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2019-33RESOLUTION 2019-33 COUNCILMEMBER RUMP INTRODUCED THE FOLLOWING RESOLUTION: WHEREAS the City of Blair, Nebraska has been presented with a Developer's Agreement between the City of Blair, Nebraska, City of Blair, Nebraska, and J Nielsen Construction, a Nebraska limited liability company for Replat of Lot 1, Arbor Heights Addition to be known as Lots 46-50, Arbor Heights Addition to include paving, storm sewer, water and sanitary sewer services. WHEREAS, the terms and conditions of the Developer's Agreement are acceptable to the City of Blair, Nebraska. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF BLAIR, NEBRASKA, that the Developer's Agreement attached hereto, marked Exhibit "A" and by this reference made a part hereof as though fully set forth herein, which has been presented to the City Council, is hereby accepted and adopted by the City of Blair, Nebraska, and that the Mayor and the City Clerk of Blair, Nebraska, are hereby authorized and directed to execute said Developer's Agreement on behalf of the municipality. COUNCIL MEMBER RUMP MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER WOLFF. UPON ROLL CALL, COUNCIL MEMBERS SHEPARD, STEWART, RUMP, ANDERSEN, WOLFF, HALL AND JENSEN VOTING "AYE", AND COUNCIL MEMBERS NONE VOTING "NAY", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND ADOPTED THIS 12TH DAY OF NOVEMBER 2019. CITY OF BLAIR, NEBRASKA RICHARD HANSEN, MAYOR ATTEST: BRENDAWHEELER, CITY CLERK (SEAL) STATE OF NEBRASKA ) ) :ss: WASHINGTON COUNTY ) BRENDA R. WHEELER, hereby certifies that she is the duly appointed, qualified and acting City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed and adopted at a regular meeting of the Mayor and City Council of said City held on the 12th day of November, 2019. a BRENDA WHEELER, CITY CLERK- DEVELOPER'S AGREEMENT C' TI -11S AGREEMENT made this day of W , by and between the City of Blair, Nebraska, a Municipal corporation (hereinafter referred to as "City"), and J. Nielsen Con:Struction, a Nebraska limited liability company (hereinafter referred to as "Developer"), WHEREAS, the Developer wan -ants and represents that it owns all legal and beneficial rights to the tract of land legally described in the surveyor's certificate portion of the replat attached hereto as Exhibit "A" (which parcel of land is herein referred to as "Lots 46-50, Arbor Heights Addition"), WHEREAS, Developer has proposed a replat for Lot 1, Arbor Heights Addition, to be known as "Lots 46-50, Arbor Heights Addition"; and WHEREAS, Developer proposes to install and construct certain public improvements in and serving Lots 46-50, Arbor heights Addition, and has requested the City to approve Developer's replat and plans for developing the area; and WHEREAS, except as otherwise provided for in this agreement, the Developer has elected to use its personal financing for the construction of those improvements to be installed and constructed by Developer, with such infrastructure, utilities and other improvements to be paid for by Developer without the use of a sanitary improvement district, City or other public funds, except for the portion of stormwater improvements denoted in Section I(d); and WHEREAS, the parties wish to agree upon the manner and to the extent to which paving, water mains, sanitary sewers, storm sewers, vehicular and pedestrian access and movement, utility distribution systems and other aspects of the infrastructure for Lots 46-50, Arbor heights Addition, shall be constructed and other issues that are to be resolved; and WHEP,E,AS, Developer desires to provide for the flow and handling of sewage collected in or flowing into the sanitary sewer system to be constructed within Lots 46-50, Arbor Heights Addition, and has requested City to issue the necessary connection permits therefor. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND BENEFITS TO EACH DARTY AS SET FORTH HEREIN, IT IS AGREED AS FOLLOWS: 1. Construction/Installation of Public Improvements by Developer. Except as otherwise set forth herein, the Developer covenants and agrees that the Developer shall, within 120 days after the filing of the replat for Lot 1, Arbor Heights Addition, present to the City Clerk binding contracts in full force and eftwct calling for the timely and orderly installation of the following public improvements at the Developer's expense: (a) Paving. Concrete paving not less than seven inches (7") in depth with integral curb, and of a width of twenty-five feet (25% including the curb width, and which paving shall be constricted in dedicated street right-of-way per the replat (Exhibit "A") and engineering design (Exhibit "B"). -1- The Developer shall also ensure that all existing trees, portion of trees, or other obstructions in the sight triangle easement area for the Arbor Drive — 18'h Avenue intersection are removed. (b) Sanitary Sewers. All sanitary sewer mains, manholes, and related appurtenances to be constructed within or serving Lots 46-50, Arbor Heights Addition, which shall be constructed in street right-of-way. (d) Storm Sewers. Storm sewers, inlets, manholes, and related appurtenances to be designed based upon an approved engineer's stormwater study and to be constructed in dedicated street right-of-way. The City shall reimburse the Developer for the cost of the storm sewer from manhole STM M112 (excluding the manhole) through the storm sewer run and discharge east of 18th Avenue (including pipe P-3, manhole STMMHI, pipe P-2, the reconstructed inlet Cl on 18th Avenue, and the discharge pipe P-1 and flared end section FES 1). (e) Water, Water service from the City of Blair, including domestic and firefighting Bows, to serve all lots within Lots 46-50, Arbor Heights Addition, shall be installed within the right -of way and interconnected with existing water maims. (f) Gas. Gas mains to serve all lots to be constructed within the right-of-ways. (g) Power. Underground electrical power to serve all properties within Lots 46-50, Arbor Heights Addition. (h) Street Lighting. Street lighting of a height, illumination and design to be approved by the City and as determined by City to be necessary, 2. The plans and specifications for and location of each improvement shall be in accordance with established City requirements and are to be approved by City's Engineer prior to starting construction or installation of each said improvement (see .Exhibit "B"). 3. Private Financing of the Public 1ni rovements. The parties agree that the entire cost of all public improvements set out in this Agreement shall be paid by the Developer. Lots 46- 50, Arbor Heights Addition, shall not be included within the boundaries of any sanitary improvement district and no other form of public financing shall be utilized in construction of the improvements for Lots 46-50, Arbor Heights Addition, except for the portion of stormwater improvements denoted in Section I (d). 4. Construction Specifications, Testing, Etc. The Developer covenants and agrees that it will abide by and incorporate into all of its construction contracts the provisions required by the regulations, and policies and procedures of the City pertaining to the construction of public improvements in subdivisions and testing procedures therefor. 5. City pproval of Plans and Specifications, All improvements will be constructed in accordance with plans and specifications and locations approved in writing by City's Engineer -2- and in accordance with the City's policies and minimum standards and requirements of construction and testing procedures therefor, and directions of City Engineer, and that upon completion of construction thereof, Developer shall furnish to City a certificate from its consulting engineer so certifying. 6. Construction Inspection/Testing. Developer shall ensure that a qualified inspector is on site whenever any work is being done for all such improvements that shall be constructed within the area to be developed that will be firnished to the City. Developer shall cause appropriate testing of materials and work finished in respect to the eonstiuction of improvements and shall furnish City's engineers with copies of test results. City's engineers may order additional paving core tests, sewer televising or other tests, the cost of which shall be paid by Developer to the party performing the testing procedures, which additional testing costs shall also be a cost of the improvement. Neither the Developer nor any other party shall be entitled to rely upon any inspections made by the City for any purpose whatsoever. The sole responsibility for proper inspection and certification as to completion remains with the Developer and Developer's engineers. 7. Construction Record Drawings. Developer shall cause "Construction Record Drawings", in reproducible from, and specifications for all such improvements that District shall have heretofore or hereafter constructed within the area to be developed to be furnished to City, in triplicate, promptly and without cost to the City. All such plans shall be submitted on paper and in an electronic format acceptable to the City to be incorporated into the City's GIS, except where the City agrees otherwise. 8. Compliance with Laws, Ordinances, Etc. All such improvements shall comply with all applicable federal and state laws and regulations in general and with all applicable ordinances and regulations of the City in reference to construction use, operation and maintenance. 9. Corrective Action. In the event that City's Engineer determines that there is anything in the construction, maintenance or operation of any such .improvements which will, in the opinion of City's Engineers, be detrimental to any other improvement or utility constructed or to be constructed in the same street right-of-way or easement way, Developer will, on notice thereof, promptly cause its engineers to .jointly review and evaluate the problem with City's engineer and formulate a plan for corrective action which shall be implemented by Developer and/or Developer's Engineer at no cost to City. 10, Construction Bonds. Developer shall require each contractor to furnish a two-year performance and maintenance bond, with Developer and City as joint and several obligees thereon, which bond shall be satisfactory to the City as to surety, form and terms. 11. Easements. Prior to commencement of construction of improvements, the Developer will obtain and file of record permanent easements for all water, gas, sanitary and stone sewer lines authorized by this Developer's Agreement which are not situated in dedicated street right-of-ways. Said easements shall be in form satisfactory to the City, -3- 12, Utility Connections. All costs and permits associated with connection to utilities will be the responsibility of the Developer and individual property owners, and. not the City. 13. Third -Party Rights. The Developer shall be primarily liable to the City for the construction and installation of the foregoing improvements. However, such primary obligation to the City is not intended to preclude the property owners within Lots 46-50, Arbor Heights Addition, from, as among themselves, agreeing to bear such costs as between themselves in such manner upon which they may agree. The reaching of such an agreement, as among property owners, or the absence thereof, does not in. any Nvay diminish or change the City's right to look to Developer for Rill performance of the obligation to construct and install improvements. 1.4. Maintenance and Repair of Wrastructure Improvements. Except for any infrastructure improvements that are maintained by the State of Nebraska Department of Roads, the City will assume responsibility for repair and maintenance of the following infi-astructure frorn the time of the City's acceptance of the project engineer's certification of completion of same: (a) Sanitary sewer intended for public use. (b) All paving (inclusive of median and median improvements) and storm sewer intended for public use; (c) Public water system intended for public use; (d) OPPD charges for maintenance and energizing of street lighting and traffic signalization; Except for the foregoing improvements, the obligation to repair, maintain and reconstruct improvements shall be that of the Developer, 15, Sanitary Sewer System. As regards to the sanitary sewer system, which shall be constructed by Developer, the parties agree as follows; (a) City to Take Ownership of and Maintain Sewers. Upon the completion of the sanitary system within any dedicated public easements and the City's acceptance of the engineer's certificate of completion thereof, the City shall be granted and the City Shall accept control and operation of such sanitary sewer system. The Developer shall convey by proper legal instrument all of its rights, easements, title, and interest in such sanitary sewer and easements therefor, to the City, The acquisition shall be upon City approved forms. (b) Connection. Subject to the conditions and provisions hereinafter specified, the City hereby grants permission to the Developer to connect the sewer system for Lots 46-50, Arbor Heights Addition, in such manner and at such place or places designated on plans submitted by the Developer and approved by the City (see Exhibit "B") (c) Connection of External Sewers. Without prior written approval by the City, the Developer shall not permit any sewer lines or sewers serving areas outside of Lots 46-50, Arbor Heights Addition, or transporting sewage from outside Lots 46-50, Arbor Heights Addition, to be connected to any of the following: (1) the severer or sewer lines within Lots 46-50, Arbor Heights Addition; (2) any sewer flowing directly, or indirectly, into sewers of the City; (3) any outfall sewer of the City; or (4) any sewage treatment plant of the City or any plant treating sewage of the City, The City shall have exclusive right to collect sewer connection fees and sewer r;se fees in respect to connections to the sewer system for Lots 46-50, Arbor Heights Addition, whether emanating from within or without the boundaries of Lots 46-50, Arbor Heights Addition. The Developer shall not collect connection charges or sewer use fees on account of any connections to any sewer. (d) Sewage Discharge to be in Conformity with Laws. At all times all sewage emanating from or transported through Lots 46-50, Arbor Heights Addition, into the City sewer system shall be in conformity with laws, ordinances, rules and regulations applicable to City sewers as now in force and as from time to time may be amended. (e) City Right of Disconnection. City retains the right to disconnect any sewer or sewer connection within or without Lots 46-50, Arbor heights Addition, which has been connected without benefit of properly issued City sewer connection permit, or for which the City has not received the applicable connection fee or which is discharging into the sewer system in violation of the terms of this Agreement or of any applicable law, ordinance, statute, rule, or regulation. 17. Compliance with City Regulations, Etc. The Developer expressly agrees that it and the properties within Lots 46-50, Arbor Heights Addition, are and shall be: (a) Bound by and to any provisions of any ordinances, rales and regulations now or hereafter adopted by the City applicable to subdivisions whose sewers are owned or maintained by City or which connected directly or indirectly with or into sewers or sewage systems owned or maintained by the City; and (b) Bound by any terms and provisions which by ordinance, resolution, or rule of the City shall hereafter adopt or provide as being applicable to or required in contracts with Developers or in order to permit or continue the discharge of any sewage from a subdivision to flow into or through any part of the sewer or sewage system of the City. 18. Connection Permit and Fees. Before any corinection from any premises to the sewer system may be made, a permit shall be obtained for said premises and its connection from the proper department of the City, it being expressly understood that the City reserves the right to collect all connection charges and fees as required by City ordinances, rules or regulations now or hereafter in force; all such connections shall comply with minirnutn standards prescribed by the City. -5- 19. Separate Metering/Monitoring. The City, by reason of potential volume of flow or type of or character of discharge from a property, or in order to bring the property's use of sewer into compliance with federal, state or City laws or regulations, may require sewage flow from a property to be separately metered and/or monitored, in which event the affected property owner shall, at such property owner's expense, install the required metering/monitoring equipment. 20, City Sewer Tap, Inspection and Use Fees to be 'aid. 1n respect to properties connecting to the sewer system, the City may collect the City's sewer tap and inspection and permit fees, and its sewer use fees as now or hereafter existing. 21. Easements and Ri ht -of Wa , The Developer, at no cost to City, shall provide easements and right-of-way in favor of City as may be needed for installation or improvements not adequately provided for in the final plat or plats, should there be need for such easements or right-of-way. 22. Miscellaneous provisions. Developer further agrees: (a) Engineers. City may employ its regular engineers or independent engineers, as it may choose for different matters or issues pertaining to the Subdivision, and as used herein, "City's Engineer" shall mean the Director of Public Works or the engineer or engineering firm so employed by City in respect to the particular review, matter or issue. (b) Covenants Running with the Land. This Developer's Agreement and the agreements and understandings herein constitute covenants running with the land and shall he binding upon the Developer, its successors, assigns, heirs, lenders, mortgagees and others gaining or claiming an interest or lien in the subdivision tract or a part thereof. 23. Remedies. That in addition to whatever rights of enforcement of the terms hereof are herein granted to any party, each party may avail itself of all other remedies it may have to enforce the terms hereof at law or equity. By way of specification and not byway of limitations, cacti of the parties expressly reserve to and right to specifically enforce full compliance of the terms and conditions of this agreement by mandatory or prohibitory injunction. 24. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska. This Agreement is made and entered into in Blair, Washington. County, Nebraska and is being performed in Washington County, Nebraska. The parties hereby agree that any action to enforce the terms of this Agreement, or for any other rernedy arising out of said Agreement, shall be brought solely in a Washington County state court or federal court in the State of Nebraska, and in no other court, and each party specifically acknowledges and submits to the personal jurisdiction of said court, and waives as to any such court any defense of inconvenient forum or improper venue. 25. Exhibit Surmnaa, The Exhibits proposed by TD2 Engineering & Surveying, engineers for Developer, are attached hereto and made a part hereof are as follows: -6- Exhibit "A" --- Lots 46-50, Arbor Heights Addition, a Replat of Lot 1, Arbor Heights Addition, a Subdivision in the City of Blair, Washington County, Nebraska. Exhibit "B" Arbor Heights .Addition to the City of Blair, Sanitary Sewer, Water, Storm Sewer and Paving, Lots 46-50, Inclusive, Blair, Nebraska, IN WITNESS WHEREOF, we the parties hereto, by our respective duly authorized agents, hereto affix our signatures the day and year first written above, CITY OF BLAIR, NEBRASKA 13Y. Richard Hansen, Mayor, City of Blair ATTEST: " By: Brenda Wheeler, City Clerk STATE OF NEBRASKA ) ss: COUNTY OF WASHINGTON ) .off`€czyy 7?i `�'' The foregoing instrument was acknowledged before me on the 1-2- day of�l�aventT ; by Richard Hanson, Mayor of Blair. GENERAL NOTARY -State of Nebraska_ BRENDA R WHEELER – — My Comm. Exp. June 20, 2020 -7- Notary Public J. Nielsen Construction Nebraska limited liability company, 7 6 STATE OF NEBRASKA ) COUNTY OF WASHINGTON The foregoing inst-Liment was acknowledged before me on the f 7day of by Jay Nielsen, _J.. Nielsen Construction, on behalf of said limited liability company. GEI" NOTARY - stave aHebta*a AVID G. LADWIG My COMM, EX0, WOO 01 Notary Public I M. EXHIBIT "C" Nielsen Homes ARBOR HEIGHTS BREAKDOWN P3 24" RCP 248 feet at $62 per foot $15,376.00 P2 15" RCP 40 feet at $40 per foot $1,600.00 P1 18" RCP 28 feet at $46 per foot $1,288.00 FES 1 at $650 ea. $650.00 MH1 (Includes barrel section, flat top, ring and cover and wier wall) $2,785.00 Type IV Curb Inlet 18th Ave. 1 at $2900 ea. $2,900.00 Sawcut Pavement 18th Ave. 50 feet at $7 per foot $350.00 5" Sidewalk 42 sq.feet at $19 per sq. ft. $798.00 7" Patch at 18th Ave. 45 sq. yd at 52.32 per sq. yd. $2,354.40 $ 28,101.40