HomeMy WebLinkAbout9A Bluffs of Candy Cove Final Plat4646 Dakota Street SE
Prior Lake, MN 55372
CITY COUNCIL AGENDA REPORT
MEETING DATE: NOVEMBER 7, 2011
AGENDA M 9A
PREPARED BY: JEFF MATZKE, PLANNER
AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION WITH FINDINGS OF FACT AP-
PROVING THE COMBINED PRELIMINARY AND FINAL PLAT TO BE KNOW
AS BLUFFS OF CANDY COVE
DISCUSSION: Intro duction
Jason Miller has applied for approval of a residential development to be known
as The Bluffs of Candy Cove on the property located at PID 25- 027 - 023 -0, 25-
027- 024 -0, and 25- 027 - 025 -0. The site is located along Candy Cove on Prior
Lake at the intersection of Candy Cove Trail and State Highway 13. The request
calls for the subdivision of the existing common ownership property into three
single - family residential lots.
History
On November 7, 2011 the City Council approved a combined preliminary and fi-
nal plat to be known as The Bluffs of Candy Cove. At the meeting the City Coun-
cil had considerable discussion regarding grading and retaining walls features
within the City -owned parcel (PID 25- 936- 075 -0) and instructed City Staff to pre-
pare a resolution with findings of fact for the approval of the plat. The findings
were to include an indemnification condition in the event the applicant chooses to
remove an existing retaining wall on the City -owned parcel which was placed by
the adjacent property owner in 2002. The attached resolution identifies findings
of fact and conditions identified by the City Council at the November 7, 2011
meeting.
ISSUES: As advised by the City Attorney, City Staff has included an additional condition
(Condition G) in the attached resolution which instructs the applicant to submit
payment to the property owner of Lot 31, CANDY COVE PARK (5584 Candy
Cove Trail) for removal of boulder retaining wall materials from the area. Rather
than the complete removal of the boulders from the site area, the applicant has
also expressed interest in relocating the boulders to another location on the City -
owned property or Lot 31 (the adjacent private property) which may be accepta-
ble to the adjacent property owner.
ALTERNATIVES: The City Council has the following alternatives:
1. Approve the resolution approving the Combined Preliminary and Final Plat for
this development subject to the listed conditions and findings of fact, and au-
thorize the Mayor and City Manager to execute the Development Contract.
2. Defer consideration of this item and provide staff with specific direction.
RECOMMENDED Alternative 1. A motion and second approving the resolution to approve the
MOTIONS: Combined Preliminary and Final Plat to be known as The Bluffs of Candy Cove
and authorize the Mayor and City Manager to execute the Development Contract.
Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com
4646 Dakota Street SE
Prior Lake, MN 55372
RESOLUTION 11 -XXX
A RESOLUTION APPROVING THE COMBINED PRELIMINARY AND FINAL PLAT OF "THE BLUFFS OF
CANDY COVE" AND SETTING FORTH CONDITIONS TO BE MET PRIOR TO RELEASE OF THE FINAL PLAT
Motion By:
Second By:
WHEREAS,
The Prior Lake Planning Commission conducted a public hearing on August 8, 2011 and
continued the public hearing to September 12, 2011, to consider an application from Jason Miller
for the combined preliminary and final plat of "The Bluffs of Candy Cove "; and
WHEREAS,
Notice of the public hearing on said combined preliminary and final plat has been duly published
and posted in accordance with the applicable Minnesota Statutes and City of Prior Lake
Ordinances; and
WHEREAS,
All persons interested in this issue were afforded the opportunity to present their views and
objections related to the combined preliminary and final plat of "The Bluffs of Candy Cove" for the
record at the public hearing conducted by the Planning Commission; and
WHEREAS,
The Planning Commission has reviewed the combined preliminary and final plat and
corresponding variance requests according to the applicable provisions of the Prior Lake Zoning
and Subdivision Ordinances and found said combined preliminary and final plat to be consistent
with said Ordinances, subject to 9 variances; and
WHEREAS,
The Planning Commission made a recommendation to the City Council to approve the preliminary
and final plat subject to the applicant submitting a plan for a driveway access that: (1) does not
require the removal of the existing retaining wall on City property to construct the proposed
driveway access to the plat of The Bluffs of Candy Cove, (2) meets the engineering standards set
out in the Public Works Design Manuel, and (3) receives the approval of the City Engineer; and
WHEREAS,
The Prior Lake City Council considered the application for the combined preliminary and final plat
for "The Bluffs of Candy Cove" on November 7, 2011 and reviewed the preliminary and final plat
application pursuant to the criteria in the Zoning and Subdivision Ordinance and the record before
it and the recommendation of the Planning Commission; and
WHEREAS,
The City of Prior Lake owns a property (PID 25- 936 - 075-0) located at the intersection of Candy
Cove Trail and MN Trunk State Highway 13 which provides access for two adjacent residential
properties and is intended to provide access for the subject plat; and
WHEREAS,
Variance resolution 02 -123 was approved by the Prior Lake City Council on May 20, 2002 to allow
construction of a single family home located on Lot 31, CANDY COVE PARK with an access
across the City-owned property (PID 25- 936- 075 -0); and
WHEREAS,
Resolution 02 -123 imposes a condition that "[T]he subject site shall be developed as shown on
the attached survey to ensue additional variances are not required.... "; and
WHEREAS,
The survey attached to Resolution 02 -123 identifies the location of a driveway and retaining wall
on the westerly boundary of the City -owned property, but did not grant the owner of Lot 31 an
easement over or across the City-owned property; and
Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com
WHEREAS, The owner of Lot 31 constructed a driveway and retaining wall on the City -owned property
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as
follows:
1. The recitals set forth above are incorporated herein.
2. The City Council makes the following "Findings ":
a. The Property being subdivided to create the Plat known as The Bluffs of Candy Cove was originally platted
in 1921 into five (5) residential lots under the Plat known as Candy Cove Park.
b. The Property remains in common ownership.
c. In 1999 the City Council passed Ordinance 99 -18 providing that all nonconforming lots of continuous
frontage in common ownership would be combined to create a conforming lot.
d. The access to the Property was compromised in 1963 when the State of Minnesota, (MnDOT) condemned
a portion of the Property for the construction of State Highway 13.
e. MnDOT conveyed a parcel of property remaining after the construction of State Highway 13, to the City
(referred to herein as the "City-owned property" or PID 25- 936- 075 -0). MnDOT did not grade the property
before it was conveyed to the City.
f. The access to the plat of The Bluffs of Candy Cove is through the City -owned property. The topography of
the City -owned property is challenging and requires significant grading and retaining walls in order to provide
access to the proposed plat. The topography of the Property being platted is also very challenging because of
its location, configuration and the impact of the bluffs and that these conditions create practical difficulties in
developing the property and warrant approval of the variances set out below.
g. The grading plan the applicant has submitted will result in the removal of a significant hill on the City -owned
property adjacent to Lot 31 and also require the removal of the retaining wall constructed by the owner of Lot 31
pursuant to Resolution 02 -123.
h. The City Staff attempted to facilitate an agreement between the owner of Lot 31 and the applicant involving
the removal of the retaining wall.
i. The hill on the City -owned property creates a buffer for the residents on Candy Cove Trail from the traffic
noise on Highway 13.
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consistent with the condition in Resolution 02 -123 and the survey attached thereto; and
WHEREAS,
The location of the retaining wall constructed by the owner of Lot 31 interferes with the applicant's
preferred location to construct a driveway access and appurtenant structures to the plat; and
WHEREAS,
The applicant and owner of Lot 31, CANDY COVE PARK attempted unsuccessfully to negotiate
an agreement which would allow the applicant to remove the retaining wall, constructed on the
City -owned property, and grade for the driveway access and appurtenant structures to the plat
according to the applicants preferred driveway design option; and
WHEREAS,
The City Engineer prepared two possible designs for the driveway access to illustrate options that
would not require the removal of the retaining wall, but the applicant maintains that the design he
presented was preferable for him; and
WHEREAS,
The Prior Lake City Council desires to approve a grading plan for the driveway access and
appurtenant structures which protects the health, welfare and safety of the general public; and
WHEREAS,
The Prior Lake City Council deems a grading plan that allows for minimal wall height while
achieving a screening combination of landscaping and /or berming to be most appropriate for the
area; and
WHEREAS,
The City Council has the authority to impose reasonable conditions on a combined preliminary
and final plat.
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as
follows:
1. The recitals set forth above are incorporated herein.
2. The City Council makes the following "Findings ":
a. The Property being subdivided to create the Plat known as The Bluffs of Candy Cove was originally platted
in 1921 into five (5) residential lots under the Plat known as Candy Cove Park.
b. The Property remains in common ownership.
c. In 1999 the City Council passed Ordinance 99 -18 providing that all nonconforming lots of continuous
frontage in common ownership would be combined to create a conforming lot.
d. The access to the Property was compromised in 1963 when the State of Minnesota, (MnDOT) condemned
a portion of the Property for the construction of State Highway 13.
e. MnDOT conveyed a parcel of property remaining after the construction of State Highway 13, to the City
(referred to herein as the "City-owned property" or PID 25- 936- 075 -0). MnDOT did not grade the property
before it was conveyed to the City.
f. The access to the plat of The Bluffs of Candy Cove is through the City -owned property. The topography of
the City -owned property is challenging and requires significant grading and retaining walls in order to provide
access to the proposed plat. The topography of the Property being platted is also very challenging because of
its location, configuration and the impact of the bluffs and that these conditions create practical difficulties in
developing the property and warrant approval of the variances set out below.
g. The grading plan the applicant has submitted will result in the removal of a significant hill on the City -owned
property adjacent to Lot 31 and also require the removal of the retaining wall constructed by the owner of Lot 31
pursuant to Resolution 02 -123.
h. The City Staff attempted to facilitate an agreement between the owner of Lot 31 and the applicant involving
the removal of the retaining wall.
i. The hill on the City -owned property creates a buffer for the residents on Candy Cove Trail from the traffic
noise on Highway 13.
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3.
4.
j. The applicant's grading plan for the driveway access and appurtenant structures involves removing a
significant portion of the hill and may result in increased traffic noise for the properties along Candy Cove Trail
unless mitigation measures are installed to minimize the impact of the hills removal.
k. The City Attorney advised the City Council that approving a design and grading plan for the driveway
access and appurtenant structures that involves removal of the retaining wall constructed by the owner of Lot
31 may result in litigation against the City and potential liability.
j. The City Attorney confirmed for the City Council that the City did not give the owner of Lot 31 an easement
for the driveway or retaining wall; nor did the owner enter into a Private Use of Public Property or any other
form of agreement with the City pertaining to the driveway and retaining wall.
m. The City Council finds that the owner of Lot 31 did not acquire any protected property interest in the
retaining wall on the City -owned property.
n. Notwithstanding the finding in m above, the City Council finds that the applicant will be benefitted by a
decision of the Council that permits the removal of the retaining wall and that any damages, costs, legal fees,
expenses or liability that results from the removal of the retaining wall should be born entirely by the applicant
and not by the City.
o. The City Council finds that the owner of Lot 31 did incur costs in the year 2002 related to the construction of
the existing retaining wall on the City-owned property.
p. The City recommends the applicant attempt to enter into an agreement with the adjacent property owner
prior to grading and construction within the City -owned parcel in order to reduce proposed grading and retaining
wall heights.
The preliminary plat of 'The Bluffs of Candy Cove" is approved subject to the conditions set forth in this
resolution:
The final plat of "The Bluffs of Candy Cove" is subject to the following conditions, which shall be met prior to
release of and recording of the final plat:
a) The applicant shall address all comments as outlined in the memorandum from the City Engineer dated
October 17, 2011
b) The following pending variances are granted through approval of a separate resolution:
1) A variance to allow a structure to be located in the bluff impact zone on Lots 1, 2, & 3. (Section
1104.303)
2) A 5 foot variance from the required minimum 5 foot driveway side yard setback for Lots 1, 2, & 3
(Section 1107.205 (1)).
3) A 25 foot variance from the minimum 25 foot front yard setback required in the R -1 Zoning Use
District for Lot 1 (Section 1102.405 (3)).
4) A 32 foot variance from the minimum 75 foot lake setback required in the Shoreland District for Lot
2 (Section 1104.308. (2)).
5) A 10 foot variance from the minimum 10 foot east side yard setback required in the R -1 Zoning Use
District for Lot 2 (Section 1104.405 (3)).
6) A 10 foot variance from the minimum 10 foot west side yard setback required in the R -1 Zoning
Use District for Lot 2 (Section 1104.405 (3)).
7) A 20 foot variance from the minimum 25 foot front yard setback required in the R -1 Zoning Use
District for Lot 3 (Section 1102.405 (3)).
8) A 45 foot variance from the minimum 75 foot lake setback required in the Shoreland District for Lot
3 (Section 1104.308. (2)).
9) A 4,923 square foot variance from the required minimum lot area for a riparian residential lot on a
General Development Lake within the Shoreland District (Section 1104.302 (3)).
c) The applicant shall enter into a development contract with the City and pay any required development
fees.
d) The applicant shall obtain required permits from all applicable governmental agencies prior to final plat
approval.
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e) The final plat shall be recorded at Scott County within 60 days of approval by the City Council.
f) The applicant shall enter into a Driveway Access Agreement with the City of Prior Lake. The
agreement shall contain an indemnification and hold harmless provision for the reasons and purposes
set forth in "Findings" listed above.
g) The applicant shall pay the owner of Lot 31 an amount commensurate with the cost of constructing a
retaining wall similar to the retaining wall constructed by the owner in 2002 and being removed by the
applicant to construct a driveway access and appurtenant structures in connection with the
development of the plat of The Bluffs of Candy Cove. If the applicant and owner cannot agree on a
cost, the parties shall each obtain two (2) estimates from reputable contractors for the cost of a similar
wall and the average of the four (4) estimates shall be the amount the applicant shall pay to the owner
of Lot 31.
h) The applicant shall agree to meet with the property owner of Lot 31, at a meeting arranged by the City
Staff, in a final effort for the owner of Lot 31 and applicant to agree on a grading plan that meets with
the approval of the City Engineer.
i)
PASSED AND ADOPTED THIS 21TH DAY OF NOVEMBER, 2011.
YES NO
Mys er
Myser
Hedberg
Hedb
Erickson
Erickson
Keeney
Keene
Soukup
Souku
Frank Boyles, City Manager
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SHORT FORM
DEVELOPMENT CONTRACT
THE BLUFFS OF CANDY COVE
PROJECT #10 -122
This SHORT FORM DEVELOPMENT CONTRACT is entered into this 21 day of
November, 2011, by and between the CITY OF PRIOR LAKE, a Minnesota municipal corporation
( "City"), and Jason Miller, the property owner ( "Developer ").
(1) WHEREAS, the City Council has adopted a Standard Development Contract which is
required to be exceeded as a condition of Final Plat approval; and
(2) WHEREAS, the Standardized Development Contract pertains to all land within the Final
Plat; and
(3) WHEREAS, as part of a Final Plat approval, a developer may plat certain land as an Outlot;
and
(4) WHEREAS, development fees are not collected on Outlots until such time as a Final Plat is
approved for the Outlots; and
Page 1
(5) WHEREAS, the City desires to provide for an abbreviated form of its Standard
Development Contract, heretofore referred to as "Short Form Development Contract ", which will be used
in three limited situations, to wit: (1) any Outlots are the subject of a Final Plat, (2) no new public
improvements are part of the platting of Outlots; and (3) development fees and other special provisions
apply to the Final Plat of the any Outlot.
Based on the mutual promises and covenants set forth herein, the sufficiency of which is not
disputed, the City and the Developer (collectively "Parties ") agree as follows:
1. n nnFrT OI PLAT APPROVAL The Developer has asked the City to approve a Plat
for THE BLUFFS OF CANDY COVE (referred to in this Development Contract as the "Plat "). The land
is legally described as:
Lots 32, 33, 34, 35, and 36, CANDY COVE PARK, as platted and of record in the Office of
County Recorder, Scott County, Minnesota.
2. CoN ITIONS OF PLAT APPBO AL . The City hereby approves the Plat on condition
that the Developer enter into this Development Contract, and record the Plat and Development Contract
with the County Recorder or Registrar of Titles within 60 days after the City Council approves the final
Plat.
3. R1 G IT TO PROCEED Within the Plat or land to be platted, the Developer may not begin
construction until all the following conditions have been satisfied: 1) this Development Contract has been
fully executed by both parties, 2) the necessary security, development fees and insurance have been
received by the City, and 3) the Developer shall obtain all necessary permits and approvals from any other
agencies having jurisdiction before proceeding with that aspect of the construction as it relates to that
permit, 4) the Developer shall record an easement agreement for access upon the City property, 5) the City
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Engineer or Designee has issued a letter that all conditions have been satisfied and that the Developer may
proceed.
4, nFVFLOPMENT PLANS The Plat shall be developed in accordance with the Plans
identified below. The plans shall not be attached to this Development Contract, but are incorporated by
reference and made a pant of this Development Contract as if fully set forth herein. If the plan varies from
the written terms of this Development Contract, the more specific or stringent controls shall apply. The
Plan includes:
Plan A -- Final Plat Stamp Dated October 20, 2011 (Prepared by Stonebrooke
Engineering)
Plan B -- Final Grading, and Erosion Control Plan(s) as stamped approved by the City
Engineer (Prepared by Stonebrooke Engineering)
Plan C -- Landscaping Plan Stamp Dated October 13, 2011 (Prepared by Stonebrooke
Engineering)
All plans set forth above is incorporated herein and made pant of this Development Contract.
5 VE O EK nRO WED CONSTRU TION S RVIC�S_ The Developer shall be
responsible for providing all other construction services including, but not limited to:
A. Consttliction sutveying
B. As -built drawings of grading plans.
C. As -built drawings showing location, dimensions and elevations of all utility
improvements, including but not limited to top nut of hydrants, manhole rims, manhole inverts. (Field tie
dimensions to sewer and water services shall be provided to the Developer's Engineer, by City staff or City
consultants). As -built record drawings shall follow the requirements set forth in the Public Works Design
Manual (PWDM). The as -built record drawings shall be submitted to the City for approval within six (6)
months of substantial base pavement course placement.
Page 3
D. Project Testing: The Developer is responsible, at the Developer's sole cost, to
provide testing to certify that Developer Installed Improvements were completed in compliance with the
approved final plans and specifications. A copy of all testing documentation must be submitted to the City.
The personnel performing the testing shall be certified by the Minnesota Department of Transportation.
The City Engineer has the sole discretion to determine if additional testing is necessary. The cost of
additional testing is to be paid by the Developer.
E. Lot corners and monuments.
F. Engineering / Project Management
b, BOULEVARD AND AREA RESTORATION. The Developer shall seed or lay cultured
sod in all boulevards within thirty (30) days, or within a timeline established by the City Engineer, of the
completion of street related improvements and restore all other areas disturbed by the development grading
operation. Boulevard and Area Restoration shall be in accordance with the approved erosion control plan.
Upon request of the City Engineer, the Developer shall remove the silt fences after turf establishment.
7. SUBDIVISION MONUMENTS The Developer shall install all subdivision
monumentation within one (1) year from the date of recording the plat, or the monumentation shall be
installed on a per lot basis at the time the building permit for the subject lot is issued, whichever occurs
first. At the end of the one (1) year period from recording of the Plat, the Developer shall submit to the
City Engineer written verification by a registered land surveyor that the required monuments have been
installed throughout the plat.
8. TL HE OF PERFORMANCE The Developer shall install all required public
improvements by December 31, 2012. If necessary, the Developer and the City shall consult about an
extension of time. If an extension is granted, it shall be in writing and conditioned upon updating the
Security hosted by the Developer to reflect cost increases and the extended completion date.
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9. Lam The Developer hereby grants the City, its agents, employees, officers and
contractors a non - revocable license to enter the Plat to perform all work and inspections deemed
appropriate by the City in conjunction with the development of the Plat.
10. EROSION CONTROL
A. Prior to initiating site grading, the erosion control plan, Plan B, and Stormwater
Pollution Prevention Plan (SWPPP) shall be implemented by the Developer and inspected and approved
by the City. The City may require the Developer, at no cost to the City, to install additional erosion
control measures if they are necessary to meet erosion control objectives. All areas disturbed by the
excavation and backfilling operations shall be reseeded immediately after the completion of the work in
that area. All seeded areas shall be mulched, and disc anchored as necessary for seed retention. The
parties recognize that time is of the essence in controlling erosion. If the Developer does not comply
with the erosion control plan and schedule or supplementary conditions imposed by the City, the City
may take such action as it deems appropriate to control erosion. The City will endeavor to notify the
Developer 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 solely responsible for any
costs incurred by the City for erosion control measures. The Developer shall fully reimburse the City for
any cost incurred within ten (10) days of the date of the City's invoice. If the Developer does not
reimburse the City for any cost the City incurred for such work within ten (10) days, the City may,
without further notice to the Developer, draw down the Irrevocable Letter of Credit to pay any costs. No
development, utility or street construction will be allowed unless the Plat is in full compliance with the
erosion control requirements. The notice provisions set out in Paragraph 27 shall not apply to
notifications to the Developer under this paragraph.
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B. The Developer shall seed or lay cultured sod in all boulevard areas behind curb within
thirty (30) days, or within a timeline established by the City Engineer, of the completion of street related
improvements.
C. The Developer shall restore all other areas disturbed by the development grading and
construction operations within this time period.
D. Boulevard and disturbed area restoration shall be in accordance with the approved
Plan B and SWPPP. (No building permits will be issued until the Developer has installed silt -fence
behind the sod line of all buildable lots). It is expressly understood that once silt fence has been installed
it shall become the builders' responsibility to maintain the silt fence, unless the silt fence is damaged by
the Developer's utility contractors.
I I, �r F.AWUP, The Developer shall clean diet and debris from streets that has resulted fiom
any and all construction work by the Developer, homebuilders, contractors and subcontractors, their agents
or assigns. Prior to any construction in the Plat, the Developer shall identify, in writing, a responsible party
and schedule for erosion control, street cleaning, and street sweeping. If the Developer fails to perform the
required clean -up within 24 hours of receiving instructions and notice from the City, the City, without
fiirther notice, will perform the work and charge the associated cost to the Developer. If the Developer
does not reimburse the City for any cost the City incurred for such work within ten (10) days of receipt of
the invoice, the City may draNv down, without fiirther notice, the Irrevocable Letter of Credit to pay any
costs incurred by the City. Due to time sensitive nature of clean up, the notice provisions set out in
Paragraph 27 shall not apply to notifications to the Developer under this paragraph.
,_; 1 ► I
A. The Plat shall be graded in accordance with the approved grading plans. All existing
and proposed contours must be shown and approved as a part of the building permit application. The
Pap 6
graded plans, as well as the grading and erosion control work shall conform to City of Prior Lake Public
Works Design Manual.
B. As- builts. Before the City releases the Grading Security, the Developer shall
provide the City with an as built grading plan and a certification by a registered land surveyor or engineer
that all ponds, swales, and ditches have been constructed on public casements or land owned by the City.
The as -built plan shall include field verified elevations of the following; a) cross sections of ponds, b)
location and elevations along all swales and ditches, and c) lot corners and house pads. The City may
withhold issuance of building permits until the approved certified grading plan is on file with the City and
all erosion control measures are in place as determined by the City Engineer. The Developer shall also
submit a land tabulation certified by a registered engineer showing that all pads have been corrected in
accordance with project specifications.
13. C MTl UCTLOff ACCES& Construction traffic access and egress for grading, public
utility construction, and street construction is restricted to Candy Cove Trail NE via TH 13. No
construction traffic is permitted on the adjacent local streets.
14. RFTALNING ��ALL Each retaining wall over four (4) feet in height shall require
approval of a building permit. Placement of fencing shall be required above all retaining walls over 4 feet
or greater than two tiers in height.
15. BL UFF STABILITY,, Prior to construction the Developer shall provide and calculations
on the bluff stability as prepared by a license professional engineer in accordance with the requirements of
City Ordinance 1104.305.
A. Grading, utilities, curbing, and one lift of bituminous shall be installed on all streets
providing access and adjacent to a lot prior to issuance of any building permits for that lot. Grading as-
Page 7
builts for the proposed building permit shall be approved prior to issuance of any building permit. Before a
building permit will be issued a minimum of one (1) active fire hydrant within 300 feet of the unit must be
available for fire protection. If building permits are issued prior to the acceptance of Developer Installed
Improvements, the Developer assumes all liability and costs incurred as a result of delays in completion of
the Developer Installed Improvements; including damages to Developer Installed Improvements caused by
the Developer, its contractors, subcontractors, material men, employees, agents or third parties.
B. Wetland Buffer Signage must be installed prior to the issuance of any building
permits within the development.
C. A temporary or permanent Certificate of Occupancy shall not be issued for any
building in the plat until water and sanitary sewer improvements have been installed and the streets have
been completed and the first lift of bituminous has been placed and said improvements have been inspected
and determined by the City to be available for use.
17, CITI'AD INISTRATION The Developer shall pay a fee for City administration. City
administration will include all activities necessary to implement this Developer's Contract. These activities
include, but are not limited to, preparation of the Development Contract, consultation with Developer and
its engineer on the status of or problems regarding the development of the Plat, project monitoring during
the warranty period, processing of requests for reduction in security, and any consulting or legal fees
incurred by the City. Fees for this service shall be four percent (4 %) of the estimated construction cost as
detailed in Exhibit C, assuming normal construction and project scheduling. The previous escrowed fiends
currently retained by the City as a result of a Final Plat Application will be credited towards the City
Administration four percent (4 %) fee. The Developer has previously escrowed $1,000.00 for City
Administrative Review. The remaining City Administration Fee shall be $8,656.00. This fee was
calculated as four percent (4 %) of the estimated construction cost as identified in Exhibit C ($9,656.00)
Page 8
less the previously established $1,000.00 escrow fund. Costs incurred by the City over and above the four
percent (4 %) Administration fee shall be billed to the Developer.
18. R_EI B T OF CITY ADMINISTRATION FE S. The City and Developer
acknowledge that the calculation of the City Administration Fee is based on construction cost estimates
provided by the Developer to the City. Although the City reviews and accepts the construction cost
estimates provided by the Developer, the review and acceptance is based on an assessment by City
Engineering Staff that the costs provided to the City are reasonable. Actual construction costs may vary.
Once the City approves the construction cost estimates from the Developer for the Developer Installed
Improvements, the City Administration Fee will not be subsequently adjusted in order for the City to
collect additional administrative fees from the Developer or to reimburse the Developer for fees paid to the
City.
19. T AND&C Pte In accordance with the City Subdivision Ordinance, each residential lot
in the Plat must have at least two (2) front yard trees. Tile Developer or lot purchaser shall plant the two
(2) front yard trees on every lot in the Plat that does not already meet this requirement at the time of the
building permit. The Developer or lot purchaser shall sod the front yard, boulevard, and side yards to the
rear of every structure on every lot prior to the issuance of the final certificate of occupancy. If this section
is to be satisfied by existing trees, a tree protection security ("escrowed funds ") may also be required. If the
required landscaping is not installed, the City is granted a license to enter upon a lot and install the
landscaping using the escrowed fiends deposited by the builder at the time the building permit was issued.
Upon satisfactory completion of the landscaping, the escrowed fiends less any draw made by the City, shall
be returned to the person who deposited the funds with the City.
20. TREE PRE E TIDN AND REP N T. Subject to the provisions of Section
1107.2100 of the City Zoning Ordinance and approved Plan C, the Developer shall provide a financial
Page 9
guarantee prior to building permit issuance that will be based on the number of trees proposed to be
impacted.
21. S ECURII'f. To guarantee compliance with the terms of this Development Contract,
payment of the costs of all Developer Installed Improvements, and construction of all Developer Installed
I nprovements, the Developer shall furnish the City with an Irrevocable Letter of Credit or a cash deposit in
an amount equal to 125% of the estimated Developer Improvement Costs. The Irrevocable Letter of Credit
( "Security ") shall be in the form attached hereto as Exhibit B, from a bank for $241,400. The amount of
the Security was calculated as follows:
DEVELOPER INSTALLED IMPROVEMENTS COSTS:
Total Construction Cost
$ 241,400.00
ESTIMATED DEVELOPER INSTALLED IMPROVEMENTS SUBTOTAL $ 241,400.00
X 1.25
TOTAL SECURITY AMOUNT
$ 301,750.00
This breakdown is for historical reference; it is not a restriction on the use of the Security. The
bank on which the Irrevocable Letter of Credit is drawn shall be subject to the approval of the City. The
bank shall be authorized to do business in the State of Minnesota with a principal branch located within the
seven County Twin City Metropolitan area. The Letter of Credit should extend through the warranty
period and shall not have an expiration date earlier than December 31, 2013. Individual Security
instruments may be for shorter terms provided they are replaced at least forty -five (45) days prior to their
expiration. If the required Developer Installed Improvements are not completed at least thirty (30) days
prior to the expiration of the Security, the City may draw it down. If the Security is drawn down, the
proceeds shall be used to cure the default.
Page 10
22. CITY DEVEi~ OPMENT FEES The total amount for Development Fees as set forth in
Paragraph 17 above is $8,656.00 for City Development Fees. The Developer shall pay this amount to the
City prior to the City signing the Final Plat. The amount of the cash fee was calculated as follows;
CITY DEVELOPMENT FEES:
City Administration Fee (4 %) $ 8,656.00
TOTAL CITY DEVELOPMENT FEES $ 8,656.00
23, RED CT O1V OF SECITRITY Upon receipt of proof satisfactory to the City that the
required work has been satisfactorily completed and financial obligations to the City have been satisfied,
the Security may be reduced by seventy -five percent (75 %) of the financial obligations that have been
satisfied upon written authorization by the City Engineer. Any requests for reductions in the Security must
be made in writing to the City Engineer and must be accompanied by lien waivers from any contractor or
subcontractor for the Developer. Twenty -five percent (25 %o) of the Security shall be retained until ail
Developer Installed Improvements and other obligations under this Development Contract have been
completed, including, but not limited to, all financial obligations to the City, and the receipt of all required
as -built street, utility and grading plans by the City. Once the City has accepted the project, as- builts have
been completed, all punch list items are completed and warranty bonds submitted, the Irrevocable Letter of
Credit may be reduced to 5 %. Upon completion of the warranty period the 5% Irrevocable Letter of Credit
may be released. In no event shall the five percent (5 %) Security be released until the Developer provides
the City Engineer with a certificate from the Developer's registered land surveyor stating that all irons have
been set following site grading and utility and street construction.
24, WARRANTY The Developer warrants all Developer Installed Improvements required to
be constructed by it pursuant to this Development Contract against poor material and faulty workmanship.
The Developer shall post warranty bonds in the amount of twenty -five (25 %) of the improvements as
Page 1 f
security. The warranty period for streets is one (1) year. The warranty period for underground utilities is
two (2) years. The warranty period on Developer Installed Improvements shall commence on the date the
City Engineer issues written acceptance of the improvement. All punch list items must be completed and
"as- built" drawings received prior to the conunencement of the warranty period. The retained Security may
be used by the City to pay for warranty work. The City standard specifications for utilities and street
construction identify the procedures for final acceptance of streets and utilities. These standards are set out
in the Public Works Design Manual.
A. The Developer shall reimburse the City for costs incurred in the enforcement of this
Development Contract, including engineering and attorneys' fees.
B. Except as provided in Paragraphs 10 and 11 of this Development Contract, the
Developer shall pay in fiill all bills submitted to it by the City for obligations incurred under this
Development Contract within thirty (30) days after receipt. If the bills are not paid on time, the City may
issue a stop work order until the bills are paid in Rill.
A. Definition. In the context of this Development Contract, "Event of Default" shall
include, but not be limited to, any one or more of the following events: (1) failure by the Developer to pay,
in a timely manner including but not limited to all real estate property taxes, utility charges, and
assessments with respect to the development property; (2) failure by the. Developer to construct the
Developer Installed Improvements pursuant to the terms, conditions and limitations of this Development
Contract; (3) failure by the Developer to observe or perform any covenant, condition, obligation or
agreement on its part to be observed or performed under this Development Contract; (4) transfer of any
interest in the Plat without prior written approval by the City Council (for the purpose of this paragraph, the
sale of a lot, except an outlot, to a builder is not an event of default); (5) failure to correct any warranty
Page 12
deficiencies; (6) failure by the Developer to reimburse the City for any costs incurred by the City in
connection with this Development Contract; (7) failure by the Developer to renew the Irrevocable Letter of
Credit at least forty -five (45) days prior to its expiration date ; (8) receipt by the City from the Developer's
insurer of a notice of pending termination of insurance; (9) failure to maintain a current insurance
certificate on file with the City meeting City requirements; (10) failure to maintain an Irrevocable Letter of
Credit or security in good standing; (11) a breach of any material provision of this Development Contract.
With respect to this paragraph, "material provision" shall be construed broadly to offer the City the firllest
protection and recourse possible.
B. Event of Default - Remedies. Whenever an Event of Default occurs, the City, after
providing the Developer with ten (10) days written notice in accordance with the terns of Paragraph 27 of
this Development Contract, may take any one or more of the following actions:
1. The City may suspend its performance under this Development Contract.
2. The City may cancel or suspend this Development Contract.
3. The City may draw upon or bring action upon any or all of the Securities
provided to the City pursuant to any of the terms of this Development Contract.
4. The City may take whatever action, including legal or administrative action,
which may be necessary or desirable to the City to collect any payments due under this Development
Contract or to enforce performance and/or observance of any obligation, agreement or covenant of
development under this Development Contract.
5. The City may suspend issuance of building permits and/or certificates of
occupancy on any of the lots, including those lots sold to third parties.
6. The City may draw upon the Irrevocable Letter of Credit if the City receives
notice that the bank elects not to renew the Irrevocable Letter of Credit.
Page 13
7. The City may, at its option, install or complete the Developer Installed
Improvements using the Irrevocable Letter of Credit to pay for the related costs.
8. Suspend the release of any escrowed dollars.
9. Use of escrow dollars or other security to satisfy any outstanding financial
obligations to the City including, but not limited to, all real estate property taxes, utility charges, and
assessments with respect to the development property;
10. Any fees incurred by the City associated with enforcing any of the
provisions set out in sections 1 -9 above shall be the sole responsibility of the Developer.
C. Election of Remedies. None of the actions set forth in this Section are exclusive or
otherwise limit the City in any manner.
27. ]YOTICES Required Notices to the Developer regarding Paragraphs 10 and 11 shall be
in writing, and shall be either hand delivered to the Developer, its employees or agents, or mailed to the
Developer by certified mail at the following address: 5406 Nokomis Avenue South, Minneapolis, MN
55417. Notices to the City shall be in writing and shall be either hand delivered to the City Manager, or
mailed to the City by certified mail in care of the City Manager at the following address: City of Prior
Lake, 4646 Dakota Street SE, Prior Lake, Minnesota 55372.1714. Concurrent with providing Notice to
the City, Notice(s) shall be served upon the City Attorney Suesan Lea Pace, Esq. at Halleland Lewis
Nilan & Johnson, 600 US Bank Plaza South, 220 South Sixth Street, Minneapolis, Minnesota, 55402-
4501.
28, UWE6181ELCAT ION Developer shall indemnify, defend, and hold the City, its Council,
agents, employees, attorneys and representatives harmless against and in respect of any and all claims,
demands, actions, suits, proceedings, liens, losses, costs, expenses, obligations, liabilities, damages,
recoveries, and deficiencies, including interest, penalties, and attorneys' fees, that the City incurs or suffers,
Page 14
which arise out of, result from or relate to this Development Contract. The responsibility to indemnify and
hold the City harmless from claims arising out of or resulting from the actions or inactions of the City, its
Council, agents, employees, attorneys and representatives does not extend to any willful or intentional
misconduct on the part of any of these individuals.
29. NO TH RD PARTY fiECOLIRSF,. The City and Developer agree that third parties shall
have no recourse against the City under this Development Contract. The Developer agrees that any party
allegedly injured or aggrieved as a result of the City's approval of the Plat shall seek recourse against the
Developer or the Developer's agents. In all such matters, including court actions, the Developer agrees that
the indemnification and hold harmless provisions set out in Paragraph 28 shall apply to said actions.
30. REC4R nLRTG DUVET yME'NT COIVTRAC_T. This Development Contract shall run
with the land. The Developer, at its sole cost and expense, shall record this Development Contract against
the title to the property within sixty (60) days of the City Council's approval of the Development Contract.
The Developer shall provide the City with a recorded copy of the Development Contract. The Developer
covenants with the City, its successors and assigns, that the Developer is well seized in fee title of the
property being final platted and /or has obtained consents to this Development Contract, in the form
attached hereto, from all parties who have an interest in the property; that there are no unrecorded interests
in the property being final platted; and that the Developer indemnifies and holds the City harmless for any
breach of the foregoing covenants.
31. SPECIAL PROVISIOL , The following special provisions shall apply to Plat
development:
A. Compliance with all of the conditions listed in the Resolution approving the final
Plat.
Page 15
B. The Developer is required to submit the final Plat in electronic format. The
electronic format shall be compatible with the City's current software. In addition, upon completion of the
project the Developer shall provide the City with as -built utility plans in electronic for►nat compatible with
the City's cuirent software and with layers, colors, and line -types formatted in accordance with City
standards. Additionally, three (3) full size (22 X 34 inch) paper copies and one (1) reduced (11 X 17 inch)
copy shall be certified and submitted to the City.
C. The Developer hereby waives any claim against the City for removal of signs placed
in the right -of -way in violation of the City Zoning Ordinance and State Statutes. The City shall not be
responsible for any damage to, or loss of, signs removed pursuant to this provision.
32. 1b UCELLAN D
A. Compliance With Other Laws. The Developer represents to the City that the Plat
complies with all county, metropolitan, state, and federal laws and regulations, including but not limited to:
subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the
Plat does not comply, the City may, at its option, refuse to allow construction or development work in the
Plat until the Developer does comply. Upon the City's demand, the Developer shall cease work until there
is compliance.
B. Severability. If any portion, section, subsection, sentence, clause, paragraph, or
phrase of this Development Contract is for any reason held invalid, such decision shall not affect the
validity of the remaining portion of this Development Contract.
C. Amendments. There shall be no amendments to this Development Contract unless
in writing, signed by the parties and approved by resolution of the City Council. The City's failure to
promptly take legal action to enforce this Development Contract shall not be a waiver or release.
Page 16
D. Assignment. The Developer may not assign this Development Contract without the
prior written approval of the City Council. The Developer's obligation hereunder shall continue in Rill force
and effect even if the Developer sells one or more lots, the entire Plat, or any part of it.
E. Interpretation. This Development Contract shall be interpreted in accordance with
and governed by the laws of the State of Minnesota. The words herein and hereof and words of similar
import, without reference to any particular section or subdivision, refer to this Development Contract as a
whole rather than to any particular section or subdivision hereof. Titles in this Development Contract are
inserted for convenience of reference only and shall be disregarded in constructing or interpreting any of its
provisions.
F. Jurisdiction. This Development Contract shall be governed by the laws of the State
of Minnesota.
Page 17
CITY OF PRIOR LAKE
Bv:
(SEAL) Mike Myser, Mayor
By:
Frank Boyles, City Manager
DEVELOPER:
Bv:
Its:
By:
Its:
STATE OF MINNESOTA )
( ss.
COUNTY OF SCOTT)
The foregoing instrument was acknowledged before me this day of , 2a_,
by Mike Myser, Mayor, and by Frank Boyles, City Manager, of the City of Prior Lake, a Minnesota
municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City
Council.
NOTARY PUBLIC
STATE OF MINNESOTA )
(ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
by
NOTARY PUBLIC
DRAFTED BY:
City of Prior Lake
4646 Dakota Street SE
Prior Lake, Minnesota 55372
Page 18
FEE OWNER CONSENT
TO
DEVELOPMENT CONTRACT
, fee owners of all or part of
the subject property, the development of which is governed by the foregoing Development Contract, affirm
and consent to the provisions thereof and agree to be bound by the provisions as the same may apply to that
portion of the subject property owned by them.
Dated this day of , 20
STATE OF MINNESOTA )
(ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
20 , by
NOTARY PUBLIC
DRAFTED BY:
City of Prior Lake
4646 Dakota Street SE
Prior Lake, Minnesota 55372
Page 19
MORTGAGEE CONSENT
TO
DEVELOPMENT CONTRACT
which holds a mortgage on
the subject property, the development of which is governed by the foregoing Development Contract, agrees
that the Development Contract shall remain in fiill force and effect even if it forecloses on its mortgage.
Dated this day of , 20
STATE OF MINNESOTA )
(ss.
COUNTY OF )
The foregoing instillment was acknowledged before ine this day of
20 by
NOTARY PUBLIC
I W ;:
City of Prior Lake
4646 Dakota Street SE
Prior Lake, Minnesota 55372
Page 20
CONTRACT PURCHASER CONSENT
TO
DEVELOPMENT CONTRACT
, which/who has a
contract purchaser's interest in all or part of the subject property, the development of which is governed by
the foregoing Development Contract, hereby affirms and consents to the provisions thereof and agrees to be
bound by the provisions as the same may apply to that portion of the subject property in which there is a
contract purchaser's interest.
Dated this day of '520
STATE OF MINNESOTA )
(ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
20 by
NOTARY PUBLIC
DRAFTED BY:
City of Prior Lake
4646 Dakota Street SE
Prior Lake, Minnesota 55372
day of
Page 21
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EXHIBIT `B"
SAMPLE IRREVOCABLE LETTER OF CREDIT
TO: City of Prior Lake
4646 Dakota Street SE
Prior Lake, Minnesota 55372
Dear Sir or Madam:
No. _
Date:
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 dra -svn on sight on the undersigned bank.
The draft must:
a) Bear the clause, "Drawn under Letter of Credit No. , dated , 20, of
(Name ofBankj --
b) Be signed by the Mayor or City Manager of the City of Prior Lake.
c) Be presented for payment at Address of Bank on or before 4:00 p.m. on December 31, 20
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 December 31 of each year), the Bank delivers written
notice to the Prior Lake 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: Prior Lake City Manager, Prior Lake City Hall,
4646 Dakota Street SE, Prior Lake, Minnesota 55372 -1714, and is physically received by the City Manager at least
forty-five (45) 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, hnter national Chamber of Commerce Publication No. 400.
We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly honored
upon presentation.
BY:
Its
Page 23
Exhibit C
To
Development Contract
The Bluffs Of Candy Cove - Estimated Construction Costs
10/30/2011
Estimated Construction Costs
$ 14,000
Tree Removal & Stumping (1 acre x $14,000 /acre)
$ 10,000
Storm Water Structures (2 - 8' structures at $4,000 /ea. + 1- 27" structure at $2,000 /ea.)
$ 70,400
Retaining walls at entrance and on lake side (4,400 SF of wall (city estimate) x $16 /SF
$ 15,000
Utilities - sewer & water to lot fines (3 sanitary/water stubs x $5,000 /each)
$ 20,000
Grading to install access drive (1 acre x $20,000 /acre)
$ 60,000
Dirt Hauling - Removal from site (10,000 Cubic Yards x $6.00 /CY)
$ 24,000
Concrete (4,800 SF x $5.00 /SF)
$ -
Aggregate Base (under concrete) - Slab to be poured on dirt
$ -
Landscaping
$ 715
Reseeding (1.3 acres x $550 /acre)
$ 600
Erosion Control Blanket (3,000 SF x $0.20/SF)
$ 22,400
Tree replacement (280 inches x $80 /inch)
$ 1,650
Silt Fence (1,100 LF x $1.50 /1-F)
$ 635
Rock Construction Entrance
$ 2,000
Testing, engineering ($2,000 lump sum)
$ 241,400
Total Construction Cost
$ 301,750
Total Security Amount (125% of improvement Costs)
EXHIBIT "D"
TO
DEVELOPMENT CONTRACT
CONDITIONS OF PLAT APPROVAL
1. A current title opinion or commitment of title insurance is submitted acceptable to the City Attorney.
2. Payment of all fees prior to release of the final plat mylars.
3. Reductions of the entire final plat be submitted, to the following scales: 1" = 800'; 1" = 200'; and
one reduction at no scale which fits onto an 81/2" a 11" sheet of paper.
4. Four mylar sets of the final plat with all required signatures are submitted.
5. The developer provides development fees, acceptable to the City Engineer prior to release of the
final plat mylars.
6. The final plat and all pertinent documents must be filed with Scott County within 60 days from the
date of final plat approval. Failure to record the documents by January 21, 2012 will render the final
plat null and void.
Page 25