore constituted a recommendation of denial; and
WHEREAS, on August 15, 2017, the City Council received the recommendation of denial
from the Planning Commission, and City Council adopted Resolution No. 2018-57, a resolution
denying the preliminary plat, variance and wetlands permit for Orchard Heights, with certain
findings of denial; and
WHEREAS, on December 14, 2017, the case of Royal Oaks Realty, Inc., etal vs. the City
of Mendota Heights came before Dakota County District Court, whereby the Roya Oaks motion
for summary judgment against the City was granted (on March 8, 2018), and the City was ordered
by said Court to "unconditionally approve the Orchard Heights Preliminary Plat under the City's
standard subdivision ordinance, including the variance for the proposed cul-de-sac... "; and
WHEREAS, on April 17, 2018, the City Council adopted Resolution No. 2018-32, a
resolution approving the preliminary plat, variance and wetlands permit for Orchard Heights
subdivision.
NOW THEREFORE BE IT RESOLVED by the Mendota Heights City Council that the
Final Plat of THE ORCHARD (formerly titled "Orchard Heights") as presented herein and a
preliminary copy of which is attached as Exhibit B, is hereby approved, based on the following
findings of fact:
1. The proposed final plat is consistent with the general layout and overall design
illustrated on the original and previously approved preliminary plat.
2. The proposed final plat meets the purpose and intent of the Zoning Code, including
the proposed and approved planned use of the site as new single-family residential
development.
3. The proposed final plat meets the purpose and intent of the Subdivision Code,
including layout, grading, drainage, easements and lot arrangements.
BE IT FURTHER RESOLVED, by the Mendota Heights City Council that the Final Plat
of THE ORCHARD, related to the original plat application made under Planning Case No. 2017-
14, is hereby approved; and the Developers Agreement between Orchard Heights, LLC and the
City of Mendota Heights is also acceptable and approved, and hereby authorizes the Mayor and
City Administrator to execute said developers agreement on behalf of the City.
Adopted by the City Council of the City of Mendota Heights this 4th day of September,
2018.
ATTEST
Lorri Smith, City Clerk
CITY COUNCIL
CITY OF MENDOTA HEIGHTS
Neil Garlock, Mayore4.4-2--u--V)
rYt..DcL)„.4
Res 2018--65 Pg. 2 of 2
EXIIIBIT A
Legal Description —1136 Orchard Place
PID: 27-54150-01-010
Lot 1, Block 1, Olin Addition, Dakota County, Minnesota
AND
Legal Description —1140 Orchard Place
PID: 27-54150-01-020
Lot 2, Block 1, Olin Addition, Dakota County, Minnesota
Res 2018--65 Pg. 2 of 3
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Receipt:# 572088
APPRO $46.00
Return to:
TIM THONE DEVELOPMENT
2242 COTTAGE GROVE
ALCOVE
WOODBURY MN 55129
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2018-65
RESOLUTION APPROVING FINAL PLAT FOR
THE ORCHARD
1136 AND 1140 ORCHARD PLACE
3270317
I 1111111 1111 111111
Recorded on: 9/73/2018 10:13 AM
By: TM, Deputy
Office of the County Recorder
Dakota County, Minnesota
Joel T. Beckman, County Recorder
WHEREAS, Orchard Heights, LLC, (the "Developer") is requesting consideration and
approval of the Final Plat of THE ORCHARD, a new subdivision of properties located at 1136
and 1140 Orchard Place (the "Subject Property"), and Iegaily described in Exhibit A; and
WHEREAS, on June 27, 2017 and July 25, 2017, the Mendota Heights Planning
Commission held a public hearing to consider the applications of a proposed preliminary plat,
variance and wetlands permit of a new subdivision to be titled "Orchard Heights", whereby the
commission offered a motion to recommend approval of the plat, variance and wetlands permit,
but said motion failed and therefore constituted a recommendation of denial; and
WHEREAS, on August 15, 2017, the City Council received the recommendation of denial
from the Planning Commission, and City Council adopted Resolution No. 2018-57, a resolution
denying the preliminary plat, variance and wetlands permit for Orchard Heights, with certain
findings of denial; and
WHEREAS, on December 14, 2017, the case of Royal Oaks Realty, Inc., etal vs. the City
of Mendota Heights came before Dakota County District Court, whereby the Roya Oaks motion
for summary judgment against the City was granted (on March 8, 2018), and the City was ordered
by said Court to `unconditionally approve the Orchard Heights Preliminary Plat under the City's
standard subdivision ordinance, including the variance for the proposed cul-de-sac...' ; and
WHEREAS, on April 17, 2018, the City Council adopted Resolution No. 2018-32, a
resolution approving the preliminary plat, variance and wetlands permit for Orchard Heights
subdivision.
NOW THEREFORE BE IT RESOLVED by the Mendota Heights City Council that the
Final Plat of THE ORCHARD (formerly titled "Orchard Heights") as presented herein and a
preliminary copy of which is attached as Exhibit B, is hereby approved, based on the following
findings of fact:
1. The proposed final plat is consistent with the general layout and overall design
illustrated on the original and previously approved preliminary plat.
2. The proposed final plat meets the purpose and intent of the Zoning Code, including
the proposed and approved planned use of the site as new single-family residential
development.
3. The proposed final plat meets the purpose and intent of the Subdivision Code,
including layout, grading, drainage, easements and lot arrangements.
BE IT FURTHER RESOLVED, by the Mendota Heights City Council that the Final Plat
of THE ORCHARD, related to the original plat application made under Planning Case No. 2017-
14, is hereby approved; and the Developers Agreement between Orchard Heights, LLC and the
City of Mendota Heights is also acceptable and approved, and hereby authorizes the Mayor and
City Administrator to execute said developers agreement on behalf of the City.
2018.
Adopted by the City Council of the City of Mendota Heights this 4th day of September,
CITY COUNCIL
CITY OF MENDOTA HEIGHTS
Neil Garlock, Mayor
ATTEST.
Lorri Smith, City Clerk
Drafted by: City of Mendota Heights
1101 Victoria Curve
Mendota Heights, MN 55118
Res 2018--65
Pg. 2 of?
EXHIBIT A
Legal Description —1136 Orchard Place
PID: 27-54150-01-010
Lot 1, Block 1, Olin Addition, Dakota County, Minnesota
AND
Legal Description -- 1140 Orchard Place
PID: 27-54150-01-020
Lot 2, Block 1, Olin Addition, Dakota County, Minnesota
Res 2018--65
Pg. 2 of 3
EXHIBIT B
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Res 2018-65
Pg. 2 of 4
STATE OF MINNESOTA }
COUNTY OF DAKOTA ) s.s.
CITY OF MENDOTA HEIGHTS }
1, Lorri Smith, being the duly appointed City Clerk of the City of Mendota Heights, do hereby certify
that the attached Resolution 2018- 65 Approving Final Plat for The Orchard, 1136 and 1140
Orchard Place is an exact copy of said resolution on file in my office adopted by the Mendota
Heights City Council on September 4, 2018.
Signed and sealed by my hand on this I2th day of Septe er, 2018
1
Lorri Smith
City Clerk
Receipt:# 572088
AGREE $46.00
Return to:
TIM THONE DEVELOPMENT
2242 COTTAGE GROVE
ALCOVE
WOODBURY MN 55129
3270318
J/IIIIIIIflhlII/IIIIihI/IIy/I/jjii/iiiijiij
Recorded on: 9113!201810:13 AM
By: TMB, Deputy
Office of the County Recorder
Dakota County, Minnesota
Joe! 11 Beckman, County Recorder
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
DEVELOPERS AGREEMENT
THE ORCHARD SUBDIVISION
'' II THIS DEVELOPER'S AGREEMENT (The Orchard Subdivision), is made and entered into this
'7' day of (Sy,,L v.--- 2018, by and between the City of Mendota Heights, Minnesota, a
municipal corporation and political subdivision under the laws of the State of Minnesota, having its
principal office at 1101 Victoria Curve, Mendota Heights, Minnesota 55118-4167 (the "City") and Orchard
Heights, LLC, a Minnesota limited liability company, its successors and assigns as permitted herein, having
its principal office at 2242 Cottage Grove Alcove, Woodbury, MN 55129 (the "Developer").
WITNESSETH:
WHEREAS, the subject property consists of approximately 13.45 acres in area; and is generally
located in the mid -central area of the City lying west of Lexington Avenue, east of Hunter Lane and directly
south of Orchard Place, addressed as 1136 and 1140 Orchard Place, and is legally described on Exhibit A
attached hereto and made a part hereof (the "Property"); and
WHEREAS, the Property is guided as "LR Low -Density Residential" in the City's current 2030
Comprehensive Plan and is zoned R-1 One Family Residential; and
WHEREAS, on April 17, 2018, the City Council of the City granted approval of the Preliminary Final
Plat of Orchard Heights (the "Development"), which is the planned re -subdivision of the Property described
herein, by adopting Resolution No. 2018-32, which is attached as Exhibit B and is made a part of this
Agreement (the "Resolution"); and
WHEREAS, the Resolution also approved a variance for a cul-de-sac and a wetlands permit in the
Development; and
WHEREAS, the Developer has prepared and intends to record a final plat of the new subdivision
consisting of eighteen (18) new single—family dwelling lots (the "Project"), to be platted and known as
"The Orchard" (the "Final Plat") attached hereto as Exhibit C; and
WHEREAS, the Developer shall prepare and submit for approval to the City the final grading and
drainage plans, which shall include any and all related specifications, drawings and related documents with
respect to all Infrastructure Improvements (herein defined) as contained in the final Grading and Drainage
Plans (the "Final Plans"), approved by the Public Works Director, and which plans were also considered
and approved by City Council under a general grading permit approval on June 5, 2018, and which are
attached hereto as Exhibit D.
NOW, THEREFORE, in consideration of the premises and of the mutual promises and conditions
hereinafter contained, it is hereby agreed as follows:
SECTION 1 - Representations and Warranties
1. Representations by the City. The City represents, warrants, and covenants to the following:
a) The City is a municipal corporation and political subdivision duly organized and existing
under the laws of the State of Minnesota. The City is authorized and has the requisite
power to enter into this Agreement and perform its obligations hereunder.
b) The City shall use reasonable efforts to cooperate and work with the Developer in
connection with:
i. further applications, agreements, amendments and approvals relating to, among other
things, site plan, planned unit developments, subdivision, utility and other
development matters to permit the development of the Property in accordance with
this Agreement and the Final Plans;
ii. any requirements of local, state or federal governments or agencies thereof relating
to the development of the Project; and
iii. coordinating the sequencing, commencement and completion of the Infrastructure
Improvements.
2. Representations, Covenants and Warranties by the Developer. The Developer represents,
warrants, and covenants to the following:
a) The Developer is a duly and legally formed Minnesota limited liability company, and is
not in violation of any the laws of local, state or federal government, and has all necessary
power and authority to enter into this Agreement and to carry out its obligations hereunder.
b) All Infrastructure Improvements to be installed by the Developer will be constructed,
operated and maintained (to the extent retained by it) in accordance with the terms of this
Agreement, the Final Plans and all local, state and federal laws and regulations (including,
but not limited to, environmental, zoning, building code, energy conservation, and public
health laws and regulations).
c) The Developer has received no notice or communication from any local, state or federal
official that the activities of the Developer in the Property may be in violation of any known
state or federal environmental laws. The Developer has no knowledge of any facts, the
existence of which would cause it or any of its projects to be in violation of any
environmental laws, or which would give any person a valid claim under any such
environmental laws.
Page 2 of 18
d) The Developer shall use its reasonable efforts to pursue and obtain, in a diligent and timely
manner, all required permits, licenses and approvals, and will seek to meet, in a timely
manner, all requirements of all applicable local, state and federal laws and regulations
which must be obtained or met before the Infrastructure Improvements may be lawfully
constructed.
e) Neither the execution nor the delivery of this Agreement by the Developer, nor the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement is prevented, materially
limited by, or materially conflicts with or results in a material breach of the terms,
conditions or provisions of any restriction or any evidences of indebtedness, agreement or
instrument of whatever nature to which the Developer is now a party or by which it is
bound, or constitutes a default under any of the foregoing.
f) The Developer shall cooperate and use its reasonable efforts with the City, in a reasonable,
timely and diligent manner, in connection with (a) applications, agreements, amendments
and approvals relating to, among other things, site plan, planned unit developments,
subdivision, utility installation, submittal for approval of Final Plans and other
development matters to permit the development of the Property in accordance with this
Agreement and the Final Plans, (b) any requirements of local, state or federal governments
or agencies thereof relating to the development of the Project, and (c) coordinating the
sequencing, commencement and completion of the Infrastructure Improvements.
SECTION 2 - Infrastructure Improvements
1. Final Plans. The Developer will install and construct at its sole expense the following improvements,
according to and as shown on the Final Plans, which shall include or provide for at a minimum,
specifications for the following, which collectively upon approval as provided for herein shall be
known as the "Infrastructure Improvements," and per the following terms and conditions:
(a) Grading and compacting of the Property as necessary for the installation of Infrastructure
Improvements set forth herein and as shown on a specific Final Plans for the Property;
(b) Installation of the public roadway system, tentatively identified on the Final Plat as Orchard
Heights Lane (the "Public Road") in compliance with all City requirements; plus all of the
foIIowing when located within the Public Road: curbs, gutters, fire hydrants, and related
fire safety items meeting the state fire code, public street signs, non-mechanical traffic
controls, landscaping, trees, ground cover or plantings;
Installation of necessary utilities within the Public Road including without limitation: 1)
electric, 2) telephone, 3) natural gas, 4) water, 5) sanitary sewer, 6) cable, and 7) storm
sewer;
(e)
(d) All landscaping and erosion control measures necessary for the Development as shown on
the Erosion Control Plan and the Storm Water Pollution Prevention Plan (the "SWPPP")
as contained in the Final Plans;
(e)
St. Paul Regional Water Services. Installation of water mains shall be in accordance with
the Final Plans and shall conform with the St. Paul Regional Water Services (the "RWS")
specifications; and
Page 3 of 18
(f)
Sanitary Sewer and Water Easements. All easements and public right-of-ways shall be
dedicated to the City, as shown on the Final Plat, for all sanitary sewer and water utilities.
2. Developer Requirements. The Developer shall be financially responsible for the completion of
the Infrastructure Improvements in compliance with the Final Plans. Additionally, the Developer
shall be solely responsible for completion of the following:
a) Demolition. Demolition and removal of all existing structures, foundations, un -useable
septic systems, utilities and un -useable driveways or roadways.
b) Access During Development. During the period from commencement of construction of
any single-family residential unit until the final sale of all of the single-family residential
units by the Developer, the Developer shall install and maintain an access road serving
each single-family residential unit under construction that satisfies the following
requirements: presence of alI-weather gravel base, with a gravel or pavement surface that
accommodates City inspection vehicles and emergency vehicles; a looped access road,
which may utilize a reasonable combination of portions of the Public Road, the private
streets and the paved drives currently existing on the Property, and which loop may be
reconfigured from time to time as phases advance but shall be accessible to City emergency
vehicles at all times; the provision of reasonable and customary snowplowing of such
access road; the Location of such access road may not be more than 200 feet from each of
the single-family residential units under construction.
c) Erosion Control. Prior to initiating any Infrastructure Improvements or site grading, the
erosion control measures depicted on the Final Plans, the Erosion Control Plan, and the
SWPPP shall be implemented by the Developer and inspected and approved in writing by
the City. The City may, in its sole discretion, impose at no cost to the City, reasonable,
additional erosion control requirements on the Developer if the City determines that such
additional measures are necessary to meet the erosion control requirements as described in
the Final Plans. All areas disturbed by grading shall be reasonably reseeded in a timely
fashion to meet the erosion control requirements as described in the Final Plans. All
seeded areas shall be mulched, and disc anchored as necessary for seed retention. If the
Developer does not comply with the Erosion Control Plan and the SWPPP or
supplementary conditions imposed by the City, the City may take such reasonable action
as is necessary to control erosion. The City will notify the Developer in advance of any
proposed action. The Developer shall be solely responsible for any costs properly incurred
by the City for erosion control measures. If the Developer does not reimburse the City for
any cost the City properly incurred for such work within thirty (30) days of invoice, the
City shall be allowed to recover its cost by execution securities contained in the Escrow
Agreement (hereafter defined). No Infrastructure Improvement or paving construction will
be allowed unless the Project is in compliance with the erosion control requirements.
d) Storm Sewer Maintenance. The Developer shall be responsible for maintenance of the
storm water ponds shown on the Final Plans during the construction of the Project. The
Developer shall provide the City with an inspection report and as -built grading plan
verifying the ponds are constructed and operating in accordance with the Final Plans.
Subsequent maintenance, as required by any federal, state or local governmental entity or
regulation shall be provided by the City.
Page 4 of 18
e) Easement and Right -of -Way Dedications. The Final Plat recorded in Dakota County for
the Project shalll include, at no cost to the City, any and all required utility, drainage, public
and access easements as identified on the Final Plat and within this Agreement.
f) Plantings in Easement Areas. Any plantings or landscaping in the aforementioned
easements or rights-of-way shall be as provided in the Final PIans and any new landscape
plan submitted for each new single-family building lot.
Utility Locations. Delivery of an as -built survey of all utilities that fall with the
aforementioned easements or right-of-ways to the City based on the Dakota County
coordinate system and within two (2) feet of the horizontal, including:
i, Top nut of hydrants, catch basin and manhole rims and inverts,
ii. Sanitary sewers at the wye, property line and where it enters the single-family
residential unit or other structure,
g)
iii. Water services at the corporation stop, curb box and where it enters the single-family
residential unit or other structure,
iv. Flared end sections,
v. Drain tile within the right-of-way, and
vi. Any other information or utility work necessary, as determined by the Minnesota
Office of Pipeline Safety, necessary for the City to conform to the requirements of
Minnesota Administrative Rule 7560.
h. Park Dedication Fee. Pursuant to the provisions of the City Code, Section 11--5-1 and this
Agreement, the Developer shall pay to the City a Park Dedication Fee of Sixty -Four
Thousand and No/100 Dollars ($64,000.00) prior to the City signing the Final Plat.
Pre -Construction Meeting. The Developer agrees to hold one or more pre -construction
meetings prior to the initiation of the Infrastructure Improvements, which meetings shall
include the Developer, its engineers and contractors, the Public Works Director and other
City staff, Dakota County, MnDOT (if necessary), RWS representatives, and
representatives from all other private utility providers serving the Development.
Quality of Work. The Developer agrees that all the Infrastructure Improvements, including
all labor, materials and supplies, shall be done and performed in a good and workmanlike
manner and in confoimance with the Final Plans as approved by the City, and on file with
the City Clerk.
k. Engineering and Location Services. The Developer shall furnish all engineering services
for the Infrastructure Improvements, including:
i. Preparation of complete plans and specifications by a professional engineer;
ii. Geotechnical testing for design and during construction of the Infrastructure
Improvements;
Page 5 of 18
iii. Determination, by a professional excavator or land surveyor, of the precise location
of underground utility facilities, without damage, prior to excavating within two feet
on either side of the marked location of said facilities; and
iv. Unless the Public Works Director makes a written determination that technology is
not currently available, installation of a locating wire that effectively marks the
location of each nonconductive underground facility installed after December 31,
2005 within a public right-of-way.
Hours of Operation. Developer will not permit any grading, construction, mobilization,
equipment maintenance, fueling or other physical work to be conducted on the site outside
of the specified working hours of 7:00 a.m. to 7:00 p.m. Monday through Friday, 9:00 a.m.
to 5:00 p.m. on Saturday. Permission from the Mendota Heights City Council is required
for work on Sundays or Holidays.
in. Staking and Inspection. It is further agreed that the Developer shall provide any staking or
surveying services as required by the Public Works Director. The Developer agrees to
reimburse the City, within thirty (30) days of a written request, for the cost of the City to
provide a City inspector for any required or requested inspection of any Infrastructure
Improvements in order to assure that the completed Infrastructure Improvements conform
to the Final Plans. The City and RWS will provide for general and final inspection and
shall be notified of all tests to be performed. The Developer shall use reasonable efforts to
coordinate its inspector, the City Inspector and RWS inspectors' inspections at various
times to check the condition of water stop boxes and other utility extensions.
n. Emergency Access. Prior to the sale of all single-family residential units, the Developer
shall provide and maintain emergency access to the Development at all times.
o. Building Permits. As part of the building permit application process, the City shall promptly
review plans prepared by the Developer and/or its contractors, and shall use good faith efforts
to review the plans and approve or disapprove within twenty-one (21) business days. The
City's approval of the plans shall not be unreasonably withheld and the Developer will
promptly reply to requests for additional information or clarification on items requested by the
City in order to ensure an efficient review process. The plans for the Infrastructure
Improvements shall be consistent with standard City practices. if the plans vary from the
written terms of this Agreement, the written terms of the plans approved by the City shall
control.
P. Certificate of Occupancy. No Certificate of Occupancy for any new single-family
residential unit shall be issued by the City unless and until all Infrastructure Improvements
serving the Project and all residential units have been installed, inspected and accepted by
the City and by RWS and are available for use, and to the reasonable satisfaction of the
City and so long as no Event of Default exists under this Agreement, remains uncured by
the Developer. Furthermore, the Developer shall maintain reasonable access to any
occupied units, including necessary street maintenance such as grading and graveling and
snow removal prior to permanent street surfacing of the Public Road.
q.
Final Inspection. Upon completion of all Infrastructure Improvements except the final
paving lift to the Public Road, and written notice from the Developer to the Public Works
Director, the Public Works Director or a designated representative, a representative of the
Developer, its contractor, and its engineer will make a final inspection of the Infrastructure
Page 6 of 18
Improvements. Before final payment is made to any contractor responsible for the
Infrastructure Improvements by the Developer, the Public Works Director shall give the
Developer written notice that the Public Works Director is satisfied that all Infrastructure
Improvements except the final paving lift were satisfactorily completed in accordance with
the approved Final Plans, as indicated in writing by the Public Works Director, and the
Developer shall submit to the City a written statement attesting to the same along with a
certificate, attested to by a Registered Land Surveyor, that all property corners and survey
control points have been properly installed. Upon completion of the Infrastructure
Improvements except the final paving lift to the Public Road, the Developer shall cause to
be provided to the Public Works Director an electronic copy of the Final Plans and the as -
built survey, both in a form acceptable to the Public Works Director. Such electronic
copies of Final Plans shall include survey control points. These electronic Final Plans shall
also include the locations, elevations and ties to all sanitary sewer and water main services.
The Developer shall remain obligated at its expense to complete the final paving lift as
weather permits.
SECTION 3 — Financial Commitments and Warranties
1. Escrow Agreement. To guarantee compliance with the terms of this Agreement, the Developer
has agreed to provide a separate Escrow Agreement (the "Escrow Agreement"), dated as of the date
hereof, among the Developer, the City and a specified title services company (the "Title Company")
to pay for and disburse funds for the payment of completed an accepted Infrastructure Improvement
work as part of the Development. The Developer shall furnish the City with a signed Escrow
Agreement, specifying a deposit of money and securities in an amount equal to 125% of the cost
of the Infrastructure Improvements. The amount of the Escrow Agreement shall be as determined
by the Developer's engineer's estimate, as further described in the Escrow Agreement. The amount
of the Escrow Agreement shall be $500,000.00. The Title Company shall be subject to the approval
of the City; shall be authorized to do business in the State of Minnesota, and with a principal branch
located within the seven -county Twin Cities Metropolitan Area. The Escrow Agreement shall
remain in full force and effect until the Development has been completed or this Agreement has
been terminated.
2. No Warranty; Changes to Infrastructure Improvements. Approval of the Final Plans, any
portion thereof or any changes thereto by the City is not intended, nor shall it be construed to be a
warranty or representation by the City as to: (i) the compliance of the Project with any federal,
state, or local statutes, regulations, or ordinances; (ii) the structural soundness of the proposed
Project; (iii) quality of materials; (iv) workmanship; or (v) the fitness of the Infrastructure
Improvements for their proposed uses.
a) The Developer shall submit to the Public Works Director for approval any changes in the
Final PIans. The City shall approve changes in the Final Plans in writing if, in the
reasonable judgment of the City the changed Final Plans: (i) conform to the terms and
conditions of this Agreement; (ii) conform to the specifications established by the City or
Public Works Director; (iii) conform to all applicable local laws, ordinances, rules and
regulations; and (iv) the construction sequencing is such that the City will be able to comply
with its obligations set forth herein. No approval by the City of changes to the Final Plans
shall relieve the Developer of the obligation to comply with the terms of this Agreement.
Any rej ection of any change requested shall set forth the reasons therefor.
b) For any changes in the Infrastructure Improvements, said improvements shall not be
constructed until the City has issued a written approval of any such requested change to
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the Final Plans_
c) The City may choose to waive this procedure in the future as to any change, however, no
such waiver shall be construed as a waiver of the City's rights pursuant to this Agreement
or this section with respect to further changes subsequent to any such waiver.
3. City Expenses. The Developer agrees to reimburse the City for reasonable costs, fees, charges or
expenses of the City, related to legal costs, (not related to fees incurred in past litigation between
the parties), planning, and engineering services, including without limitation inspection, surveying,
supervision and administration costs and fees (collectively, the "City Expenses") within thirty (30)
days of a receipt of a detailed invoice from the City. If such payments are not received by the City
within said thirty (30) clays, all approvals of the City and the Public Works Director detailed in this
Agreement shall be suspended and have no effect until such time as the Developer has paid the
City for all City Expenses. Such lack of payment shall also constitute an Event of Default as
described in Section 5 of this Agreement.
4. Warranty. The Developer warrants all Infrastructure Improvements required to be constructed by
it pursuant to this Agreement against poor material and faulty workmanship for a period of two
years commencing upon the installation of bituminous base, curb and gutter (the "Warranty
Period"). The Warranty Escrow may be used by the City to pay for warranty work within the
above -referenced warranty time periods, provided that the City first provides Developer thirty (30)
days written notice of a warranty claim under this Article 4. The City standard specifications for
utilities and street construction identify the procedures for final acceptance of streets and utilities
and are set out in the Public Works Design Manual.
5. Ci 's Right to Complete Improvements. The Developer is not required by this Agreement to
commence any Infrastructure Improvements, and the Developer may suspend or terminate its work
at any time; provided that all Infrastructure Improvements that have been commenced shall be
completed in a manner complying with applicable legal requirements and provided further that
upon final inspection the Developer shall be required to complete the final paving lift on the Public
Road in accordance with this Agreement. If the Developer fails to diligently prosecute in a timely
manner completion of any Infrastructure Improvements that have been commenced, in compliance
with and pursuant to the Final Plans, and fails to resume diligent prosecution of the same within
thirty (30) days after receipt of notice of failure to diligently prosecute from the City, the City shall
be free to exercise its option to complete any of the Infrastructure Improvements required of the
Developer. The Developer agrees to be and shall be financially responsible for payment to the City
for correction of the non -conforming or abandoned work within thirty (30) days of formal billing
by the City. If the City has not been paid within 30 days of billing for this work, City may obtain
reimbursement through execution on securities contained in the Escrow Agreement, as further
described in this Agreement.
6. Infrastructure Improvement Acceptance by the City. Following acceptance of the Infrastructure
Improvements by the City and Public Works Director as described in this Agreement, the City
shall, in conjunction with other public entities as necessary, including but not limited to RWS, be
responsible to maintain and repair all Infrastructure Improvements located in the public easements
and rights-of-way of the Development. Notwithstanding the foregoing, and regardless of when the
Infrastructure Improvements are actually accepted by the City, the Developer is responsible to
complete the final paving lift of the Public Road.
7. Maintenance Prior to City Acceptance. Until acceptance by the City of the Infrastructure
Improvements, the Developer shall be solely responsible for all maintenance and repair of the
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Infrastructure Improvements. Prior to acceptance of the Infrastructure Improvements by the City,
the Developer shall cause warning signs and established detour routes to be placed on and around
such streets and other improvements whenever any dangerous or hazardous condition exists on the
Property, as necessary, to prevent public travel on and over such property. If and when streets
become impassable, such streets shall be barricaded and closed. Streets within the Development
may not otherwise be closed without the written approval of the Public Works Director. The
Developer shall be responsible for keeping paved streets within the Development swept clean of
dirt and debris that may spill or wash onto the street from this operation and shall conduct any
additional sweeping as reasonably requested by the City, at the Developer's cost.
SECTION 4 - Indemnification, Release and Insurance
1. Indemnity. The Developer, the Developer's contractors or subcontractors, materialmen, and
laborers, release and waive any claims of liability or responsibility in any way against the City, the
City Council, and its agents, consultants or employees, arising out of the performance and
completion of the Project provided for herein, except for any (1) breach by the City of its obligations
hereunder and (ii) negligence or intentional misconduct of the City. Additionally, the Developer
will unconditionally indemnify and hold the City harmless from all such claims, demands,
damages, actions or causes of actions or the cost of disbursement, and expenses of defending the
same, specifically including, without intending to limit the categories of said costs, costs and
expenses for City administrative time and labor, costs of consulting engineering services and costs
of legal services rendered in connection with defending such claims as may be brought against the
City.
2. Release and Waiver. The Developer agrees to rely entirely upon its own property insurance for
coverage with respect to any damage, loss or injury to the property interests of the Developer in the
Project or interests which may be exposed to damage, loss or injury in connection therewith. The
Developer hereby releases the City, its officers, employees, agents, and others acting on its behalf
from all liability or responsibility to the Developer, and to anyone claiming through or under the
Developer, by way of subrogation or otherwise, for any loss of or damage to the Developer's
business or property caused by fire or other peril or event to the extent that such fire or other peril
or event was covered by any type of real or personal property insurance, including any indirect
property insurance (such as business interruption coverage) in effect on the date of the loss, even if
such fire or other peril or event was caused in whole or in part by the negligence or other act or
omission of the City or other party who is to be released by the terms hereof; or by anyone for
whom such party may be responsible.
3. Insurance. Except as is specifically provided to the contrary in the following provisions of this
Section, the Developer agrees to provide and maintain at all times the insurance coverage set forth
in this Section, and to otherwise comply with the provisions that follow.
a) Builders' Risk. Builders' Risk Insurance, written on a Completed Value coverage form
(non -reporting), in an amount equal to one hundred percent (100%) of the insurable value
of the Infrastructure Improvements at the date of completion. Such coverage shall become
effective concurrent with the beginning of the process of construction, and shall continue
until replaced by the permanent all risk Property Insurance described below. Coverage
shall be provided on an "all risk" basis.
b) Workers' Compensation. Workers' Compensation insurance in compliance with all
applicable statutes. Such policy shall include Employer's Liability coverage in at least
Page 9 of 18
such amount(s) as are customarily provided in workers' compensation policies issued in
Minnesota.
c) General Liability. Occurrence -Based Commercial General Liability insurance, providing
coverage on an "occurrence", rather than on a "claims made" basis, which policy shall
include coverage for the Completed Operations Hazard, and which shall also include a
Broad Forrn General Liability Endorsement GL 0404 (Insurance Services Office form
designation), or an equivalent form (or forms), so long as such equivalent form (or forms)
affords coverage which is in all material respects at least as broad.
The Developer agrees to maintain total liability policy limits of at least $2,000,000,
applying to liability for Bodily Injury, Personal Injury, and Property Damage, which total
limits may be satisfied by the Iimits afforded under its Occurrence -Based Commercial
General Liability Policy (which Policy is to include the Broad Form Endorsement coverage
specified above), or by such Policy in combination with the Limits afforded by an Umbrella
Liability Policy (or policies); provided, however, that the coverage afforded under any such
Umbrella Liability Policy shall be at least as broad as that afforded by the underlying
Occurrence -Based Commercial General Liability Policy (including Broad Form coverage).
Such Occurrence -Based Commercial General Liability Policy and Umbrella Liability
Policy (or policies) may provide aggregate limits for some or all of the coverages afforded
thereunder, so long as such aggregate limits have not, as of the date of the Developer's
possession of the Property, been reduced to less than the total required limits stated above,
and further, that the Umbrella Liability Policy provides coverage from the point that such
aggregate limits in the underlying Occurrence -Based Commercial General Liability Policy
become reduced or exhausted. An Umbrella Policy which "drops down" to respond
immediately over reduced underlying limits, or in place of exhausted underlying limits, but
subject to a deductible amount, shall be acceptable in this regard so long as such deductible
amount does not cause the Developer's total deductible for each occurrence to exceed the
amount shown in the provision immediately below.
All such policies described in this Section shall also name the City as an additional insured
and permit waiver of claims in favor of the City. Copies of all policy certificates must be
provided to the City.
d) Property Insurance. All risk property insurance in an amount not less than the full insurable
replacement value of the Infrastructure Improvements. The term "full insurable
replacement value" shall mean the actual replacement cost of the Infrastructure
Improvements (excluding foundation and excavation costs and costs of underground flues,
pipes, drains, and other items customarily omitted from replacement cost valuation for
insurance purposes), without deduction for depreciation.
e) Insurers. All policies of insurance required under this Agreement shall be maintained with
financially sound and reputable insurers licensed to do business in the State of Minnesota
and as reasonably acceptable to the City. All policies of insurance required under this
Agreement shall be in form and content, and in all other respects reasonably satisfactory to
the City.
t) Non -Imputation. All covenants, stipulations, promises, agreements and obligations of the
City or the City contained herein shall be deemed to be the covenants, stipulations,
Page 10 of 18
promises, agreements and obligations of the City and not of any governing body member,
officer, agent, consultant or employee of the City, in their individual capacity.
SECTION 5 - Events of Default
1. Defined. The term "Event of Default" shall mean any failure by the Developer or the City to
observe or perform any covenant, condition, obligation or agreement on its part to be observed or
performed under this Agreement
2. Remedies. Whenever any party becomes aware of the occurrence of an Event of Default, the non -
defaulting party may, after providing twenty (20) days' written notice to the defaulting party of the
Event of Default, but only if the Event of Default has not been cured within said twenty (20) days
or, if the Event of Default is by its nature incurable within twenty days and the defaulting party
does not provide assurances reasonably satisfactory to the non -defaulting party that the Event of
Default will be cured as soon as reasonably possible, take whatever other action permitted by law,
including the termination of this Agreement and any other legal, equitable or administrative action,
which may appear necessary or desirable to cure any such Event of Default or to enforce
performance and observance of any obligation, agreement, or covenant under this Agreement.
3. No Remedy Exclusive. No remedy herein conferred upon or reserved to either party is intended
to be exclusive of any other available remedy or remedies. Each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Agreement or now or
hereafter existing at Iaw or in equity or by statute. No delay or omission to exercise any remedy or
power accruing upon any Event of Default shall impair any such remedy or power or shall be
construed to be a waiver thereof. Any such remedy and power may be exercised from time to time
and as often as may be deemed expedient. In order to entitle either party to exercise any remedy
reserved to it, it shall not be necessary to give notice, other than such notice as may be required in
this Section.
4. No Additional Waiver Implied by One Waiver. In the event any Event of Default is waived by
the non -defaulting party, such waiver shall be limited to the particular Event of Default so waived
and shall not be deemed to waive any other concurrent, previous or subsequent Event of Default
hereunder.
SECTION 6 - Expiration or Termination of Agreement
1. Automatic Expiration. This Agreement shall automatically expire upon:
a) Completion of the Infrastructure Improvements in accordance with the Final Plans; and
b) Acceptance of the Infrastructure Improvements by the City (not including the final paving
lift of the Public Road by the Developer).
In the case of any single-family housing unit sold to a third party that is not an affiliate of the
Developer, such unit shall be automatically released from this Agreement upon such sale so long
as a final Certificate of Occupancy for such unit has been issued by the City.
2. Option to Terminate. Except as otherwise provided herein, the City or the Developer may
terminate this Agreement if there occurs an Event of Default pursuant to this Agreement that is not
cured within the applicable cure period.
Page 11 of 18
3. Effect of Termination. Following the termination or expiration of this Agreement, this Agreement
shall be null and void and of no effect.
4. Evidence of Termination. If requested by the Developer, the City will provide the Developer with
a certification recordable among the public land records certifying that this Agreement has been
terminated or has expired and, if true, that the Developer was not in default of its obligations
hereunder at the time of such termination or expiration.
[The remainder of this page is intentionally left blank.]
Page 12 of 18
IN WITNESS WHEREOF, the City and the Developer have caused this Agreement to be duly
executed on the date and year first above written.
ORCHARD HEIGHTS, LLC
qk Clot.A5Loid
By:
Its: ¢J
Date: Sp [20vv
STATE OF MINNESOTA )
) ss.
COUNTY OrDe( )
Th foregoing i trument was acknowledged before me this , day of J- -2� 1. , 2018, by
--( rh fig, n-ez-_, the Chief Manager of Orchard Heights, LLC a Minnesota limited
liability company, on behalf of such company.
PAMELA J. DEEB
Notary Public -Minnesota
My Commission Expires Jan 31, 2022
Page 13 of 18
CITY OF MENDOTA HEIGHTS, MINNESOTA
f Vim- b„)
Neil Garlock, Mayor
Lorri Smith, City Clerk
Date: 9 V-aG/J
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this L clay of (1 2018, by
Neil Garlock and Lorri Smith, the Mayor and the City Clerk, respectively, of the City of Mendota Heights,
a Minnesota municipal corporation and political subdivision, on behalf of such city.
Page 14 of 18
KRISTIN CHERYL WITTROCK
��t
EXHIBIT A
Legal Description —1136 Orchard Place
PID: 27-54150-01-010
Lot 1, Block 1, Olin Addition, Dakota County, Minnesota
AND
Legal Description — 1140 Orchard Place
PID: 27-54150-01-020
Lot 2, Block 1, Olin Addition, Dakota County, Minnesota
EXHIBIT B
Resolution No. 2018-32
Page 16 of 18
EXHIBIT C
Final Plat — Orchard Heights
Page 17 of 18
PRELIMINARY COPY
816118
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rritethowl
EXHIBIT D
Final Grading and Drainage Plans
Page 18 of 18