HomeMy WebLinkAboutVIII-07 Amendment to Development Agreement - Heritage Ridge 3rd Addition1
City Council Memorandum
To: Mayor Fasbender and City Council
From: John Hinzman, Community Development Director
Date: May 2, 2022
Item: Authorize Signature: 1st Amendment to Development Agreement - Heritage
Ridge 3rd Addition
Council Action Requested:
Authorize signature of the attached 1st Amendment to the Development Agreement
between the City and Creative Homes for the development of Heritage Ridge 3rd Addition
containing 40 lots located at the northwest corner of General Sieben Drive and Fallbrooke
Drive.
The amendment allows cash fees and escrows to be made in two separate payments to
avoid a potential delay by existing on-site contractors. It also removes the requirement for
a Stormwater Management Agreement, which is not necessary in this addition.
Approval would be subject to minor modifications by staff. A simple majority is necessary
for action.
Background Information:
The City Council authorized signature of the original agreement on April 18, 2022. Final
Plat approval was granted on September 7, 2021 to TC Land, LLC, The assignment of TC
Land’s approval to Creative Homes was approved by the Council on February 7, 2022.
Financial Impact:
The addition of 40 home sites will add to the tax base and create needed housing
opportunities.
Advisory Commission Discussion:
N\A
Attachments:
1st Amendment to Development Agreement
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FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this “FIRST
AMENDMENT”) is made and entered into on the day of , 2022
(“EFFECTIVE DATE”), by and between the City of Hastings, a Minnesota municipal corporation
(“CITY”), and Creative Home Construction Investments LLC, a Wisconsin limited liability company
(“DEVELOPER”).
RECITALS:
WHEREAS, the CITY and DEVELOPER entered into a DEVELOPMENT
AGREEMENT FOR THE PLAT OF HERITAGE RIDGE 3RD ADDITION dated
_________________________, recorded as Document No. _______________ on
________________ in the Dakota County Recorder’s Office (“Development Agreement”), for the
real property identified in the DEVELOPMENT AGREEMENT; and
WHEREAS, due to labor shortages, the DEVELOPER will be unable to close on financing
for the DEVELOPMENT PROJECT; and
WHEREAS, the CITY and DEVELOPER do not want to lose a construction season by
delaying the DEVELOPMENT PROJECT; and
WHEREAS, the DEVELOPMENT PROJECT does not require a Stormwater Management
Facilities Agreement; and
WHEREAS, the parties desire to amend the DEVELOPMENT AGREEMENT as it relates
to when certain financial securities are due to keep the DEVELOPMENT PROJECT moving
forward and to remove the Stormwater Management Facilities Agreement requirement.
NOW, THEREFORE, in consideration of the mutual promises and covenants of each to
the other contained in this FIRST AMENDMENT and other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto do covenant and agree as follows:
1. Section 15.3 of the DEVELOPMENT AGREEMENT shall be removed and replaced in its
entirety as follows:
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15.3. DEVELOPER’S CASH FEES AND ESCROW REQUIREMENTS.
DEVELOPER shall pay all cash fees and provide a LOC with the CITY in the amounts on
Exhibit C no later than May 3, 2022, except as provided herein. DEVELOPER shall pay
the LOC for Site Improvements as follows: an LOC or cash of at least $500,000 no later
than May 3, 2022 and the balance of the Site Improvement LOC shall be due no later than
June 1, 2022.
2. Exhibit D of the DEVELOPMENT AGREEMENT shall be removed and replaced in its
entirety with the attached Exhibit D.
3. Except as provided for above, the terms and provisions of the DEVELOPMENT
AGREEMENT shall remain in full force and effect.
4. This FIRST AMENDMENT and all disputes or controversies arising out of or relating to
this FIRST AMENDMENT or the transactions contemplated hereby shall be governed by,
and construed in accordance with, the internal laws of the State of Minnesota, without
regard to the laws of any other jurisdiction that might be applied because of the conflicts
of laws principles of the State of Minnesota.
5. Nothing contained herein shall be deemed a waiver by the CITY of any governmental
immunity defenses, statutory or otherwise. Further, any and all claims brought by
DEVELOPER or its successors or assigns, shall be subject to any governmental immunity
defenses of the CITY and the maximum liability limits provided by Minnesota Statutes,
Chapter 466.
6. This FIRST AMENDMENT may be executed in two or more counterparts, all of which
shall be considered one and the same instrument and shall become effective when one or
more counterparts have been signed by the parties and delivered to the other parties.
7. This FIRST AMENDMENT shall not be amended, modified or supplemented, except by
a written instrument signed by an authorized representative of each party.
[remainder of page intentionally blank]
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IN AGREEMENT, the parties hereto have hereunto set their hands as of the EFFECTIVE
DATE.
CITY:
CITY OF HASTINGS
By:
Mary Fasbender
Its Mayor
By:
Kelly Murtaugh
Its City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
On this day of , 2022, before me a Notary Public within and
for said County, personally appeared Mary Fasbender and Kelly Murtaugh to me personally known,
who being each by me duly sworn, each did say that they are respectively the Mayor and City Clerk
of the City of Hastings, the municipality named in the foregoing instrument, and that the said
instrument was signed in behalf of said municipality by authority of its City Council and said Mayor
and City Clerk acknowledged said instrument to be the free act and deed of said municipality.
Notary Public
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DEVELOPER:
CREATIVE HOME CONSTRUCTION INVESTMENTS LLC
By:
Nicholas R. Hackworthy
Its Manager
STATE OF _____________________)
) ss.
COUNTY OF )
On this _____ day of _____________, 2022, before me a Notary Public within and for said
County, personally appeared Nicholas R. Hackworthy to me personally known, who being by me
duly sworn, did say that he is the Manager of Creative Home Construction Investments LLC, a
Wisconsin limited liability company, the entity named in the foregoing instrument, and that said
instrument was signed on behalf of said entity and said Nicholas R. Hackworthy acknowledged
said instrument to be the free act and deed of the entity.
Notary Public
THIS INSTRUMENT DRAFTED BY AND
AFTER RECORDING PLEASE RETURN TO:
Korine Land, #262432
LeVander, Gillen, & Miller, P.A.
1305 Corporate Center Drive, Suite 300
Eagan, MN 55121
(651) 451-1831
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D-1
EXHIBIT D
MISCELLANEOUS REQUIREMENTS AND CONDITIONS
IMPOSED BY THE CITY
1) CONDITIONS TO BE SATISFIED BEFORE CITY RELEASES THE FINAL PLAT
TO BE RECORDED.
a) Planning Fees. DEVELOPER must fully pay the CITY all planning, engineering
review and legal fees that have been incurred up to the date of approval of this
DEVELOPMENT AGREEMENT.
b) Park Dedication Fee. DEVELOPER must pay park dedication fees as required in
Exhibit C.
c) Sewer Interceptor Fees. DEVELOPER must pay sewer interceptor fees as required in
Exhibit C.
d) Outlot A. DEVELOPER has executed a deed to the Homeowners’ Association for
Outlot A for stormwater.
2) CASH, ESCROW AND LOC DEPOSITS. DEVELOPER must pay all cash, LOC and
escrow deposits required in this DEVELOPMENT AGREEMENT, pursuant to the dates in
Section 15.3 and in the amounts in Exhibit C.
3) BUILDING PERMITS. No building permits may be obtained until:
a) All the conditions in Paragraph 1 of this Exhibit D have been met;
b) All storm water ponds and associated drainage features including storm sewer and
drainage swales have been installed;
c) The concrete curb and gutter and base course of bituminous for the streets serving the
lot must be constructed by the DEVELOPER and approved by the CITY and
determined by the CITY to be available for use;
d) The utilities have been installed;
e) Record Drawings have been received and approved by the CITY;
f) The following documents have been recorded:
Final Plat
Development Agreement
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Deed for Outlot A to the Homeowners’ Association
Homeowners’ Association Declaration establishing responsibility for
maintenance of common elements including stormwater basins and
landscaping
4) CERTIFICATES OF OCCUPANCY. Prior to issuance of any certificate of occupancy, all
the following conditions must be satisfied:
a) All the conditions listed in Paragraphs 1 and 2 of this Exhibit D must be satisfied.
5) SUBDIVISION EROSION CONTROL. DEVELOPER is responsible for erosion control
throughout the FINAL PLAT pursuant to the NPDES permit until all lots in the FINAL PLAT
are built upon and until turf is established in each of the individual lots in the FINAL PLAT.
6) CLEAN UP OF CONSTRUCTION DEBRIS ON STREETS AND ADJOINING
PROPERTY. The escrow amount stated on Exhibit C shall include an appropriate amount as
determined by the Director of Public Works to ensure that the DEVELOPER removes any
construction debris from streets adjoining the FINAL PLAT and from private properties that
adjoint the FINAL PLAT. During the construction of the residences and other improvements
within the FINAL PLAT, the DEVELOPER is responsible for removing any construction
debris (including roofing materials, paper wrappings, construction material and other waste
products resulting from construction) that may be blown from the construction site into
adjoining private properties or into CITY streets or that may fall from delivery trucks onto
adjoining private properties or CITY streets. Further, during construction, the DEVELOPER
must clear the CITY streets of any dirt or other earthen material that may fall onto the CITY
streets from the delivery trucks that are being used in the excavation and grading of the site.
7) MAILBOXES. The DEVELOPER is responsible for the placement of a mailbox for all the
lots within the DEVELOPMENT PROJECT and must comply with the United States Postal
Service’s mailbox design and placement requirements. The mailboxes must all be of similar
design and color within the DEVELOPMENT PROJECT.
8) SIDEWALK SNOW REMOVAL AND TRAIL MAINTENANCE. If the CITY does not
provide snow removal on a trail or sidewalk within the DEVELOPMENT PROJECT, the
property owner abutting the trail or sidewalk must remove the snow and/or ice, as required by
the City Code.
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