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HomeMy WebLinkAbout4F - Shepherd's Path MEETING DATE: AGENDA #: PREPARED BY: AGENDA ITEM: DISCUSSION: CITY COUNCIL AGENDA REPORT SEPTEMBER 16, 2002 4F JANE KANSIER, PLANNING COORDINATOR CONSIDER APPROVAL OF A RESOLUTION AUTHORIZING EXECUTION OF A DEVELOPMENT CONTRACT FOR THE EXTENSION OF PUBLIC SERVICES FOR SHEPHERD'S PATH History: The purpose ofthis agenda item is to consider approval of a Development Contract for the extension of public services, including sanitary sewer, water main and storm sewer, for Shepherd's Path. Shepherd's Path has filed an application for approval of a site plan to allow the construction of a new church on the property located north of CSAH 42 and immediately south and west of McKenna Road, in Section 22, Township 115, Range 22, Scott County. The property is zoned R-4 (High Density Residential); churches are a permitted use in the district. There is no platting involved in this request. Current Circumstances: The staff reviewed the proposed site plan and determined the extension of public sewer and water service from CSAH 42 is required to serve the property. Furthermore, these services need to be extended to the northerly property line to service the adjacent property in the future. The new church is the first phase of a planned multi-phase development, which is expected to include housing, education, and other construction. The property is not being platted at this time, but must be platted prior to any future phases. The Issues: The attached Development Contract is based on the standard development contract for subdivisions. Paragraphs within the standard contract that would not apply to this development have been removed. The Development Contract establishes the required development fees, securities, warranties, and other specific information relating to the public improvements. It should also be noted that the fees that are in the contract are based on a 13 acre portion of the site, rather than the entire 60 acres. This recognizes the fact that the 1:\01 files\Ol siteplan\shepherds path\cc report.doc Page 1 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (~52) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER FISCAL IMPACT: AL TERNATIVES: RECOMMENDED MOTION: REVIEWED BY: property will be platted in the future, and additional fees will be collected at that time. Another issue pertaining to this development is the runoff from this site to the wetland on the adjacent DNR property. The City staff and Shepherd's Path have been working with the DNR to obtain an easement for this drainage. All of the necessary documents have been submitted and the DNR is currently reviewing this request. The staff expects the easement to be granted, but we will not allow construction to begin until the DNR has officially approved these documents. Conclusion: Shepherd's Path has received a copy of Development Contract and is reviewing this document. The City Attorney has also received and is reviewing the Development Contract. Staffwill be available to discuss the details of the agreement and the development contract with the Council. Budf!et Impact: Approval of this Development Contract will allow Shepherd's Path to construct the new church. The City Council has three alternatives: 1. Adopt a resolution approving the Development Contract for Shepherd's Path. 2. Deny the resolution approving the Development Contract for Shepherd's Path. 3. Defer this item and provide staffwith specific direction. Staff recommends Alternative #1. This requires the following motion: 1. A motion and second to adopt a resolution approving the Development Contract for Shepherd's Path, and authorizing the Mayor and City anager to sign the Development Contract. 1:\01 files\O 1 siteplan\shepherds path\cc report. doc Page 2 RESOLUTION 02~ I S .3 ~/NNESO~~ R OLUTION OF THE PRIOR LAKE CITY COUNCIL APPROVING THE DEVELOPMENT CONTRACT FOR SHEPHERD'S PATH MOTION BY: SECOND BY: WHEREAS: Shepherd's Path is proposing to construct an addition to the existing Church on property legally described in Exhibit A; and WHEREAS: The Development Contract allows the Shepherd's. Path to extend public services for this project; and WHEREAS: The Development Contract spells out the City's obligations and Shepherd's Path's obligations in the installation of these public improvements; and WHEREAS: The City Council has approved the Development Contract for Shepherd's Path. NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF PRIOR LAKE, MINNESOTA: 1. The recitals set forth above are incorporated herein as if fully set forth. 2. The Mayor and City Manager are hereby authorized to execute the Development Contract for Shepherd's Path on behalf of the City. Passed and adopted this 16th day of September, 2002. \ YES NO Haugen \ Haugen Gundlach \ Gundlach LeMair \ LeMair Petersen \ Petersen Zieska \ Zieska >T Frank Boyles, City Manager 1:\01files\01siteplan\shepherds path\contract resolution.doc Page 1 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER _,.......,~,.._,.~,.._~.d't.".._'___.__---=-"~_'~~._..'"._'____~_;.....~............._..."."_.__~v.__~,~._.__..."......__.~__..*...~'~_~-,,~.~---_... -"_._~.......~- Location Map I z ] Shepherd's Path Site \ ~\ '@, " 1"OTli ST HW ~ ,,~. . ( 50 I o 50 Feet I N + DEVELOPMENT CONTRACT SHEPHERD'S PATH PROJECT #00-31 This DEVELOPMENT CONTRACT is entered into this 16th day of September, 2002, by and between the CITY OF PRIOR LAKE, a Minnesota municipal corporation ("City"), and Shepherd's Path, a Minnesota (the "Developer"). 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. REQUEST FOR SITE PLAN APPROVAL. The Developer has asked the City to approve a Site Plan for Shepherd's Path, which includes the construction of a new church and infrastructure (referred to in this Development Contract as the "Plan"). The land is legally described as shown on attached Exhibit A which is incorporated herein as if fully set forth. 2. CONDITIONS OF PLAN APPROVAL. The City hereby approves the Plan on condition that the Developer enter into this Development Contract, furnish the Security required by it, and record the 1:\01 files\OI siteplan\shepherds path\development contract2.doc 9/1 1/02 Page 1 ---4.-.....-..l..-.......-..-.-...-.--..-----.-.~.+- .....-. ...-.....--...... ...........-.-.......-.. Development Contract with the County Recorder or Registrar of Titles within 90 days after the City Council approves the final Plat. 3. RIGHT TO PROCEED. Within the land to be developed, the Developer may not construct sewer lines, water lines, streets, utilities, public or private improvements, or any buildings 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 City Engineer or Designee has issued a letter that all conditions have been satisfied and that the Developer may proceed. 4. PHASED DEVELOPMENT. If the Plan is a phase of a multiphased Plan, the City may refuse to approve Final Plats of subsequent phases if the Developer has breached this Development Contract or any terms or conditions set out in the Resolution approving the Development Contract and the breach has not been remedied. Development of subsequent phases may not proceed until the City approves Development Contracts for such phases. Fees and charges collected by the City in connection with infrastructure, and public improvements are being imposed on 13 acres of the Developer's property and are not being imposed on any undeveloped land owned by the Developer. Such charges will be calculated and imposed when the land is platted. The 13 acres included within this contract will not be charged additional fees in connection with infrastructure and public improvements. 5. DEVELOPMENT 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 part of this Development Contract as if fully set forth herein. If the plans vary from the written terms of this Development Contract, the more specific or stringent controls shall apply. The Plans are: Plan A -- Final Plan Dated (prepared by ) 1:\01 files\O 1 siteplan\shepherds path\deveJopment contract2.doc 9/1 1/02 Page 2 Plan B -- Final Grading, Development, and Erosion Control Planes) Dated (Prepared by ) Plan C-- One set of Plans and Specifications for Developer Installed Improvements Dated (Prepared by ) All plans set forth above are incorporated herein and made part ofthis Development Contract. 6. DEVELOPER INSTALLED IMPROVEMENTS. The Developer shall install and pay for the following: A. Sanitary Sewer System B. Water System C. Storm Sewer D. Site Grading and Ponding E. Underground Utilities The Developer Installed Improvements shall be installed in accordance with the City's Subdivision Ordinance, City standard specifications for utilities and street construction, the City's Public Works Design Manual, and any other applicable City ordinances, all of which are incorporated herein by reference. The Developer shall submit plans and specifications, which have been prepared by a Minnesota registered professional civil engineer to the City for approval by the City Engineer. 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. The Developer, its contractors and subcontractors, shall follow all instructions received from the City's authorized personnel. The Developer or the Developer's engineer shall schedule a preconstruction meeting with all parties concerned, including the City staff, to review the program for the construction work. Before the Security for the completion of utilities is released, iron monuments must be installed in accordance with Minn. Stat. 9505.02. The Developer's surveyor shall submit a written notice to the City certifying that the monuments have been installed. 1:\01 files\Ol siteplan\shepherds path\development contract2.doc 9/1 1/02 Page 3 7. CONSTRUCTION OBSERVATION The City's authorized personnel shall provide construction observation during the installation of the Developer Installed Improvements in accordance with the Public Works Design Manual. These services by the City shall include: A. Construction observation during installation of required Developer Installed Improvements, which include grading, sanitary sewer, watermain, storm sewer/ponding and street system. B. Documentation of construction work and all testing of Developer Installed Improvements. C. As-built location dimensions for sanitary sewer, watermain and storm sewer facilities. 8. DEVELOPER PROVIDED CONSTRUCTION SERVICES. The Developer shall be responsible for providing all other construction services including, but not limited to: A. Con&ructionsurve~ng 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. (Tie dimensions to sewer and water services from City staff or City consultants.) 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. 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. 9. 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 1: \01 files\O I siteplan \shepherds path \development contract2.doc 9/11/02 Page 4 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. 10. TIME OF PERFORMANCE. The Developer shall install all required public improvements by October 31,2003, with the exception of the final wear course of asphalt on streets. The final wear course on streets shall be installed the first summer after the base layer of asphalt has been in place for one freeze thaw cycle. The Developer and the City shall consult about an extension of time. Ifan extension is granted, it shall be in writing and conditioned upon updating the Security posted by the Developer to reflect cost increases and the extended completion date. 11. LICENSE. 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 ofthe Plat. 12. EROSION CONTROL. Prior to initiating site grading, the erosion control plan, Plan B, shall be implemented by the Developer and inspected and approved by the City. The City may impose, at no cost to the City, additional erosion control requirements 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 1:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/1 1/02 Page 5 .-.....-- -~<.~--~ r-'.--'" ....-.----.----.- - .-.... 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 34 shall not apply to notifications to the Developer under this paragraph. 13. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from 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 further 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 draw down, without further notice, the Irrevocable Letter of Credit to pay any costs. The notice provisions set out in Paragraph 39 shall not apply to notifications to the Developer under this paragraph. 14. GRADING PLAN. A. The Plat shall be graded in accordance with the approved grading, development and erosion control planes), (Plan B). The plans and 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 easements or land owned by the City. 1:\01 files\OI siteplan\shepherds path\development contract2.doc 9/11/02 Page 6 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 comers and house pads. The City may withhold issuance of building pennits until the approved certified grading plan is on file with the City and all erosion control measures are in place as detennined by the City Engineer. 15. OWNERSHIP OF DEVELOPER INSTALLED IMPROVEMENTS. Upon completion of the Developer Installed Improvements required by this Development Contract and final written acceptance by the City Engineer, the improvements lying within public right-of-way and easements shall become City property without further notice or action. 16. STREET MAINTENANCE. Developer shall be responsible for all street maintenance until final written acceptance by the City of the Developer Installed Improvements. Waming signs and detour signs, if determined to be necessary by the City Engineer, shall be placed when hazards develop in streets to prevent the public from traveling on same and directing attention to detours. If and when streets become impassable, such streets shall be barricaded and closed. For the purpose of this subparagraph, "street maintenance" does not include snow plowing or normal sweeping. 17. CONSTRUCTION ACCESS. Construction traffic access and egress for grading, public utility construction, and street construction is restricted. to McKenna Road. No construction traffic is permitted on the adjacent local streets. 18. IMPROVEMENTS REOUIRED BEFORE ISSUANCE OF BUILDING PERMITS. A. A 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. 1:\01 files\OI siteplan\shepherds path\development contract2.doc 9/11/02 Page 7 . ..... '1 . -..----..-.--... - "-.-..'--"'-" ,..,._~ ,. .. .... 19. CITY ADMINISTRATION. 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, and processing of requests for reduction in security. Fees for this service shall be four percent (4%) of the estimated construction cost as detailed in Exhibit E, less oversizing costs outlined in Exhibit D, Section A, assuming normal construction and project scheduling. 20. REIMBURSEMENT OF CITY ADMINISTRATION FEES. Once the City approves the construction costs or estimates for the Developer Installed Improvements there will not be any reimbursement to the City by the Developer or to the Developer by the City for City Administration fees. 21. CITY CONSTRUCTION OBSERVATION. Construction observation shall include, but is not limited to, part or full-time inspection of proposed grading, public utilities and street construction and City legal expenses. The Developer shall deposit an amount equal to five percent (5%) of the estimated construction cost, less oversizing costs outlined in Exhibit D, Section A, for construction observation performed by the City's authorized personnel and incurred pass-through legal expenses. This amount shall be maintained by the City in escrow until final acceptance of all Developer Installed Improvements by the City. Any balance remaining in the escrow account will be returned to the Developer at that time. Extraordinary costs incurred by the City over and above the five percent (5%) Construction Observation fee shall be billed to the Developer. Extraordinary costs are defined as costs resulting from change orders applied to the project and costs incurred as a result of unknown conditions at the time of design. 22. STORM WATER MANAGEMENT FEE. The Developer shall pay a storm water management fee of $63,128.00 prior to the City signing the building permit. The amount was calculated as 1:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/11/02 Page 8 - follows: 13 acres at $4,856.00 per acre. This calculation was determined by the Trunk Storm Sewer Fee Determination Study adopted by City Council Resolution #01-03 on January 8, 2001. 23. SANITARY SEWER AND WATERMAIN TRUNK AREA CHARGES. A Sanitary sewer and watermain trunk: area charge of $45,500.00 shall be paid by the Developer for sanitary sewer and watermain trunk: improvements prior to the City signing the building permit. The amount was calculated as follows: 13 acres at $3500.00 per acre. 24. CITY-WIDE COLLECTOR STREET CONSTRUCTION CHARGE. This Development Contract requires the Developer to pay a City-wide Collector Street Construction Charge of$19,500.00 for collector street improvements prior to the City signing the building permit. The amount was calculated as follows: 13 acres at $1500.00 per acre. 25 PARK AND TRAIL DEDICATION. Park and Trail dedication will be required when the plat for this entire area is approved. The Developer, at that time, shall dedicate to the public an amount of cash or land or a combination of both as established by the City. This calculation was determined by the Park Fee Study adopted by City Council Resolution #01-10 on February 5, 2001. The required amount of dedication of land or cash payment shall be determined by the provisions of Section 1004.1000 if the City Subdivision Ordinance, or by the fee scheduled adopted by resolution of the City Council. The fee shall be paid prior to the City signing the final Plat. The Developer shall provide the City with a warranty deed for any land described as an outlot or a lot rather than park on the final plat. 26. SECURITY. 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 Improvements, the Developer shall furnish the City with an Irrevocable Letter of Credit in an amount equal to 125% of the estimated Developer Improvement Costs. The Irrevocable Letter of Credit ("Security") 1:\01 files\OI siteplan\shepherds path\development contract2.doc 911 1/02 Page 9 shall be in the form attached hereto as Exhibit B, from a bank for $378,933.81. The amount of the Security was calculated as follows: DEVELOPER INSTALLED IMPROVEMENTS COSTS: Sanitary Sewer $ 64,189.60 Watermain $ 62,634.73 Storm Sewer $ 143,086.72 Streets/Sidewalks/Trails $ 0.00 Street Signs $ 0.00 Traffic Control Signs $ 0.00 Erosion Control $ 0.00 Restoration/Miscellaneous $ 33,236.00 ESTIMATED DEVELOPER INSTALLED IMPROVEMENTS SUBTOTAL $ 303,147.05 X 1.25 TOTAL FOR IRREVOCABLE LETTER OF CREDIT AMOUNT $ 378,933.81 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 Security shall be for a term ending December 31,2003. 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. lfthe Security is drawn down, the proceeds shall be used to cure the default. 1:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/11/02 Page 10 27. CITY DEVELOPMENT FEES. The Developer shall also furnish the City with a cash fee of$155,411.23 for City Development Fees. The amount of the cash fee was calculated as follows: CITY DEVELOPMENT FEES: City Administration Fee (4%) $ 12,125.88 City Construction Observation (5%) $ 15,157.35 Storm Water Management Fee $ 63,128.00 Sanitary Sewer and Watermain Trunk Area Charges $ 45,500.00 City- Wide Collector Street Construction Charge $ 19,500.00 Park and Trail Dedication Fee $ 0.00 TOTAL CITY DEVELOPMENT FEES $ 155,411.23 28. REDUCTION OF SECURITY. 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%) of the Security shall be retained until all 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. 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. 1:\0 I files\O I siteplan\shepherds path\development contract2.doc 9/11/02 Page II 29. 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 warranty period for streets is one year. The warranty period for underground utilities is two years. The warranty period on Developer Installed Improvements shall commence on the date the City Engineer issues written acceptance of the improvement. The Developer shall post warranty bonds as security. The City shall retain twenty-five percent (25%) of the Security posted by the Developer until the City Engineer accepts the Developer Installed Improvements and the warranty bonds are furnished to the City. All punch list items must be completed and "as-built" drawings received prior to the commencement 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. 30. OVERSIZING. City and Developer agree that the Developer Installed Improvements should be oversized for the benefit of future development. Oversizing is the construction of a Developer Installed Improvement to City specifications that exceeds those that would otherwise be required of the Developer. Oversizing improvements include, but are not limited to, sanitary sewer, water, storm drainage facilities, and road improvements. If the City Engineer determines that oversizing is required, the City shall reimburse the Developer for the costs associated with this work and as approved in this contract. City and Developer agree that the cost of system oversizing to be reimbursed to the Developer is $0.00 based upon a cost estimate by the City Engineer as determined by an engineer's estimate or contractors bid to be provided by the Developer and application of the City's Assessment Policy based on a final engineering design. The calculation for oversizing is attached as Exhibit D. 31. CLAIMS. 1:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/11/02 Page 12 A. City Authorized to Commence Interpleader Action. In the event that the City receives claims from labor, materialmen, or others that work required by this Development Contract has been performed, the sums due them have not been paid, and the laborers, materialmen, or others are seeking payment from the City, the Developer hereby authorizes the City to commence an Interpleader action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Courts, to draw upon the Irrevocable Letter of Credit Security in an amount up to 125% of the claim(s) and deposit the funds in compliance with the Rule, and upon such deposit, the Developer shall release, discharge, and dismiss the City from any further proceedings as it pertains to the letters of credit deposited with the District Court, except that the Court shall retain jurisdiction to determine attorneys' fees pursuant to this Development Contract. B. Prompt Payment to Subcontractors Required. The Developer shall pay any subcontractor within ten (10) days of the Developer's receipt of payment by the City for undisputed services provided by the subcontractor. If the Developer fails within that time to pay the subcontractor any undisputed amount for which the Developer has received payment by the City, the Developer shall pay interest to the subcontractor on the unpaid amount at the rate of 1 ~ percent (1.5%) per month or any part of a month. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $10. For an unpaid balance of less than $100, the Developer shall pay the actual interest penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from the Developer shall be awarded its costs and disbursement, including attorney's fees. incurred in bringing the action. (See Minn. Stat. ~471.425, Subd. 4a.) 32. RESPONSIBILITY FOR COSTS. A. The Developer shall reimburse the City for costs incurred in the enforcement of this Development Contract, including engineering and attorneys' fees. 1:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/11/02 Page 13 ~_.__._,....._---------,---._-,~~".,.., . B. Except as provided in Paragraphs 12 and 13r/,iof this Development Contract, the Developer shall pay in full 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 full. 33. DEVELOPER'S DEFAULT. A. Definition. In the context of this Development Contract, "Event of Default" shall include, but not be limited to, anyone or more of the following events: (1) failure by the Developer to pay, in a timely manner, all real estate property taxes 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; (5) failure to correct any warranty 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) 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 fullest 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 terms of Paragraph 39 of this Development Contract, may take anyone or more ofthe following actions: 1. The City may suspend its performance under this Development Contract. 2. The City may cancel or suspend this Development Contract. 1:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/11/02 Page 14 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, in this Plat. 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. 7. The City may, at its option, install or complete the Developer Installed Improvements. 8. Any fees incurred by the City associated with enforcing any of the provisions set out in sections 1-7 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 othelWise limit the City in any manner. 34. NOTICES. Whenever any paragraph in this Development Contract, with the exception of paragraphs 12 and 13, requires Notice to be provided to the Developer, the notice shall include the following: (1) the nature of the breach of the term or condition that requires compliance by the Developer, or the Event of Default that has occurred; (2) what the Developer must do to cure the breach or remedy the Event of Defau1t; and (3) the time the developer has to cure the breach or remedy the Event of Default. Required Notices to the Developer 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: 1:\01 files\OI siteplan\shepherds path\development contract2.doc 91\ 1/02 Page 15 -~-~._"-""'~"'--"'------_._~~~---"._~._..,._,._.. . 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, 16200 Eagle Creek Avenue, 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 Sipkins & Johnson, Pillsbury Center South, 220 South Sixth Street, Suite 600, Minneapolis, Minnesota, 55402-4501. 35. INDEMNIFICATION. 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, 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. 36. NO THIRD PARTY RECOURSE. 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 35 shall apply to said actions. 37. INSURANCE REOUIREMENTS. Developer, at its sole cost and expense, shall take out and maintain or cause to be taken out and maintained, until the expiration of the warranty period(s) on the Developer Installed Improvements, public liability and property damage insurance covering personal injury, including death, and claims for property damage which may arise out of Developer's work or the 1:\01 files\OI siteplan\shepherds path\development contract2.doc 9/11/02 Page 16 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 $1,000,000 for one person and $2,000,000 for each occurrence; limits for property damage shall be not less than $500,000 for each occurrence; or II combination single limit policy of $1 ,000,000 or more. 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 signing the Plat. The certificate shall provide that the City must be given thirty (30) days advance written notice of the cancellation of the insurance. The Certificate shall be in the form attached hereto as Exhibit C. 38. RECORDING DEVELOPMENT CONTRACT. This Development Contract shall run with the land. The Developer, at it's sole cost and expense, shall record this Development Contract against the title to the property within ninety (90) 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. 39. MISCELLANEOUS. 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. ]:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/11/02 Page 17 1-- ... 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. 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 full 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. Jurisdicition. This Development Contract shall be governed by the laws of the State of Minnesota. CITY OF PRIOR LAKE (SEAL) By: Jack G. Haugen, Mayor By: Frank Boyles, City Manager 1:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/11/02 Page 18 DEVELOPER: By: Its: By: Its: STATE OF MINNESOTA ) ( ss. COUNTY OF SCOTT) The foregoing instrument was acknowledged before me this _ day of ,20_, by Jack G. Haugen, 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 STATEOFMINNESOTA ) ( S8. COUNTY OF ) The foregoing instrument was acknowledged before me this day of ,20_, by NOTARY PUBLIC DRAFTED BY: City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, Minnesota 55372 ]:\0] files\OI siteplan\shepherds path\development contract2.doc 9/11/02 Page 19 1-....--...--...---......---------------.---'--- ......-..............---............------...--..-..-----..-..-... .......-..--......------.-...--.-.....--,.-. 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 16200 Eagle Creek Avenue SE Prior Lake, Minnesota 55372 I: \01 files\O 1 siteplan \shepherds path \development contract2.doc 9/11/02 Page 20 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 full force and effect even if it forecloses on its mortgage. Dated this _ day of ,20_. STATEOFMINNESOTA ) ( S8. COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of 20_, by NOTARY PUBLIC DRAFTED BY: City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, Minnesota 55372 1:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/1\102 Page 21 ~~-'- ... .c.~.._ . -----... .---.... .....1.. ,_. .--t.. .^__"..............'___0..._____....._,....._,~ .,,_... .,"~_. ."." ....,...,....~_._~,. _n_........ _..~._.,,~.~_._.._...._____...... .-.__._ ._.."....._ "._._"_"_..~._.~.__~'_.__..,._--_~_....____"._~.._~,,_._~. 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 ,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 16200 Eagle Creek Avenue SE Prior Lake, Minnesota 55372 1:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/11/02 Page 22 EXHIBIT" A" TO DEVELOPMENT CONTRACT Legal Description of Property to be developed as Shepherd's Path: That part ofthe east 101.63 feet of the Southeast Quarter of the Southwest Quarter of Section 22, Township 115, Range 22, Scott County, Minnesota lying south of the north 66.00 feet of said Southeast Quarter of the Southwest Quarter of Section 22. Together with that part of the Southwest Quarter of the Southeast Quarter of said Section 22, lying westerly of the east 515.31 feet of said Southwest Quarter of the Southeast Quarter of Section 22. Except the north 66.00 feet of the west 33.00 feet of said Southwest Quarter of the Southeast Quarter of Section 22. Also except the east 1200.00 feet of the south 800.00 feet of said Southwest Quarter of the Southeast Quarter of Section 22. 1:\01 files\OI siteplan\shepherds path\development contract2.doc 9/11/02 Page 23 EXHIBIT "B" SAMPLE IRREVOCABLE LETTER OF CREDIT No. Date: TO: City of Prior Lake 16200 Eagle Creek Avenue Prior Lake, Minnesota 55372-1715 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. (Name of Bank) "; , dated , 20_, of 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 November 30, 20_. This Letter of Credit shall automatically renew for successive om~.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 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 lea;t forty-five (45) days prior to the next annual renewal date addressed as follows: Prior Lake City Manager, Prior Lake City Hall, 16200 Eagle Creek Avenue, Prior Lake, Minnesota 55372-1714, and is actually 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 herin. 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 fir Documentary Credits, International 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 1 :\0 1 files\O 1 siteplan\shepherds path\development contract2.doc 9/11/02 Page 24 EXHIBIT "C" SAMPLE CERTIFICATE OF INSURANCE PROJECT: CERTIFICATE HOLDER: City of Prior Lake 16200 Eagle Creek Avenue Prior Lake, Minnesota 55372-1714 INSURED: ADDITIONAL INSURED: City of Prior Lake AGENT: WORKERS' COMPENSATION: Policy No. Effective Date: Expiration Date: Insurance Company: COVERAGE - Workers' Compensation, Statutory. GENERAL LIABILITY: Policy No. Effective Date: Expiration Date: Insurance Company: ( ) Claims Made ( ) Occurrence LIMITS: [Minimum) Bodily Injury and Death: $1,000,000 for one person $2,000,000 for each occurrence Property Damage: $500,000 for each occurrence -OR- Combination Single Limit Policy $1,000,000 or more COVERAGE PROVIDED: 1:\01 files\OI siteplan\shepherds path\development contract2.doc 9/11/02 Page 25 " ."[ . ._...__..___. "'-0 _'"__~"___.' ._..... ........_. _.. "_.."._. .. _.. Operations of Contractor: YES Operations of Sub-Contractor (Contingent): YES Does Personal Injury Include Claims Related to Employment? YES Completed OperationsfProducts: YES Contractual Liability (Broad Form): YES Governmental Immunity is Waived: YES Property Damage Liability Includes: Damage Due to Blasting YES Damage Due to Collapse YES Damage Due to Underground Facilities YES Broad Form Property Damage YES AUTOMOBILE LIABILITY: Policy No. Effective Date: Expiration Date: Insurance Company: (X) Any Auto LIMITS: [Minimum] Bodily Injury: $1,000,000 each person $2,000,000 each occurrence Property Damage: $500,000 each occurrence -OR- Combined Single Limit Policy: $1,000,000 each occurrence ARE ANY DEDUCTIBLES APPLICABLE TO BODILY INJURY OR PROPERTY DAMAGE ON ANY OF THE ABOVE COVERAGES: If so, list: Amount: $ [Not to exceed $1,000.00] SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL THIRTY (30) DAYS WRITTEN NOTICE TO THE PARTIES TO WHOM TIDS CERTIFICATE IS ISSUED. Dated at On BY: Authorized Insurance Representative 1:\01 files\O 1 siteplan\shepherds path\development contract2.doc 9/11/02 Page 26 EXHIBIT "D" TO DEVELOPMENT CONTRACT (Oversizing Calculations for Developer Installed Improvements) A. OVERSIZING There is no oversizing associated with this contract. 1:\01 files\Olsiteplan\shepherds path\development contract2.doc 911 1/02 Page 27 . I. ..-.--....---.--.----..------.-.---.-.......-.. EXHIBIT E TO DEVELOPMENT CONTRACT ESTIMATED CONSTRUCTION COSTS Belair Utilities Shepherd's Path Storm Sewer Qtv. Unit Description Unit Price Total Price Qtv. Unit 104 If 12" rcp cl5 $25,02 $2,601.79 1 ea 245 If 15" rcp cl5 $27.10 $6,638.48 1735 If 622 If 18" rcp cl5 $31.52 $19,607.91 6 ea 457 If 24" rcp cl3 $37.49 $17,132.32 548 If 36" rcp cl3 $77 .34 $42,382.34 104 If 18" cmp $22.03 $2,291.63 4 ea 18" aprons $455.76 $1,823.04 1 ea pond outlet control structure $3,931.77 $3,931.77 2 ea 72" cbmh $5,136.76 $10,273.52 2 ea 54" cbmh $3,066.62 $6,133.24 5 ea 48" cbmh $1,965.88 $9,829.42 2 ea 2x3 cb $1,363.39 $2,726.78 1 ea 36" fes/tg $2,014.69 $2,014.69 1 ea 15" fes/tg $995.48 $995.48 11 tn rip rap $65.85 $724.36 600 If 4" draintile $23.30 $13,979.96 Total Storm li!:i!lli~l~~!I~~i Watermain Qtv. Unit Description Unit Price Total Price 1 ea wet tap 2,869.87 2,869.87 ### If 8" dip cl52 21.64 33,936.04 350 If 6" dip cl52 18.96 6,635.16 QtV. Unit 4 ea 8" gv 1,363.39 5,453.56 1 Is 1 ea 8" riser stubbed 1'aJJ. 1,062.14 1,062.14 1 Is 2 ea hydrant 3,217.24 6,434.48 1 Is 1 Is test and flush 1,220.55 1,220.55 1 Is ### If poly wrap 1.06 2,026.48 1 Is 2 ea 8"tee 178.85 357.70 1 ea 8x6 tee 173.22 173.22 1 ea 8x6 reducer 111.16 111.16 2 ea 6" 90 89.03 178.07 1 ea 8" plug 64.17 64.17 18 ea 8" megas 42.33 761.94 12 ea 6" megas 30.28 363.36 1 ea 4" gv 986.83 986.83 Total Watermain ~ EXHIBIT E TO DEVELOPMENT CONTRACT ESTIMATED CONSTRUCTION COSTS Belair Utilities Shepherd's Path Sanitary Sewer Description Unit Price Total Price mh over existing line $3,942.14 $3,942.14 8" pvc sdr 35 $25.99 $45,101.22 48" mh $2,524.37 $15,146.24 Total Sanitary lill~af'!~![~~g Miscellaneous Description Unit Price Total Price clear/grub $500 $500 traffic control $500 $500 bedding imporrt $6,075 $6,075 dewatering $23,911 $23,911 restoration $2,250 $2,250 total misc $33,236 I .---.-.--..----_~____._____..h .-.--..---..... "__~_.,__._~"_H.._~__...____""__~'._4~._.~."__~___..__.~,_"'_.______.~__.._