2009-08RESOLUTION 2009 - 8
COUNCILMEMBER FANOELE INTRODUCED THE FOLLOWING RESOLUTION:
WHEREAS the City of Blair, Nebraska has been presented with a Developer's
Agreement between the City of Blair, Nebraska, and Hayden Place Development, LLC to
develop the subdivision of Hayden Place First Addition, a subdivision being part a replat of Tax
Lot 281 and Tax Lot 282, a portion of Kellie Street right of way, Lots 5, 6, 7, 8 and 9, Hayden
Place Replat One, all located in the South Half of the Southeast Quarter of Section 14, Township
18 North, Range 11 East of the 6th P.M., and Northeast Quarter of the Northeast Quarter, Tax
Lot 129 and a portion of Kellie Street right of way, all located in the North Half of the Northeast
Quarter of Section 23, Township 18 North, Range 11 East of the 6th P.M., Washington County,
Nebraska (Lots 1 through 8 containing 77 acres more or less).
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 ABBOTT MOVED THAT THE RESOLUTION BE ADOPTED AS
READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER FANOELE.
UPON ROLL CALL, COUNCIL MEMBERS STEWART, SHEPARD, FANOELE, KEPHART,
CHRISTIANSEN, ABBOTT, WOLFF AND JENSEN VOTING "AYE ", AND COUNCIL
MEMBERS NONE VOTING "NAY, THE MAYOR DECLARED THE FOREGOING
RESOLUTION PASSED AND ADOPTED THIS 10TH DAY OF MARCH, 2009.
CITY OF BLAIR, NEBRASKA
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ES E. REALPH, MAYOR
ATTEST:
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BRENDA R. WHEELER, 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 10th day of March, 2009.
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BRENDA R. WHEELER, CITY CLERK
DEVELOPER AGREEMENT
THIS AGREEMENT made this 10 day of March, 2009, by and between the City of
Blair, Nebraska, hereinafter referred to as "City ", and Hayden Place Development, LLC, a
Nebraska limited liability company, hereinafter referred to as "Developer ".
WHEREAS, Developer has submitted a final plat for the subdivision legally described as:
HAYDEN PLACE FIRST ADDITION (Lots 1 through 6 inclusive) being a replat or plat of
HAYDEN PLACE REPLAT ONE Lots 5, 7 and 9, Tax Lot 281 located in the SW 1 /4 of the SE 1 /4
and Tax Lot 282, located in the SE 1 /4 of the SE 1 /4 of Section 14, Township 18 North, Range 11
East of the 6th P.M., also including Tax Lot 129, located in the NW 1 /4 of the NE 1 /4 and the NE
1 A of the NE 1 /4 of Section 23, Township 18 North, Range 11 East of the 6th, P.M., Washington
County, Nebraska (See attached Exhibit "A" which is fully incorporated herein by reference).
WHEREAS, Developer desires the City form improvement or extension districts for
paving and storm sewer, water and sanitary sewer services to the subdivision and Developer is
willing to participate in and fund a portion of the cost of said Improvements through the use of
both public and private financing as provided for herein.
WHEREAS, the parties wish to agree upon the manner and the extent to which public
funds may be expended in connection with public Improvements to be constructed within the
Subdivision or serving the Subdivision and the extent to which the contemplated public
Improvements specially benefit property within the Subdivision and to what extent the cost of
the same shall be specially assessed against the property of the Developers and other matters
pertaining to the development of the Subdivision and health, safety and welfare of the City, the
District, their inhabitants and the public.
WHEREAS, Two Rivers Bank ( "Lending Institution ") may have or claim an interest in
said real estate and agree their interest shall be junior and inferior to City's assessments against
said real estate for the construction of said Improvements.
NOW, THEREFORE, IN CONSIDERATION OF MUTUAL COVENANTS AND
BENEFITS TO EACH PARTY AS SET FORTH HEREIN, IT IS AGREED AS FOLLOWS:
1. Definitions
Unless a contrary intent is clearly indicated herein, the following words and phrases shall
have the following meanings, regardless of whether or not capitalized:
A. "Agreement" or "this Agreement" or "Developer's Agreement" shall mean this
document entitled "Developer's Agreement" and all Exhibits and Supplemental
Agreements hereto.
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B. "Assessable Costs" shall mean those Costs (as defined herein) that are specially
assessed against the Property Benefited (as defined herein) in accordance with the terms
and conditions of this Agreement.
C. The "Construction Cost" of an improvement shall mean the amount paid to the
contractor, utility or entity installing the improvement or performing the work, together
with all other direct labor and material costs incorporated into the construction of the
improvement, and net of refunds, reimbursements and offsets thereto.
D. The "Cost(s)" or "Entire Cost(s)" of a type of improvement shall be deemed to
include all construction costs, engineering fees, attorneys' fees, testing expenses,
publication costs, financing costs, and other costs of achieving completion, acceptance
and financing of the project or work and miscellaneous costs. In this connection,
financing costs shall include interest on warrants to date of levying the special
assessments. Miscellaneous costs of the improvement shall include the pro rata share of
the general unallocated costs incurred by the City in constructing the Improvements,
which unallocated costs shall be prorated to each improvement on the basis that the entire
cost of each improvement bears to the entire cost of all Improvements constructed by the
City.
E. "Improvements" or "Infrastructure" shall mean, to the extent located within the
Subdivision or pertaining to Subdivision entrances, any and all facilities constructed or
otherwise implemented for the purpose of providing access or services of any type or
description to or from the Subdivision or serving facilities or properties within or serving
the Subdivision, including but not limited to, ingress and egress from the Subdivision,
and enhancements or reconstruction of existing paving and traffic signalization in
conjunction therewith, and construction of storm sewers, sanitary sewers, including
outfall sewer, grinder, pump and force main, and access thereto, drainage and drainage
retention, and other infrastructure, together with utility systems and easements for any
Improvements where required.
F. "Land Utilization and Preparation Costs." Except as stated below, "Land
Utilization and Preparation Costs" shall include, but not be limited to, all costs pertaining
to, or arising out of, determination of feasibility, acquisition, reclamation, preparation,
enhancement and /or utilization of land, and all engineering, legal, financing and
contracted or other services related thereto or to the following:
(1) Soil and water tests, topographic surveys, geotechnical investigation and
environmental studies and drainage studies, water drainageways and
surface water retention and /or detention basins or facilities, surveying,
staking and testing;
(2) Excavation, filling, compaction, stabilization and testing thereof;
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(3) Grading;
(4) Erosion and silt control, including installation and removal thereof;
(5) Environmental studies and permits required by Corps of Engineers or
other governmental agencies having jurisdiction in the matter and costs of
compliance with the terms of such permits and requirements thereof; and
(6) Such other costs incurred to utilize and /or prepare land to a City approved
final grade, elevation, drainage control and soil condition ready for
installation or construction of the public Improvements authorized by this
Agreement.
Except as otherwise provided in this Agreement, the costs of detailed design,
testing, finish grading, staking, silt control, trenching, refill, recompaction and actual
installation and /or construction of the Improvements by the City and occurring within
dedicated street right -of -way or other City approved public permanent easement area,
shall not be a Land Utilization and Preparation Cost within the meaning of this
Subsection and shall be specially assessed against the Property Benefited in accordance
with Section 7, below.
G. "Plat" or the "Final Plat" shall mean the final plat approved by the City Council
attached hereto as Exhibit "A ".
H. "Property Benefited" shall mean the real property within the Subdivision that
constitutes a buildable site.
I. "Subdivision" shall mean the 77.07 acres of land, more or less, described in
Exhibit "A" hereto, to be known as "Hayden Place First Addition."
2. Construction/Installation of Improvements by the City
The Developer hereby requests and the City hereby agrees to form such pavement and
extension districts necessary to construct or install, or cause to be constructed or installed only
the following types of public Improvements upon the property located within or immediately
adjacent to the boundaries of the Subdivision and necessary water, sanitary sewer, and surface
water drainage to or from existing or planned facilities as follows:
A. Paving: Concrete paving of all public streets dedicated pursuant to the Final Plat
of the Subdivision shall be twenty -five (25') feet in width, except for those streets with a
width greater than twenty -five (25') feet, which streets shall be extra -width paving, if
any. The City shall construct the street systems in accordance with the paving plans
attached hereto as Exhibit "B ". All new paving within the Subdivision shall be seven
inches (7 ") thick. One hundred percent (100 %) of the Assessable Costs of all paving
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within the Subdivision, as shown on Exhibit `B" shall be paid by special assessments
against the Property Benefited within the area to be developed, except for the costs of that
portion of each intersection, including any roundabouts or other traffic calming devices
constructed within the Subdivision, shall be a general obligation cost of the City and shall
not be assessed against the property within the Subdivision.
B. Storm Sewerina. Public storm sewer system, including storm sewers within street
right -of -ways, inlets, manholes, junction boxes, flared end sections and other related
appurtenances constructed in the dedicated street right -of -ways, but excluding storm
sewers, storm sewer stubouts and all related appurtenances constructed outside of
dedicated street right -of -ways serving private property or its runoff, provided, however,
the entire cost of the storm sewer system constructed outside of the dedicated right -of-
ways for the purposes of transporting storm water originating in street right -of -ways and
then proceeding across private property may be financed by the City, but shall not be
included as part of the special assessments. The City shall construct the storm sewer
system in accordance with the plans attached hereto as Exhibit "C ".
One hundred percent (100 %) of the Assessable Costs of all storm sewers within
the public right -of -ways of the Subdivision, or functioning as a transporter of storm water
to points outside the Subdivision, including manholes, inlets and other appurtenances, for
storm sewers designed and constructed for a ten -year storm event or less shall be
specially assessed against the Property Benefited. Any public storm sewer located in a
public right -of -way within the Subdivision, the size of which is designed and constructed
in excess of a ten -year storm event and is not caused by the development of this
Subdivision, shall be paid for by the City to the extent of the difference in material and
installation cost between the sizing of the facilities for a ten -year storm event and the
actual size required.
C. Storm Water Detention. Storm water detention facilities and Improvements that
constitute Land Utilization and Preparation Cost within the meaning of Subsection 1 -F,
above, shall be constructed at Developer's private expense and no part of the cost thereof
shall involve or be defrayed by funds or credit of the City.
D. Sanitary Sewer Collector System. All sanitary sewer mains, manholes and related
appurtenances are to be constructed as more fully illustrated on "Sanitary Sewer Plan"
attached hereto as Exhibit "D." One hundred percent (100 %) of the Assessable Costs of
all sanitary sewers within or serving the Subdivision, including manholes other
appurtenances, shall be specially assessed against the Property Benefited.
E. Water. Water service from the City, including domestic and firefighting flows, to
serve the property within the Subdivision and located within dedicated street right -of-
ways pursuant to the Final Plat shall be installed by the City. One hundred percent
(100 %) of the assessable cost of the water distribution system serving the area to be
developed shall be specially assessed against the Property Benefited within the
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Subdivision. The City shall construct the water service system in accordance with the
plans attached hereto as Exhibit "E".
F. Underground Electrical. The underground electrical service to each of the lots in
the Subdivision to be installed by Omaha Public Power District ( "OPPD ").
G. Street Lighting. Street Lighting for public streets dedicated pursuant to the Final
Plat to be installed and energized by Omaha Public Power District. All street lighting
shall be of a height, illumination and design to be approved by the City.
H. Gas. Gas mains to serve all of the property within the Subdivision and to be
constructed within any right -of -ways of the Subdivision or any external gas supply line
shall be paid one hundred percent (100 %) by the Developer. The Developer may choose
a qualified supplier of natural gas, whether public or private, to install natural gas
distribution mains and other service lines within the Subdivision; provided, however, that
the qualified natural gas supplier chosen shall agree (a) to facilitate the orderly
development of the Subdivision; (b) to facilitate the general health, safety and welfare of
the residents and property owners within the Subdivision; (c) to avoid duplication of
facilities; and (d) as a precondition to installing natural gas facilities, to obtain a natural
gas franchise from the City that includes jurisdiction by the City over the rates, terms and
conditions of natural gas service to the same extent the City regulates other qualified
natural gas suppliers franchised by the City.
I. Sidewalks. The City shall, as part of the paving district, design and install or
cause to be designed and installed a sidewalk along one side of Kellie Street in the
location shown on Exhibit "F" attached hereto and the cost of such sidewalk shall be
specially assessed against the Property Benefited in the same manner as the paving. All
other sidewalks shall be installed by the property owner of a lot within the Subdivision
prior to completion of any structure thereon. All sidewalks, whenever installed, shall be
constructed in accordance with the City sidewalk regulations and policies as they may
from time to time exist, and shall be maintained at property owners' expense.
The exact design, location and dimensions of and detailed plans and specifications for
each of the afore - described Improvements, as well as any Improvements in any street right -of-
way or public easement not funded by City, are subject to prior approval by the City in advance
of award of contract for construction or acquisition.
3. Construction Specifications and Contracts. All Improvements and construction
under said districts shall be made pursuant to the specifications of City. All contracts for such
Improvements shall be entered into by City and according to the terms and conditions approved
by City.
4. Financial Assurances; Design. The Developer and the City hereby agree that the
City shall not execute any contracts for the design of the Improvements until Developer has
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posted with City a surety bond, irrevocable letter of credit or other comparable instrument
acceptable to the City to cover the Entire Cost of the engineering design contract fee (the
"Guaranty Amount "). If Developer requests the City proceed with the construction of the
Improvements in accordance with this Agreement, such Guaranty Amount shall be applied to the
Costs of the Improvements as required in Section 6, below. If the Developer, at any time,
decides not to proceed with the construction of the Improvements under said districts as provided
for in this Agreement, then such Guaranty Amount shall be forfeited to the City for its costs and
expenses incurred in the design of the Improvements.
5. Financial Assurances: Construction. If Developer requests the City proceed with
the construction of the Improvements, the Developer hereby agrees, concurrently with such
request, to pay to the City or post a surety bond, irrevocable letter of credit or other comparable
surety instrument to be approved by the City, to cover twenty percent (20 %) of the entire
estimated costs of constructing the Improvements in accordance with the terms and conditions of
this Agreement. The additional twenty percent (20 %) of the entire estimated costs of
constructing the improvement shall be included in the Guaranty Amount. The City shall not
enter into or execute any contracts for the construction of said Improvements until and unless
Developer has increased the Guaranty Amount guaranteeing payment of twenty percent (20 %) of
the entire construction costs upon completion of the contracts and payment by City to the
contractors.
6. Payment of Guaranty Amount - Design and Construction. It is specifically agreed
between the parties that Developer shall be responsible for and pay upon completion of
construction under the contracts, a sum equal to twenty percent (20 %) of the actual construction
Costs for all Improvements including any change orders approved by the City from time to time.
In the event any change orders are submitted to City for approval, the Developer will be notified
by the City if such change orders to the construction contract(s) are required. In the event the
Guaranty Amount was paid in cash and exceeds twenty percent (20 %) of actual construction
Costs, City shall remit the balance to Developer. In the event the Guaranty Amount is less than
twenty percent (20 %) of the actual Construction Costs, the Developer shall, within fifteen (15)
days following notification by City of such deficiency, remit the balance to City. The remaining
eighty percent (80 %) of the actual construction Cost shall be paid by City to the contractors and
specially assessed against the property benefited as set forth in this Agreement. As estimates of
total project costs are revised or are actually determined, whether upon entering into construction
contracts or otherwise, the Guaranty Amount shall be adjusted accordingly. To the extent that
the Developer desires to reduce the Guaranty Amount evidenced by a surety bond, irrevocable
letter of credit or other comparable instrument acceptable to the City, the Developer agrees to
obtain a new instrument reflecting the revised Guaranty Amount within ten (10) days of such
adjustment. The form of the surety bond, irrevocable letter of credit or other comparable
instrument shall be approved by the City. Nothing contained herein shall prohibit the Developer
from seeking a contribution and /or reimbursement of its Guaranty Amount from any third -party
purchaser of any property located within the Subdivision based upon a separate agreement.
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7. Special Assessments. City shall levy special assessments against the Property
Benefited in the amount of the entire costs, after credit for the Guaranty Amount, as may be
adjusted, in accordance with the provisions of this Agreement. The City and Developer hereby
agree that the property within the Subdivision will be equitably assessed based upon the
following agreed formula:
(a) Lot 1 and Lot 2 shall each be assessed five percent (5 %) of the special
assessment portion of the Entire Costs of the Improvements.
(b) Lot 3 shall be assessed ten percent (10 %) of the special assessment portion
of the Entire Costs of the Improvements.
(c) Lot 4 and Lot 5 shall each be assessed forty percent (40 %) of the special
assessment portion of the Entire Costs of the Improvements.
(d) Lot 6 shall not be assessed any of these costs.
8. Interest Rate on Levy_ . In setting the rate of interest for special assessments levied
by the City, the City shall set the same at no more than two (2) percentage points above the
City's estimated bond rate at the time the property within the Subdivision is specially assessed.
9. Procedure for Levv ina Special Assessments. The City shall levy the special
assessments against the benefited property within one hundred and twenty (120) days from the
date that engineer certifies the completion of the Improvements being installed under the
improvement districts. The procedure for levying the special assessments shall be that set forth in
the City of Blair Municipal Code and the laws of the State of Nebraska.
10. Subordination of Interests. It is further agreed by all parties, including the
Developer and any other persons, including but not limited to any lending institutions which may
have or claim an interest in or have an encumbrance or lien upon the above - described real estate,
that said special assessments shall be a first lien on the real estate for all Improvements made
under such improvement districts, subject only to general real estate taxes levied and assessed
against said premises, and that all other interests, encumbrances or liens on said real estate or any
part thereof, of any parties to this Agreement shall be junior and inferior to the special
assessments of the City against said real estate.
11. City's Participation. City's participation in this Agreement and all of its
responsibilities and obligations hereunder shall be subject to any and all provisions imposed on
City by the statutes of the State of Nebraska and the Municipal Code of the City of Blair.
12. Payment of Special Assessments. So long as Developer is an owner of the
Property Benefited, or any portion thereof, the Developer hereby agrees that it will timely pay all
installments due for the special assessments made against the above - described real estate and
that it will not allow any installments due under said special assessments to become delinquent.
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13. Formation of Assessment Districts; Time of Completion. The City as of the date
of this Agreement has approved the final plat of HAYDEN PLACE FIRST ADDITION
consisting of 8 lots, a proposed public street and other Improvements. Pursuant to the terms of
this Agreement, City shall cause separate improvement districts to be created for the installation
of the public Improvements described herein for HAYDEN PLACE FIRST ADDITION. The
process for designing, bid process and construction of the Improvements shall commence within
a reasonable period of time after execution of this Agreement and shall be completed on or
before September 30, 2009, notwithstanding unforeseen delays due to weather, other causes
outside the control of the City, or the Developer not having all grading done by June 1, 2009.
14. Public Improvements; Maintenance Upon the completion of the Improvements
within the dedicated public right -of -ways and /or easements and the City's acceptance of the
engineer's certificate of completion thereof; the City shall be granted and the City shall accept
the control, maintenance and operation of such Improvements.
15. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the Developer, City, Two Rivers Bank, and each of their respective successors, representatives
and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year
first above written.
ATTEST: CITY OF BLAIR, NEBRASKA,
By: „6144
HAYDEN PLACE DEVELOPMENT, LLC, a Nebraska
limited liability company,
By:
TWO
Brenda Wheeler, City Clerk
ERS BANK
By: +.
Its: Authorize •c.- sent ti
p a vel
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ealph, Mayor City of ]lair