City Council ADDENDUM
Regular MeetingNew Ulm, MN · August 19, 2025
Agenda
ADDENDUM AGENDA
City Council Meeting
4:30 PM - Tuesday, August 19, 2025
City Hall Council Chambers
Motion to suspend the rules for action on the addendum.
Page
1. OLD BUSINESS
1.1. River Haven Addition Development Agreement 2 - 47
Offer a resolution approving a Development Agreement with River Haven
Housing, LLC for the property legally described in Exhibit A of the
Development Agreement and generally located at 1800 North Highland
Avenue and 1425-1625 Maplewood Drive; and authorize the City Manager and
Finance Director to execute the agreement on behalf of the City.
Staff Report City Council ADDENDUM - 19 Aug 2025 - Pdf
2. ADJOURNMENT
Page 1 of 47
City of New Ulm
Request for Council Action
City Council ADDENDUM - 19 Aug
Meeting: Agenda Section: OLD BUSINESS
2025
Resolution: YES Originating Department: Community Dev
Ordinance: N/A Prepared By: Dave Schnobrich
Attachments: 2 Presented By: Dave Schnobrich
Item: River Haven Addition Development Agreement
Proposed Action:
Offer a resolution approving a Development Agreement with River Haven Housing, LLC for the property legally
described in Exhibit A of the Development Agreement and generally located at 1800 North Highland Avenue and 1425-
1625 Maplewood Drive; and authorize the City Manager and Finance Director to execute the agreement on behalf of the
City.
Board/Commission Recommendation:
N/A
Overview:
The preparation and approval of a Development Agreement is one of the four steps necessary to secure a Planned
Unit Development (PUD) land use designation for a parcel of property.
To establish a PUD for this property, the following additional documents need to be approved:
1. Rezoning of the property from A-OS (Agricultural-Open Space) and R-1 (Single Family Residence District)
to Planned Unit Development (District No. 1) (PUD-1) was effective January 29, 2023.
o The Developer, River Haven Housing, LLC, has updated the General Development Plan (GDP) for the
property. This updated plan was approved by the City Council by Resolution No. 2025-87 adopted on
July 1, 2025, with the condition that the Developer work with the staff on enhanced landscaping of the
property to minimize tree loss on the property and to mitigate visual impacts from the neighboring
properties located on Maplewood Drive to the north of the property. In approving the GDP, the City
affirmed the zoning of the property as Planned Unit Development (District No. 1) (PUD-1).
2. The City approved the River Haven Addition plat with conditions by Resolution No. 2024-116, adopted on
November 19, 2024, attached hereto as Exhibit B.
3. Ordinance approving PUD Designation previously adopted No. 2022-067.
4. Development Agreement - Approval Pending.
The Developer of the project is Dean Madagan of River Haven Housing, LLC.
This is a continuation of the project that began in 2022. The project, in most respects, mirrors that development.
As in 2022, the Developer proposed the construction of 118 units of housing.
The project will consist of the following types of residential units:
o 6 townhomes on the east side of the property.
o 6 single family dwellings fronting Maplewood Drive.
o 5 twin homes fronting Maplewood Drive.
o 2 four-story apartment buildings with a total of 48 units in each building.
Right-of-way will be dedicated for the extension of Ryan Road to the south.
Access to the site will be from North Highland Avenue.
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The project will require the installation of new water and sanitary sewer services from Maplewood Drive to the 16
units fronting Maplewood Drive. The development agreement requires repaving of the street due to this
improvement.
The property totals 7.61 acres and is located east of North Highland Avenue and south of Maplewood Drive.
Phase 1 of the project will be the construction of the two apartment buildings. Phase 2 will be the six townhome
units. The single family and twin home units will be sold to private contractors.
Condition: The applicant/owner will pay the cost to record necessary documents with the Brown County
Recorder's Office.
Primary Issues/Alternatives to Consider:
N/A
Budgetary/Fiscal Issues:
N/A
Attachments:
River Haven Housing - Resolution
River Haven NU Add. Dev. Ag (v5-proposed final)
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RESOLUTION NO. 2025 - ___
Councilor, _________offered the following resolution and moved its adoption:
BE IT RESOLVED, that the City Council of the City of New Ulm, Brown County, Minnesota does
hereby approve a Development Agreement with River Haven Housing, LLC for the property
legally described in the attached Exhibit A.
The motion for the adoption of the foregoing resolution was duly seconded by Councilor _____
and, the roll being called, the following vote was recorded:
Voting Aye:
Voting Nay:
Not Voting:
Whereupon said resolution was declared to have been duly adopted this 19th day of August,
2025.
__________________________________
President of the City Council
Attest:
____________________________________
Finance Director
The above resolution approved August 19, 2025.
__________________________________
Mayor
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RESERVED FOR RECORDING INFORMATION
RIVER HAVEN ADDITION
SUPERSEDING DEVELOPMENT AGREEMENT
THIS AGREEMENT, made this _____ day of _________, 2025, by and between
River Haven Housing LLC, a limited liability company organized under the laws of the
State of Minnesota, (hereinafter referred to as “Developer”), and the City of New Ulm,
Minnesota, a Minnesota municipal corporation, (hereinafter referred to as “City”):
RECITALS:
A. The City is the fee owner of the Property which contains 7.61 acres and is legally
described on Exhibit A, attached hereto and incorporated herein by reference (the
“Property”). The City has agreed to sell the Property to the Developer pursuant
to the terms and conditions of that certain Purchase Agreement between City and
Developer dated July 1, 2025 (the “Purchase Agreement”); and
B. Previously, the Property was the site of a proposed development project consisting
of a mix of 118 residential housing units including apartments, townhomes and
twin homes by HHF Dreamville New Ulm, LLC (the “Previous Developer”),
which project received the following significant approvals from the City:
1. Approval of an amendment to the City’s Comprehensive Plan, changing
the use designation for the Property from Low Density Residential to High
Density Residential, approved by Resolution No. 2022-85, adopted on
September 6, 2022;
2. Approval of a General Development Plan for Dreamville NU Addition Plat
PUD by Resolution 2022-84, adopted on September 6, 2022; and
3. Approval of the Dreamville NU Addition Plat with conditions by
Resolution No. 2022-117, adopted on December 20, 2022;
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4. Adoption of Ordinance No. 2022-067, rezoning of the Property from A-OS
(Agricultural-Open Space) and R-1 (Single Family Residence District) to
Planned Unit Development (District No. 1) (PUD-1), on December 20, 2022,
with an effective date of January 29, 2023;
5. Approval of the Dreamville NU Addition Development Agreement by
Resolution No. 2022-116, adopted on December 20, 2022, which agreement
was executed by the parties on December 13, 2022, and recorded with the
Brown County Recorder’s Office as Document No. A439249 on January 4,
2023 (the “Original Agreement”).
C. The previous project proposed by the Former Developer did not take place, the
Dreamville NU Addition Plat was never recorded with the Brown County
Recorder’s Office, and the Property was subsequently acquired by the City on
January 17, 2024.
D. The City approved the River Haven Addition plat with conditions by Resolution
No. 2024-116, adopted on November 19, 2024, a copy of which is attached hereto
as Exhibit B (the “Plat”).
E. Pursuant to the Purchase Agreement and as part of the PUD approval process, the
Developer has updated the General Development Plan for the Property, which
updated plan was approved by the City Council by Resolution No. 2025-87,
adopted on July 1, 2025, with the condition that the Developer work with City staff
on enhanced landscaping of the Property to minimize tree loss on the Property
and mitigate visual impacts from the neighboring properties located on
Maplewood Drive to the north of the Property. In approving the General
Development Plan, the City affirmed the zoning of the Property as Planned Unit
Development (District No. 1) (PUD-1).
F. Pursuant to the approved General Development Plan, the Developer is proposing
to plat and develop the Property as a Planned Unit Development (“PUD”)
consisting of a mix of 118 units of residential housing, including six townhomes
on the eastern side of the Property; six single family homes, five twin homes
fronting Maplewood Drive with a total of 10 units; and two four-story apartment
buildings with a total of 48 units in each building.
G. Developer is proposing to construct the two, 48-unit apartment buildings as the
first phase of the project and the six townhomes as phase two of the project.
Developer is further proposing sell the twin home and single-family home lots to
private developers or individuals.
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H. The parties hereto wish to provide for the orderly use and development of the
Property including the installation of public and private infrastructure to serve the
Property.
AGREEMENT
NOW, THEREFORE, it is hereby agreed by and between the undersigned as
follows:
1. Definitions.
In this Agreement, unless a different meaning clearly appears from the context,
the following terms, when capitalized, shall have the meaning set forth in this Section 1:
“Agreement, Original” also known as the Original Agreement that means the
Agreement dated December 13, 2022, as described in Recital B.3 above.
“Agreement, Superseding” also known as the “Superseding Agreement” or
“Agreement” means this Agreement.
“City” means the City of New Ulm, Minnesota.
“City Code” means the City Code of Ordinances for the City of New Ulm,
Minnesota, inclusive of Appendix A, the Zoning Ordinance of the City of New Ulm.
“Developer” means River Haven Housing LLC, a limited liability company
organized under the laws of the State of Minnesota.
“General Development Plan” means the plan required by Section 7.9.J of
Appendix A to the City Code that establishes the requirements and standards that will
apply to a PUD project.
“Plat” means the River Haven Addition final plat, approved with conditions by
the New Ulm City Council No. 2024-116, adopted on November 19, 2024, a copy of which
is attached hereto as Exhibit B.
“Property” means that certain parcel of real property located in the City of New
Ulm, Brown County, Minnesota, which contains 7.61 acres and is legally described on
Exhibit A.
“PUD” means a Planned Unit Development pursuant to Section 7.9 of Appendix
A to the City Code.
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“Project” means the development of the Property as a PUD consisting of a mix of
118 units of residential housing, including six townhomes on the eastern side of the
Property; six single family homes, five twin homes fronting Maplewood Drive with a
total of 10 units; and two four-story apartment buildings with a total of 48 units in each
building, private surface and subsurface storm water collection, detention, storage and
drainage systems designed and constructed in accordance with local, state and NPDES
regulations to collect, detain, store and dispose of storm water from the Property,
adjacent rights-of-way, and similarly situated properties, together with the Public
Improvements, all pursuant to the approved General Development Plan.
“Project Improvements” shall have the meaning given in Section 5.b below.
“Project Plans” means the plans and specifications identified in Section 3 below.
“Public Improvements” means the installation of sanitary sewer and water
services in Maplewood Drive as more particularly described in Section 8 below,
installation of concrete sidewalks on the south side of Maplewood Drive, resurfacing of
Maplewood Drive, removal of existing curb cut and installation of concrete curb and
gutter on North Highland Avenue, unless otherwise approved by the City Engineer as
part of the Project Plans, installation of a concrete sidewalk pursuant to the City’s
standard specifications in the location of a permanent easement to be granted between
Lots 10 and 11 as depicted on the Plat, and other public improvements as shown on the
Project Plans such as boulevard trees.
“Purchase Agreement” means that certain Purchase Agreement between City
and Developer dated July 1, 2025.
“State” means the State of Minnesota.
2. Easements.
a. City shall, by reason of this Agreement, have a temporary easement
over, upon and under the Property to enter into and upon the same for
the observation and inspection of Developer’s construction and
installation of Public Improvements to serve the Property as well as
adjacent properties. Such easement shall cease upon the completion of
construction of all Public Improvements necessary to serve the Property.
b. The Developer has agreed to dedicate public easements to the City
as depicted on the Plat.
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c. The Developer shall additionally execute a permanent easement
agreement in favor of the City, on behalf of the public, for pedestrian
access between Lots 10 and 11 as depicted on the Plat so as to provide
pedestrian access from Lot 17 to the public sidewalk on Maplewood
Drive, in the same location as the 40’ wide permanent utility easement
depicted and dedicated to the public on the Plat.
d. The Developer shall dedicate such other utility easement(s) to the
City as may be identified by New Ulm Public Utilities or City in order to
provide utility services to the Property.
e. Except for fences, no fixed structures shall be placed within or upon any
easement area designated upon the Plat of the Property.
f. The City shall be entitled to enter into and upon each easement area
designated upon the Plat of the Property at such times and for such
purposes as the City deems necessary and appropriate. The City shall
also be entitled to make such improvements, modifications and
alterations within the easement areas as are deemed by the City to be
necessary and appropriate. The City may remove any items as may be
required for such improvements, modifications, and alterations within
the permanent easement areas, and shall not be responsible for its
replacement. City shall otherwise restore the soil and any grass to its
condition prior to the commencement of such work.
3. Project Plans.
The Property shall be developed in accordance with the following plans where
applicable. The plans shall not be attached to this Agreement. If the plans vary from the
written terms of this Agreement, the written terms of this Agreement shall control. The
plans are:
a. Plan A – Plat;
b. Plan B – General Development Plan
c. Plan C – Stormwater Management Plan / SWPPP
d. Plan D – Civil Plans (including site, grading, utility plans and traffic
control plan.
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e. Plan E – Final Construction Plans and Specifications for Public
Improvements
f. Plan F – Landscape Plan
g. Plan G – Building Plans
h. Plan H – Photometric Plan
The foregoing plans and specifications shall be prepared by a competent registered
professional engineer and architect, licensed in the State of Minnesota, that has been
engaged by the Developer and shall be subject to the City’s review and approval. The
Public Improvements shall be installed in accordance with the City approved plans for
such improvements and the policies, rules, regulations, standards and ordinances of the
City.
4. Permits and Approvals.
a. Final Plat Approval. The Developer has received final approval for
the Plat subject to certain conditions, including that the Developer enter
into this Superseding Development Agreement with the City. The City’s
approval of the Plat or this Agreement does not include approval of
building permits for any structures to be constructed within the Property.
The Developer must submit and the City must approve building plans
prior to the issuance of building permits for structures within the
Property.
b. Other approvals. The Developer shall obtain or require its
contractors and subcontractors to obtain all necessary and required
permits for the Project from the Minnesota Pollution Control Agency
(MPCA), Minnesota Department of Health (MDH), and all other agencies
and governmental authorities with jurisdiction over the Project before
proceeding with construction of the Project. Copies of these permits shall
be provided to the City Engineer, and may include but are not limited to
the following:
• Federal Aviation Administration (“FAA”) for determination of no
hazard to aviation safety at the New Ulm Municipal Airport
pursuant to FAA Form 7460
• MPCA Construction Stormwater Permit
• City stormwater permit
• MDH water main extension permit
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• MPCA sanitary sewer extension
• City right-of-way permit
• Wetlands permits as applicable
• DNR for Dewatering as applicable
• City of New Ulm for Building Permits
• Other permits as applicable
The Developer or its engineer shall schedule a pre-construction meeting
for the Project Improvements with all the parties concerned, including
City staff, to review the program for the construction work.
5. Development of the Property.
a. Right to Proceed; Conditions Precedent. Unless separate written
approval has been given by the City, within the Property, the Developer
may not grade or otherwise disturb the earth, remove trees, construct
sewer lines, water lines, streets, utilities, public or private improvements,
or any buildings within the Property until all of the following conditions
have been satisfied:
i. This Agreement has been fully executed by both parties and filed
with the Finance Director. This Agreement shall be recorded by the
City at the Developer’s Cost within one year following City Council
approval of this Agreement;
ii. The Developer has closed on its purchase of the Property from the
City;
iii. The security required in Section 9 below has been received by the
City;
iv. The Plat has been recorded with the Brown County Recorder's
Office;
v. The FAA has determined, pursuant to FAA form 7460, that the
structures included in the Project will not pose a hazard to aviation
safety at the New Ulm Municipal Airport;
vi. The site plan for the project on the Property has been approved by
the Community Development Department and the plans and
specifications for the Public Improvements related thereto have been
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approved and signed by the City Engineer with such conditions as
required by the City Code;
vii. The construction plans and other such plans as required by the City
have been approved and signed by the City Engineer;
viii. A certificate of public liability and property damage insurance as
described in this Agreement has been filed with the Finance Director;
and
ix. The Community Development Director has notified Developer that
all conditions have been satisfied and that the Developer may
proceed.
b. Developer shall construct the Project, at its sole cost and expense and
subject to the terms and conditions contained herein, including the
following private improvements (the “Project Improvements”) in
compliance with City-approved plans and specifications prepared in
accordance with all policies, rules, regulations, standards, specifications
and ordinances of the City and as shown on the General Development
Plan, final construction plans and summarized below:
i. Private Surface and Subsurface Storm Water Facilities (pipe, rain
gardens, and similar improvements);
ii. Aggregate base, grading, concrete curb and gutter, concrete
sidewalks, concrete driveway pavement, bituminous surfacing;
iii. Sanitary sewer and water end services;
iv. Grading, Drainage and Erosion Control;
v. Utilities (gas, electric, cable, telephone, etc.);
vi. Soil Correction;
vii. Landscaping Required by the Zoning Ordinance (Chapter 10 of
Appendix A to the New Ulm City Code), and as additionally agreed
upon by Developer and the Community Development Department
to minimize tree loss on the Property and mitigate visual impacts
from the neighboring properties located on Maplewood Drive to the
north of the Property;
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viii. Lighting Equipment, Facilities and Photometrics Required by the
Zoning Ordinance (Chapter 10 of Appendix A to the New Ulm City
Code);
ix. Parking Improvements Required by the Zoning Ordinance (Chapter
10 of Appendix A to the New Ulm City Code);
x. Surveying and Monuments Required by Minnesota Statutes;
xi. A mix of structures containing 118 units of residential housing,
including six townhomes; six single family homes, five twin homes
with a total of 10 units; and two four-story apartment buildings with
a total of 48 units in each building, pursuant to the General
Development Plan;
xii. Public Improvements;
xiii. Miscellaneous facilities or other elements defined by the guiding
documents.
c. The Property and Project Improvements constructed thereon shall
be subject to all subdivision, zoning and building regulations established
by the City’s City Code, and in its zoning regulations found in Appendix
A to the City Code, as except insofar as variances or conditional use
permits may be properly applied for and approved, and except as
permitted by the approved General Development Plan for Planned Unit
Development District No. 1 (PUD-1), as the same may be amended..
d. All driveways within the rights-of-way of any street within the
Property as depicted on the final Site Plan for the Property as approved
by the City hereunder.
e. The Developer shall complete construction of the Public
Improvements and commence construction of the first phase of the Project
Improvements consisting of the two, 48-unit apartment buildings and
improvements related thereto within two years after the City’s approval
of the Developer’s updated General Development Plan for the Property,
which was given on July 1, 2025 as described in Recital E above. For the
purposes of this paragraph, commencement of construction shall mean
the City’s issuance of a building permit for the specified improvements.
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f. The Developer shall be solely responsible for the costs of
constructing the required Project Improvements. The costs of
constructing the Project Improvements shall include the actual
construction costs, the actual engineering, administration and any legal
costs contracted for by or on behalf of the Developer related thereto, and
all other costs relating to the construction of the Project Improvements.
g. The Developer hereby covenants and agrees that Developer will not
permit or allow any mechanic’s or materialman’s liens to be placed on the
City’s interest in any property that is the subject of the Project or this
Agreement during the term hereof. Notwithstanding the previous
sentence, however, in the event any such lien shall be so placed on the
City’s interest, the Developer shall take all steps necessary to see that it is
removed within thirty (30) business days of its being filed; provided,
however, that the Developer may contest any such lien provided the
Developer first posts a surety bond, in favor of and insuring the City, in
an amount equal to 125% of the amount of any such lien.
h. The Developer shall be required to provide vehicle and pedestrian
access from the parking lot serving the apartment buildings on Lot 17 as
depicted on the Plat to Ryan Road after the completion of roadway
improvements in the platted right-of-way for the extension of Ryan Road.
i. While not required, the City has requested that the Developer loop
the water system serving the property by installing a main within the
platted Ryan Road right-of-way prior to development of roadway
improvements therein. The Developer acknowledges and agrees that any
future water quality issues on the Property that arise from an un-looped
system shall be the responsibility of the Developer to address at
Developer’s and Developer’s successors’ and assigns’ sole cost and
expense. Any improvements or changes to the water system are subject to
the approval of the City Engineer.
j. The Developer shall comply with the regulations set forth in the
Minnesota State Fire Code.
6. Site, Grading, Utility Plan and Implementation.
a. The Property shall be graded in accordance with the approved
grading development and erosion control plan. The plan shall conform to
applicable City of New Ulm requirements and specifications, City Code
and applicable law. Within thirty (30) days after completion of the
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grading, the Developer shall provide the City with a certificate of
survey/"record" grading plan certified by a registered land surveyor or
engineer that all ponds, swales, and ditches have been constructed on
public easements or land owned by the City. The certificate of
survey/"record" plan shall include field verified elevations of the
following: i) cross sections of ponds; ii) location and elevations along all
swales, wetlands, wetland mitigation areas if any, ditches, locations and
dimensions of borrow areas/stockpiles; and iii) lot corner elevations and
building foundations. The Developer shall furnish the City Engineer a
certificate of survey (as constructed survey) of the Property after site
grading is complete. Final grading shall substantially comply with the
approved grading plan.
b. Prior to initiating site grading, the erosion and sediment control
measures included in the SWPPP shall be implemented by the Developer
and inspected and approved by the City Engineer. Site inspections to
ensure compliance with the SWPPP shall be conducted by the Developer
or his or her designee on a weekly basis, at a minimum, per MPCA
requirements. The City Engineer or his/her designee will perform
periodic site inspections pursuant to City Storm Water Permit
requirements. Erosion and sediment control practices must comply with
the Minnesota Pollution Control Agency’s (MPCA) Best Management
Practices and applicable MPCA NPDES permit requirements for
construction activities and the Developer’s SWPPP. The City may impose
additional erosion and sediment control requirements if they would be
beneficial in the City’s reasonable judgment. The parties recognize that
time is of the essence in controlling erosion. If the Developer does not
comply with the erosion control measures in the SWPPP or
supplementary instructions received from the City Engineer, the City may
take such action as it deems reasonably appropriate to control erosion.
The City will endeavor to notify the Developer at least 24 hours in
advance of any proposed action, but failure of the City to do so will not
affect the Developer's and City's rights or obligations hereunder. The
Developer shall be responsible for the actual costs incurred by the City in
conducting such work. No development will be allowed and no building
permits will be issued unless the Plat and Project Plans for the Property,
as applicable, are in full compliance with the erosion control measures in
the approved SWPPP.
c. The Developer shall secure all rights and easements necessary or
appropriate for the drainage of storm water from the Property to public
waterways.
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d. The Developer is responsible for the cost of installing all private
utilities of any nature or kind whatsoever such as gas, electric, phone,
cable, etc. The Developer shall contact the utility companies to coordinate
the installation of the utilities. All utilities shall be installed underground.
The City Engineer must approve of the final location for all private
utilities, which approval shall not be unreasonably withheld or delayed.
Joint trenching of the utilities is strongly encouraged. All utilities must be
located in public rights-of-way, within drainage and utility easements or
as otherwise shown on the Project Plans.
7. Stormwater Facilities.
In order to provide stormwater management and control, to meet the City’s
stormwater permitting requirements, City Code and state law and regulations, as
applicable, and to promote the water quality and volume control to the City's stormwater
system and water bodies, the Developer and the City agree that it is reasonable for the
City to require the Developer and all subsequent owners of the Property to construct,
inspect, operate, repair, maintain and replace, at the Developer’s cost and expense,
required stormwater facilities. Developer and its successors’ and assigns’ shall be
responsible for the installation of and ongoing operation, repair, maintenance and
replacement of such stormwater facilities as required by applicable City Code and law at
the Developer’s and its successors’ and assigns’ cost and expense.
8. Public Improvements.
a. The Developer shall construct and install the Public Improvements
in compliance with City-approved plans and specifications prepared in
accordance with all policies, rules, regulations, standards, specifications
and ordinances of the City and as shown on the final construction plans
and summarized below:
i. Maplewood Drive: Developer shall install individual sanitary sewer
and water services from within the Maplewood Drive right-of-way
to Lots 1-16, Block 1, New Ulm River Haven Addition as approved
by the City Engineer on the site Civil Plans. Any sewer and water
services, and any private mains that are branched off from existing
mains in Maplewood Drive shall be the full responsibility of the
Developer for future maintenance and repairs. Developer shall
resurface the entire section of Maplewood Drive affected
by the above-referenced installation of sewer and water services
within the Maplewood Drive right-of-way with a bituminous
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surface. When referencing the "entire section of Maplewood Drive
affected" (above), the parties intend for the resurfacing to cover the
entire roadway in the affected area and not be limited resurfacing
individual disturbed patches within the roadway. Developer and its
contractor(s) shall otherwise take all reasonable precautions to
minimize the disturbance to Maplewood Drive. Developer shall
additionally install concrete sidewalks on the south side of
Maplewood Drive from North Highland Avenue to the existing
sidewalk at Ryan Road. Developer shall install other public
improvements as shown on the Project Plans such as boulevard
trees.
ii. North Highland Avenue: Developer shall remove the existing curb cut
and install concrete curb and gutter on North Highland Avenue,
unless otherwise approved by the City Engineer as part of the Project
Plans, and other public improvements as shown on the Project Plans
such as boulevard trees.
b. The Public Improvements shall be constructed and installed in
accordance with the latest versions in place at the time of this Agreement
of the City Code, zoning ordinance and subdivision regulations, City
standard specifications for utilities and street construction, and the City’s
engineering guidelines and standard detail plates, as applicable. The
Developer shall submit plans and specifications that have been prepared
by a registered professional engineer licensed in the State of Minnesota to
the City for approval by the City Engineer, which approval shall not be
unreasonably withheld or delayed. The Developer shall provide field
inspection and soil testing personnel from a qualified engineering firm,
under the direct supervision of a professional engineer in the State of
Minnesota. The Developer shall provide inspection services for the
Public Improvements at their expense, to assure an acceptable level of
quality control for the construction of all Public Improvements and certify
that the construction work meets the City’s requirements, specifications,
standards and approved plans. In addition, the Developer's engineer will
be required to certify that the construction work meets the approved City
requirements, specifications, and standards as a condition of City
acceptance and provide record drawings for all Public Improvements.
The Developer, its contractors and subcontractors, shall follow all
instructions received from the inspectors and engineers to the extent
applicable to comply with the approved plans and specifications, or
applicable City Code or statutes for which the inspectors have
jurisdiction. The Developer's engineer shall provide for on-site project
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management. The Developer's engineer is responsible for design changes
and contract administration between the Developer and the Developer's
contractor.
c. All labor and work shall be done and performed in the best and most
workmanlike manner and in conformance with the approved plans and
specifications. No material deviations from the approved plans and
specifications will be permitted unless approved in writing by the City
Engineer, which approval shall not be unreasonably withheld or delayed.
The Developer agrees to furnish to the City a list of contractors being
considered for retention by the Developer for the performance of the
Public Improvements work required by this Agreement. If applicable, the
contractor(s) shall have experience in the installation of municipal water
and sanitary services and mains; shall demonstrate the successful
completion of at least three such installations and municipal acceptance
thereof; and shall be able to obtain the requisite performance and
payment bonds for the purchase and installation of the minimum Public
Improvements required hereby. The Developer shall not do any work or
furnish any materials not covered by the plans and specifications and
special conditions of this Agreement, for which reimbursement is
expected from the City, unless such work is first ordered in writing by the
City Engineer as provided in the plans and specifications.
d. The Developer shall replace or repair any damage or destruction to
any property or improvements located on City land or in City streets,
boulevards and rights-of-way, or adjacent private property not owned by
Developer, caused by Developer, or its contractors and subcontractors,
during the construction of the required Public Improvements and the
Project. Any contaminated soils encountered during the construction of
the Public Improvements and development on the Property shall be
addressed as set forth in a Response Action Plan to be approved by the
MPCA or other applicable agency having jurisdiction.
e. The Developer shall be solely responsible for the costs of
constructing the required Public Improvements, including the actual
construction costs, the actual engineering costs, administration and any
legal costs contracted for by or on behalf of the Developer related thereto,
and all other costs relating to the construction of the Public
Improvements.
f. The City will not issue a building permit, and no structure may be
built upon the Property, nor may any individual platted lot or other
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portion of the Property be conveyed to any third party, until all necessary
Public Improvements as required by this Agreement, the New Ulm City
Code or the current applicable Building Code have been installed and
accepted by the City.
g. Upon completion of the Public Improvements work and
construction required by this Agreement and acceptance of Public
Improvements by the City, the Public Improvements shall become City
property without further notice or action upon completion and City
acceptance thereof unless noted otherwise within this Agreement. Prior
to acceptance of the Public Improvements by the City, the Developer must
furnish the following affidavits:
i. Contractor’s Certificate;
ii. Engineer’s Certificate;
iii. Land Surveyor’s Certificate; and
iii. Developer’s Certificate;
certifying that all construction has been substantially completed in
accordance with the terms of this Agreement. The requisite forms will be
furnished by the City of New Ulm and are attached hereto as Exhibit C.
Upon receipt of the required affidavits, the City Engineer will accept the
completed Public Improvements. Within thirty (30) days after the
completion of the Public Improvements, the Developer shall supply the
City with a complete set of reproducible "record" plans, an electronic file
of the "record" plans in a format acceptable to the City Engineer (e.g.,
AutoCAD format, DWG, .DXF or a .PDF file), and one complete set of
hard copy "record" plans, of the Public Improvements all prepared in
accordance with applicable City standards. Upon receipt of these
documents, and the warranty documents specified in this Agreement, the
City Engineer will certify acceptance of the completed Public
Improvements.
h. If this Agreement is terminated for any reason the City shall have no
obligation to construct the Project or Public Improvements.
9. Security.
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a. As a precondition to Developer installing any portion of the Public
Improvements, and to guarantee compliance with the terms of this
Agreement, payment of the costs of all Public Improvements, and
construction of all Public Improvements, the Developer shall furnish
the City, prior to or simultaneously with the execution and delivery of
this Agreement, with a letter of credit in substantially the form
attached hereto as Exhibit D or a City approved alternate form from a
bank or lending institution in the amount of 125% of the estimated
Public Improvement costs to be constructed for such applicable phase
of the Project (the “Security”). The estimated Public Improvement costs
from which the Security will be calculated for each phase of the Project
shall be subject to the review and approval of the City Engineer and
upon approval shall be attached to this Agreement as Exhibit E.
The bank shall be subject to the approval of the City Manager, which
approval shall not be unreasonably withheld or delayed. The Security
may be in the form of annually renewable letters of credit. Individual
Security instruments may be for shorter terms provided they are
replaced at least thirty (30) days prior to their expiration. The City may
draw down the Security, upon fifteen (15) days’ written notice and
opportunity to Developer, for any violation of the terms of this
Agreement or if the Security is allowed to lapse prior to the end of the
required term, by presenting the bank/escrow agent with a written
demand or an affidavit signed by the City Manager or the City
Manager's designee attesting to the City's right to draw down and
receive funds under the Security. If the required Public Improvements
are not completed at least thirty (30) days prior to the expiration of the
Security, the City may also draw the Security down. If the Security is
drawn down, the proceeds shall be used to cure the default. Upon
receipt of proof reasonably satisfactory to the City Engineer that work
has been completed and financial obligations to the City have been
satisfied, with City Engineer approval, not to be unreasonably withheld
or delayed, the Security may be reduced from time to time by an amount
equal to ninety percent (90%) of the financial obligations that have been
satisfied. Ten percent (10%) of the amounts certified by the Developer's
engineer shall be retained as Security until: a) all Public Improvements
have been completed, b) iron monuments for lot corners have been
installed, c) all financial obligations to the City have been satisfied, d)
the required "record" plans have been received by the City, e) a warranty
security is provided as specified herein, f) the Public Improvements are
accepted by the City Engineer as provided herein, and g) if required by
the City Code, a title insurance policy indicating that the improvements
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are free and clear of any and all liens and encumbrances. The City
standard specifications for utilities and street construction outline
procedures for Security reductions, and reductions in the letter of credit
shall be considered only after underground utilities are tested and
found to be satisfactory and again after the base bituminous layer has
been placed.
b. During the installation of any Public Improvements by Developer,
Developer shall employ the services of a licensed professional engineer
to oversee and supervise the inspection of the installation of the
improvements to ensure that the same are installed in accordance with
industry standards and the plans approved by the City as provided
herein. Such engineer shall report weekly to the City Engineer on the
progress and performance of such improvements and shall, upon
completion of the installation of such improvements, certify to the City
as provided herein that such improvements have been fully and
completely installed in accordance with the City approved plans. The
Developer shall also provide to the City a full set of as-built plans,
transmitted electronically, within ninety (90) days after City acceptance
of the Public Improvements, signed by a licensed engineer. The
electronic files shall be in an AutoCAD 2016 or newer and PDF format.
The Developer shall be responsible all costs for the development of the
as-built plans.
c. During installation of, and upon completion of Developer’s
installation of any Public Improvements, the City shall be entitled, upon
reasonable notice and at reasonable times, to inspect the same to ensure
that such Public Improvements are made in accordance with the plans
and specifications approved by the City as provided herein. To the
extent that such improvements are deemed by the City to be deficient in
any manner, Developer shall, following receipt of written notice of such
deficiencies in reasonable detail, promptly and completely rectify all
such deficiencies to the reasonable satisfaction of the City.
10. Warranty.
The Developer warrants all Public Improvements required to be constructed by it
pursuant to this Agreement against poor material and faulty workmanship. The warranty
period for streets and utilities is two (2) years and shall commence following completion
and final written acceptance of the work by the City Engineer. The required warranty
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period for sod, trees, and landscaping is two growing seasons following installation. The
Developer shall post a security in the form of either a) a warranty/maintenance bond for
100% of the cost of the Public Improvements, or b) a letter of credit or cash escrow for
25% of the amount of the original cost of the Public Improvements as warranty for the
Public Improvements prior to the City authorizing the commencement of work on the
Public Improvements. Any retainage from the Security identified in this Agreement may
also be used to pay for warranty work. The City standard specifications for utilities and
street construction identify the procedures for final acceptance of streets and utilities.
11. Special Assessments.
Developer acknowledges that the Property received special benefit from
previously installed public improvements (including grading, aggregate base, concrete
curb and gutter, concrete driveways, concrete sidewalks, boulevard trees, bituminous
surfacing, and street lighting, sanitary sewer, storm sewer piping, ponds and systems,
water mains, and water and sanitary sewer end services) to North Highland Avenue in
2009, and Maplewood Drive in 2015, for which this Property has been assessed. Pursuant
to the Purchase Agreement, Developer is responsible for paying the outstanding special
assessment amounts on the Property on or before closing on the Developer’s acquisition
of the Property from the City.
12. Additional Development Charges.
a. Prior to the installation of any utility systems to serve the Property,
Developer shall pay to the New Ulm Public Utilities its then current
charges for such installation.
b. The owner of the Property shall be responsible for all costs associated
with the repair or replacement of any of the Public Improvements
damaged during the development of such Property. Upon receipt of
written notice of such damage, based upon the City’s reasonable
determination of damage to such Public Improvements, the owner shall
cause such repairs to be made within six (6) months of receipt of such
notice. To the extent that such repairs are not made as and when required
hereby, the City may cause the same to be repaired or replaced and the
entire cost thereof will be assessed against the Property.
c. The Developer or its successors shall pay a cash contribution in an
amount equal to the fee per dwelling unit then in effect in the City’s Fee
Schedule at the time of issuance of a building permit for construction on
individual lots in satisfaction of the City's park dedication requirements.
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d. In the event that the City establishes a storm water improvement
district pursuant to Minnesota Statutes, Section 444.17, or other applicable
authorization, to serve the Property and other properties in the vicinity,
Developer acknowledges that the Property may be assessed or otherwise
charged for a portion of the cost of constructing, maintaining, repairing
and replacing storm water systems to serve the Property. The City may
levy a tax on all taxable property within the district in an amount
necessary to finance the cost of the improvement, including maintenance
and to pay the principal and interest on obligations issued pursuant to
Minnesota Statutes, Section 444.19.
e. In addition to the charges and special assessments referred to herein,
other charges and special assessments may be imposed such as but not
limited to sewer availability charges ("SAC"), City water connection
(“WAC”) charges, City sewer connection charges, City storm water
connection charges, building permit fees and plat review fees, which
shall be paid by Developer.
13. Responsibility for Costs.
a. Except as otherwise specified herein, the City shall not be obligated
to pay Developer or any of its agents or contractors for any costs incurred
in connection with the construction of the Public Improvements or Project
improvements or the development of the Property, including but not
limited to, all costs of persons and entities doing work or furnishing skills,
tools, machinery, equipment and materials; insurance premiums; legal,
planning and engineering fees; the preparation and recording of this
Agreement and all easements and other documents relating to the Plat
and the Property, as applicable; all traffic studies, environmental
assessments and/or engineering and other studies and reports; all
permits and approvals; and all City’s actual, out-of-pocket costs incurred
in connection with approval and acceptance of the Plat. Developer agrees
to defend, indemnify, and hold the City and its mayor, council members,
employees, agents and contractors harmless from any and all claims of
whatever kind or nature and for all such costs, damages or expenses
which the City may pay or incur in consequence of such claims, including
reasonable attorneys’ fees, which may arise as a result of Plat approval,
the Project, this Agreement, the construction of the Public Improvements
or Project Improvements, the development of the Property or the acts of
Developer, and its employees, agents, contractors or subcontractors, in
relationship thereto, except as may result from the negligence or
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intentional misconduct of the City or its officers, employees, agents or
contractors.
b. The Developer shall reimburse the City for reasonable costs incurred
in the enforcement of this Agreement, including engineering and
attorneys' fees.
c. The Developer shall pay in full all bills submitted to it by the City for
obligations incurred under this Agreement within 30 days of the date of
the City’s invoice to Developer. If Developer fails to pay a required bill,
then after providing the Developer with at least fifteen (15) days’ prior
written notice, the City may draw on the Security or alternatively declare
the same an event of default, and the City may thereafter assess and
certify such unpaid charges to the Brown County Auditor-Treasurer for
collection in like manner with property taxes on the Property, or the City
may take any other actions as may be available under this Agreement, at
law, or in equity. Bills not paid within sixty (60) days shall accrue interest
at the rate of eight percent (8%) per year.
14. Wetland Mitigation.
No wetland mitigation is planned for the site. The Developer is responsible for
any undisclosed mitigation on the Property, and will be required to submit any necessary
security, as defined by the City, should subsequent wetlands be identified.
15. Airport Use Limitations.
Developer shall limit development and use of the Property as may be necessary to
conform with the design and use limitations of the Airport Restrictions and Airport
Layout Plan.
a. Prior to the commencement of construction of the Project, Developer
shall provide to the City a copy of any permit the Developer may be
required to secure from the FAA permitting development or use of the
Property for the Project or any other development.
b. Developer shall ensure (i) during the construction of the Project and
the Public Improvements, and (ii) at all times during the operation of the
Project or development and use of other portions of the Property that no
structures, signs, machinery, equipment or materials shall penetrate into
or otherwise obstruct or interfere with any portion of any airport
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restricted ground or air space unless authorized by the appropriate
regulatory agency.
c. Developer shall ensure (i) during the construction of the Project and
the Public Improvements, and (ii) at all times during the operation of the
Project or development and use of other portions of the Property that all
lighting of structures, parking areas or other grounds on the Property
complies with applicable FAA standards and regulations and Airport
Restrictions.
d. For the purposes of this Section, “Airport Restrictions” means New
Ulm Municipal Airport (i) Clear Zone and Transitional Easements
recorded with the Brown County Recorder as Document Nos. 231113 and
238846; (ii) Airport Zoning Ordinance recorded with the Brown County
Recorder as Document No. 7439021 ; and (iii) the restrictions set forth in
the City of New Ulm Airport Layout Plan as finally approved and
adopted by the Federal Aviation Administration on May 25, 2023, on file
in the Office of the City Engineer as of the date hereof or as amended.
16. Construction Management.
During construction of the Public Improvements, Project Improvements and the
Project, the Developer and its contractors and subcontractors shall minimize impacts
from construction on the surrounding neighborhood, as follows:
a. Definition of Construction Area. The limits of the Project Area shall
be as shown in the City approved Grading, Drainage and Erosion
Control Plan and shall be demarcated with construction fencing
approved by the City Engineer. Any grading, construction or other work
outside this area requires approval by the City Engineer and the affected
property owner.
b. Parking and Storage of Materials. Adequate on-site parking for
construction vehicles and workers must be provided on-site to the
maximum extent possible or provisions must be made to have workers
park off site and be shuttled to the Project Area. Construction and worker
vehicles shall not be stored overnight in the public right’s-of-way. No
fill, excavating material or construction materials shall be stored in the
public right-of-way.
c. Hours of Construction. Hours of construction, including moving of
equipment shall be limited to the hours between 7 a.m. and 7 p.m. on
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weekdays and 9 a.m. and 7 p.m. on weekends or as otherwise provided
in the City Code.
d. Site Maintenance. Developer shall ensure that its contractor
maintains a clean work site. Measures shall be taken to prevent debris,
refuse or other materials from leaving the site. Construction debris and
other refuse generated from the Project shall be removed from the site in
a timely fashion and/or upon the request by the City Engineer. After
Developer has received at least a forty-eight (48) hour verbal notice, the
City may complete or contract to complete the site maintenance work at
Developer’s expense. Any trash that leaves the site shall be immediately
picked up and disposed of. Refuse containers shall be covered to prevent
trash from being blown off site.
e. Project Identification Signage. Project identification signs shall
comply with the City Code requirements.
17. Developer’s Default.
In the event of default by the Developer as to any of the work to be performed by
it hereunder or the failure to comply with all terms and conditions of this Agreement,
which is not cured following 30 days’ written notice to Developer, the City may, at its
option, take one or more of the following actions:
a. Perform the work and the Developer shall promptly reimburse the
City for any expense incurred by the City, provided the Developer, except
in an emergency as determined by the City, is first given notice of the
work in default, not less than forty-eight (48) hours in advance. When the
City does any such work, the City may, in addition to its other remedies,
assess the cost in whole or in part for collection with the property taxes
on the Property;
b. Obtain an order from a court of competent jurisdiction requiring
Developer to perform its obligations pursuant to the terms and provisions
of this Agreement;
c. Obtain an order from a court of competent jurisdiction enjoining the
continuation of an event of default;
d. Halt all development work and construction of improvements until
such time as the event of default is cured;
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e. Withhold the issuance of a building permit or permits or certificates
of occupancy and/or prohibit the occupancy of any structure(s) for which
permits have been issued until the event of default has been cured;
f. Draw upon and utilize the Security to cover the City’s costs to correct
the default, the costs to complete any unfinished Public Improvements
and/or the costs to enforce this Agreement; or
g. Exercise any other remedies which may be available to it at law or in
equity.
In addition to the remedies and amounts payable as set forth or permitted above, upon
the occurrence of an event of default by Developer, the Developer shall pay to the City
all fees and expenses, including reasonable attorney’s fees, incurred by the City as a result
of the event of default, whether or not a lawsuit or other action is formally taken.
18. Expiration of Agreement.
This Agreement shall remain in effect until such time as the Developer shall have
fully performed all of its duties and obligations under this Agreement. Upon the written
request of the Developer and upon the adoption of a resolution by the City Council
finding that the Developer has fully complied with all the terms of this Agreement and
finding that the Developer has completed performance of all Developer’s duties
mandated by this Agreement, the City shall issue to the Developer on behalf of the City
an appropriate Certificate of Compliance/Completion. Upon issuance of the Certificate
of Compliance/Completion by the City, this Agreement shall terminate.
19. Termination; Conditions Precedent.
a. If Developer fails to acquire fee simple title to all of the Property
within one (1) year after approval of this Agreement by the City Council,
this Agreement shall terminate and the approval of the Plat shall be null
and void, subject to the following:
i. All costs, fees and other amounts previously paid to the City in
connection with the Plat, the Public Improvements, the Project
Improvements, this Agreement and the Project shall belong to and
be retained by the City;
ii. The obligations of the Developer for costs incurred shall survive
such termination and continue with respect to unpaid costs, fees and
expenses incurred prior to such termination;
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iii. The indemnifications of Developer shall survive and continue after
such termination; and
iv. The parties shall be released from all other obligations and liabilities
under this Agreement not specified above.
b. The City shall have no obligation to construct the Public
Improvements or Project Improvements and Developer shall have no
right to construct the Project on the Property unless the Developer
acquires fee simple title to the Property within one (1) year after approval
of this Agreement by the City Council.
c. In the event of the termination of this Agreement, the parties agree,
if requested by the other party, to execute and deliver to the other party a
written termination acknowledgment in a form reasonably satisfactory to
both parties.
d. Developer’s right to construct the Project is contingent upon its (i)
successful Closing on its purchase of the Property from the City, and (ii)
obtaining a building permit from the City following submission of a
complete and valid application for same.
20. Miscellaneous.
a. Developer, in acquiring the Property, entering into this Agreement and
pursuing the development of the Property as contemplated herein,
understands that the Property is adjacent to: (i) the New Ulm Municipal
Airport; and (ii) a property on which an active mining operation exists.
Developer understands that impacts associated with such uses of these
adjacent properties, including but not limited to noise, dust, and traffic
impacts, may affect the Property. Developer represents and warrants that it
has investigated the condition of the Property and specifically its location
next to the New Ulm Municipal Airport and the active mining operation
and has determined that such use of the neighboring properties as an
airport and an active mining operation, either in their existing or potentially
expanded conditions, poses no risks to Developer or impediments to
Developer’s planned use of the Property.
Developer, for itself and its heirs, successors, assigns and mortgagees,
hereby assumes liability, and agrees to be fully and exclusively responsible,
for the safety of the persons and property of all of its agents,
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representatives, participants, volunteers, guests and invitees while using or
otherwise present on the Property from and after the effective date of this
Agreement. Developer, for itself and its heirs, successors, assigns and
mortgagees, hereby irrevocably waives any and all claims against the City
or any of its officials, employees or agents for any bodily injury (including
death), loss or property damage incurred by the Developer or any person
using the Property at any time after the effective date of this Agreement
arising out of the lawful use of real property located in the City.
Developer further releases and discharges the City and any of its officials,
employees or agents from any and all such claims of liability related in any
way to the Property, any improvements to be constructed thereon, by the
Developer or any other third party. The City shall have no liability to the
Developer or Developer’s agents, representatives, participants, volunteers,
guests, invitees, heirs, successors, assigns and mortgagees, for personal
injury or damage to property, including motor vehicles, occurring at or
about the Property at any time after the effective date of this Agreement.
The provisions of this subparagraph (a) shall survive the termination or
expiration of this Agreement.
b. Developer may, upon reasonable request, be permitted to conduct limited
site preparation or grading activities within the platted right-of-way for the
future extension of Ryan Road on the eastern boundary of the Property.
Any such activities within the platted right-of-way for Ryan Road must be
specifically approved in writing in advance by the City Engineer.
c. Developer shall take out and maintain or cause to be taken out and
maintained until six (6) months after the Project is completed and the City
has accepted the Public Improvements, liability and property damage
insurance covering bodily injury, including death, and claims for property
damage which may arise out of Developer's work or the work of its
subcontractors or by one directly or indirectly employed by any of them.
Limits for bodily injury and death shall be not less than $500,000 for one
person and $1,500,000 for each occurrence; limits for property damage shall
be not less than $1,000,000 for each occurrence. The City shall be named as
an additional insured on the policy, and the Developer shall file with the
City a certificate evidencing coverage prior to the City authorizing the
commencement of work on the Public Improvements or Project
Improvements specified in this Agreement. The certificate shall provide
that the City must be given thirty (30) days’ advance written notice of the
cancellation of the insurance.
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d. For so long as Developer continues to own the Property after completion of
construction of the Project, the Developer shall manage or cause the Project
to be managed so as to comply with all federal, state and local laws,
ordinances and regulations, including but not limited to the City’s solid
waste disposal, right-of-way, public protection and public nuisance
ordinances. Developer shall further cooperate fully with the City in
resolution of any traffic, parking, trash removal, public safety, or nuisance
problems, which may arise in connection with the construction, operation
or maintenance of the Project.
e. This Agreement shall be permanent and run with the real estate described
above, and at all times prior to the Agreement’s expiration pursuant to
Section 18 above, the rights granted and responsibilities assumed thereby
shall inure to, and be binding upon, the parties’ heirs, successors, assigns
and mortgagees.
f. The Developer may not assign this Agreement without the written
permission of the City Council, which approval shall not be unreasonably
withheld, conditioned or delayed. The City Council shall be entitled to
consider the financial resources and ability of any proposed assignee to
perform the obligations of the Developer under this Agreement in its
consideration of such a proposed assignment of this Agreement. Upon
approval of an assignment, the Developer's obligations hereunder shall be
released regarding any portion of the Property which the Developer sells.
g. Third parties shall have no recourse against the City or Developer under
this Agreement.
h. Nothing in this Agreement shall preclude the City from (a) constructing or
causing to be constructed additional public improvements adjacent to or in
the vicinity of the Property, or (b) specially assessing or taxing all or a
portion of the cost of such improvements against the Property, as may be
allowed by law.
i. Developer agrees that all instruments of sale or conveyance of interests
within the Property shall contain a statement that the grantee agrees to all
previously constructed Public Improvements, and any apportionment of
previously levied special assessments of the costs of such improvements
against such interest in accordance with the terms of this Agreement. All
such instruments shall also bear a memorial indicating that any interest so
acquired shall be subject to the terms of this Agreement.
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21. Superseding Effect.
The Parties intend for the terms and conditions contained in this Agreement to
supersede and replace the Original Agreement in its entirety with respect to the Property,
such that the Developer and future owners of the Property, or any portion thereof, are
released from the Original Agreement as of the Effective Date of this Superseding
Agreement. On request, the City shall execute an appropriate instrument releasing the
Property from the Original Agreement, which may be recorded against the Property at
Developer’s expense.
22. General Provisions.
a. Voluntary and Knowing Action. The parties, by executing this
Agreement, state that they have carefully read this Amended
Development Agreement and understand fully the contents thereof; that
in executing this Agreement they voluntarily accept all terms described
in this Agreement without duress, coercion, undue influence, or
otherwise, and that they intend to be legally bound thereby.
b. Authorized Signatories. The parties each represent and warrant to
the other that (1) the persons signing this Agreement are authorized
signatories for the entities represented, and (2) no further approvals,
actions or ratifications are needed for the full enforceability of this
Agreement against it; each party indemnifies and holds the other
harmless against any breach of the foregoing representation and
warranty.
c. Notices. Any notice provided for or permitted under this
Agreement, unless otherwise provided herein, will be treated as having
been received (a) when delivered personally, (b) when sent by confirmed
email to the addresses listed below or (c) three (3) days following when
sent by certified mail, to the party to be notified, at the address set forth
below, or at such other place of which the other party has been notified
in accordance with the provisions of this subparagraph (c).
i. If to the Developer, at:
Wendy Anderson
PO Box 16
Springfield, MN 56087
ii. If to the City, at:
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Chris Dalton
City Manager
City of New Ulm
100 North Broadway
New Ulm, Minnesota 56073
d. Modifications/Amendment. Any alterations, variations, modifications,
amendments or waivers of the provisions of this Agreement shall only
be valid when they have been reduced to writing, and signed by
authorized representative of the parties.
e. Governing Law. This Agreement shall be deemed to have been
made and accepted in Brown County, Minnesota, and the laws of the
State of Minnesota shall govern any interpretations or constructions of
this Agreement without regard to its choice of law or conflict of laws
principles.
f. Data Practices. The parties acknowledge that this Agreement is
subject to the requirements of Minnesota’s Government Data Practices
Act, Minnesota Statutes, Section 13.01 et seq.
g. No Waiver. Nothing in this Agreement shall be construed to waive
any immunities or limitations to which the City is entitled under Minn.
Stat. Chapter 466 or otherwise. No waiver by any party to this
Agreement of any condition or of any breach of any provision of this
Agreement will be effective unless in writing. No waiver by any party
of any such condition or breach, in any one instance, will be deemed to
be a further or continuing waiver of any such condition or breach or a
waiver of any other condition or breach of any other provision contained
in this Agreement.
h. No Joint Venture or Partnership. Nothing herein shall be deemed to
create or establish the City as a co-partner or joint venturer with
Developer in the design, construction or operation of the Public
Improvements.
i. Headings and Captions. Any titles of the several parts, sections,
paragraphs and subparagraphs of the Agreement are inserted for
convenience of reference only and shall be disregarded in construing or
interpreting any of its provisions.
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j. Severability. If any provision of this Agreement is held invalid by a
court of a competent jurisdiction or in the event such a court shall
determine that a party does not have the power to perform any such
provision, such provision shall be deemed to be deleted herefrom and
the invalidity thereof shall not affect any of the other provisions
contained herein, and such judgment or decree shall relieve such party
from performance under such invalid provision of this Agreement.
k. Execution. This Agreement may be executed simultaneously in two
or more counterparts that, when taken together, shall be deemed an
original and constitute one and the same document. The signature of any
party to the counterpart shall be deemed a signature to the Agreement,
and may be appended to, any other counterpart, facsimile and email
transmissions of executed signature pages shall be deemed as originals
and sufficient to bind the executing party.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and
date first written above.
[signature pages to follow]
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RIVER HAVEN HOUSING LLC
By: _____________________________
Name:________________________
Position:______________________
STATE OF ___________ )
) ss.
COUNTY OF ___________ )
On this _____ day of _____________, 2025, before me, a notary public within and
for said County, personally appeared ______________, to me personally known, who,
being by me duly sworn did say that s/he is the _______________ of River Haven
Housing LLC, named in the foregoing instrument, and that said instrument was signed
on behalf of said Company with the authority of the Company and said
_________________ acknowledged said instrument to be the free act and deed of said
Company.
_______________________________________
NOTARY PUBLIC
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CITY OF NEW ULM
By____________________________________
Christopher A. Dalton
Its: City Manager
By ______________________________
Nicole Jorgensen
Its: Finance Director
STATE OF MINNESOTA )
) ss.
COUNTY OF BROWN )
On this _____ day of _____________, 2025, before me, a notary public within and
for said County, personally appeared Christopher A. Dalton and Nicole Jorgensen, to me
personally known, who, being by me duly sworn did say that they are respectively the
City Manager and the Finance Director of the City of New Ulm named in the foregoing
instrument, and that said instrument was signed in behalf of said City of New Ulm by
authority of the City Council and said Christopher A. Dalton and Nicole Jorgensen
acknowledged said instrument to be the free act and deed of said corporation.
_______________________________________
NOTARY PUBLIC
This Instrument was Drafted By:
Flaherty & Hood, P.A.
525 Park Street, Suite 470
St. Paul, MN 55103
(651) 225-8840
31
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Exhibit A
Legal Description of Property
All that part of the Southeast Quarter of the Northeast Quarter in Section 24, Township
110 North, Range 31 West, Brown County, Minnesota, being more particularly described
as follows:
Beginning at the northeast corner of said Southeast Quarter of said Northeast Quarter;
thence North 89 degrees 52 minutes 49 seconds West, bearing based on Brown County
Coordinate System (1996 Adj.), along the north line of said Southeast Quarter of said
Northeast Quarter, a distance of 564.37 feet to a point on the southeasterly line of
Maplewood Drive, as shown on the plat titled Maplewood Drive First Addition; thence
South 57 degrees 03 minutes 14 seconds West, along said southeasterly line, a distance of
516.75 feet to a point on the northeasterly line of North Highland Avenue, as shown in
the plat titled North Highland Avenue First Addition; thence South 32 degrees 57
minutes 10 seconds East, along said northeasterly line, a distance of 337.92 feet; thence
North 57 degrees 03 minutes 14 seconds East a distance of 969.98 feet to a point on the
east line of said Southeast Quarter; thence North 00 degrees 20 minutes 37 seconds East,
along said east line, a distance of 35.89 feet to the point of beginning.
Said tract is subject to any existing roadways or easements.
AND
All that part of Outlot B of the plat titled Maplewood Drive First Addition, the City of
New Ulm, as field and recorded in the office of the County Recorder, in and for Brown
County, Minnesota.
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Exhibit B
River Haven Addition Approved Final Plat
[See attached]
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Exhibit C
Certificates
Pursuant to the Development Agreement, prior to acceptance of the Public
Improvements by the City, the Developer must complete and furnish the following
certificates:
- Contractor’s Certificate;
- Engineer’s Certificate;
- Land Surveyor’s Certificate; and
- Developer’s Certificate;
in substantially the form provided herein, certifying that all construction has been
completed in accordance with the terms of the Development Agreement.
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CONTRACTOR’S CERTIFICATE OF COMPLIANCE
Project: _____________________________________________
I/we, the undersigned, certify that the construction of those certain improvements (the “Project”)
required to be made by __________________ (the “Developer”) pursuant to that certain
Development Agreement (the “Agreement”) dated _________________, 20___, by and between
the City of New Ulm (the “City”) and the Developer, are complete and have been completed all
in accordance with the provisions of the Agreement, and that the Project Improvement work
substantially conforms to the approved plans for the required improvements for the above-
referenced Project and in accordance with the City Code, Standard Specifications and the City’s
Engineering Standard Specifications.
I/we certify that the required improvements are free from all defects in material and
workmanship from the date of acceptance thereof by the City, that the Contractor agrees to
remedy all defects arising within the warranty period at the Developer’s expense, and that the
Contractor is now and will remain in compliance with the Warranty/Maintenance Guarantee
required by New Ulm City Code, City Standard Specifications for the required periods stated
therein.
This affidavit is made for the purpose of inducing the City of New Ulm to accept the Project
Improvements made as part of the Project for public ownership thereof in accordance with the
Agreement.
DEVELOPER’S CONTRACTOR:
__________________________________________
BY: ______________________________________
________________, Its ______________
STATE OF ____________ )
) ss.
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this _______ day
of _________________, 20_____, by _____________________. the
____________________________ of _______________________, a Minnesota
__________________, on behalf of ________________________.
____________________________
Notary Public
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ENGINEER’S CERTIFICATE OF COMPLIANCE
Project: _____________________________________________
I/we, the undersigned, based upon site observation, certify that those certain
improvements (the “Project”) required to be made by __________________ (the
“Developer”) pursuant to that certain Development Agreement (the “Agreement”) dated
_________________, 20___, by and between the City of New Ulm (the “City”) and the
Developer, appear to have been completed in accordance with the provisions of the
Agreement and, to the best of our knowledge, the Project improvement work
substantially conforms to the approved plans for the required improvements for the
above-referenced Project and in accordance with the City Code, City Standard
Specifications , and the City’s Engineering Standard Specifications.
This affidavit is made for the purpose of inducing the City of New Ulm to accept the
Project improvements made as part of the Project for public ownership thereof in
accordance with the Agreement.
DEVELOPER’S ENGINEER:
__________________________________________
BY: ______________________________________
________________, Its ______________
STATE OF ____________ )
) ss.
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this _______ day of
_________________, 20_____, by _____________________. the
____________________________ of _______________________, a Minnesota
__________________, on behalf of ________________________.
____________________________
Notary Public
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SURVEYOR’S CERTIFICATE
THE UNDERSIGNED is a Registered Land Surveyor. The plat of
__________________ Addition was graded in accordance with the grading plan approved
by the City for the plat prepared by __________________________________ dated
_______________________. The undersigned certifies that the “record” grading plan
dated _______________________ is accurate and was prepared by the undersigned or
under the undersigned’s direction. The record grading plan includes field verified
elevations of the following: a) cross sections of ponds; b) location and elevations along
all swales, wetlands, wetland mitigation areas if any, ditches, locations and dimensions
of borrow areas/stockpiles; and c) lot corner elevations and house pads. All lots with
house footings placed on fill have been monitored and constructed to meet or exceed
FHA/HUD 79G specifications.
Dated: __________________________.
____________________________________
REGISTERED LAND SURVEYOR
Registration No. ______________________
STATE OF ____________ )
) ss.
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this _______ day of
_________________, 20_____, by _____________________. the
____________________________ of _______________________, a Minnesota
__________________, on behalf of ________________________.
____________________________
Notary Public
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DEVELOPER’S CERTIFICATE OF COMPLIANCE
Project: _____________________________________________
I/we, the undersigned, certify that the construction of those certain improvements (the
“Project”) required to be made by __________________ (the “Developer”) pursuant to
that certain Development Agreement (the “Agreement”) dated _________________,
20___, by and between the City of New Ulm (the “City”) and the Developer, are complete
and have been completed all in accordance with the provisions of the Agreement, that
the Developer has complied to date with all requirements set forth in the Agreement, and
that the work under the above named Project including all appurtenances thereto has
been completed in accordance with the City Code, City Standard Specifications and the
City’s Engineering Standard Specifications.
I/we further certify that all charges or bills for labor or services performed or materials
furnished, and other charges by the subcontractors for the required Project improvements
have been paid in full and in accordance with the terms of that/those contract(s).
I/we further certify that the required Project improvements are free and clear of any and
all liens and encumbrances; that no notice of intention to claim liens is outstanding, and
that no suits are pending by reason of the Project.
I/we finally certify that the required improvements are free from all defects in material
and workmanship from the date of acceptance thereof by the City, that the Developer
agrees to remedy all defects arising within the warranty period at the Developer’s
expense, and that the Developer is now and will remain in compliance with the
Warranty/Maintenance Guarantee required by New Ulm City Code, and City Standard
Specifications for the required periods stated therein.
This affidavit is made for the purpose of inducing the City of New Ulm to accept the
Project improvements made as part of the Project for public ownership thereof in
accordance with the Agreement.
DEVELOPER:
__________________________________________
BY: ______________________________________
________________, Its ______________
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STATE OF ____________ )
) ss.
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this _______ day of
_________________, 20_____, by _____________________. the
____________________________ of _______________________, a Minnesota
__________________, on behalf of ________________________.
____________________________
Notary Public
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Exhibit D
Form of Irrevocable Letter of Credit
No. ___________________
Date: _________________
TO: City of New Ulm
100 North Broadway
New Ulm, Minnesota 56073
Dear Sir or Madam:
We hereby issue, for the account of (Name of Developer) and in your favor, our
Irrevocable Letter of Credit in the amount of $____________, available to you by your draft drawn
on sight on the undersigned bank.
The draft must:
a) Bear the clause, "Drawn under Letter of Credit No. __________, dated ________________,
2______, of (Name of Bank) ";
b) Be signed by the Mayor or City Manager of the City of New Ulm.
c) Be presented for payment at (Address of Bank) , on or before 4:00 p.m. on November
30, 2______.
This Letter of Credit shall automatically renew for successive one-year terms unless, at least
forty-five (45) days prior to the next annual renewal date (which shall be November 30 of each
year), the Bank delivers written notice to the New Ulm City Manager that it intends to modify the
terms of, or cancel, this Letter of Credit. Written notice is effective if sent by certified mail, postage
prepaid, and deposited in the U.S. Mail, at least forty-five (45) days prior to the next annual renewal
date addressed as follows: New Ulm City Manager, 100 North Broadway, New Ulm, Minnesota
56073, and is actually received by the City Manager at least thirty (30) days prior to the renewal
date.
This Letter of Credit sets forth in full our understanding which shall not in any way be
modified, amended, amplified, or limited by reference to any document, instrument, or agreement,
whether or not referred to herein.
This Letter of Credit is not assignable. This is not a Notation Letter of Credit. More than one
draw may be made under this Letter of Credit.
This Letter of Credit shall be governed by the most recent revision of the Uniform Customs
and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600.
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We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall
be duly honored upon presentation.
BY: ____________________________________
Its______________________________
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Exhibit E
Public Improvement Costs
[Insert approved estimates for Phase I and Phase II Public Improvements when available]
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