HomeMy WebLinkAboutFountain Hills Contract
DEVELOPMENT CONTRACT
FOUNTAIN HILLS 2ND ADDITION
PROJECT #01-41
This DEVELOPMENT CONTRACT is entered into this l7tl1 day of June, 2002, by and
between the CITY OF PRIOR LAKE, a Minnesota municipal corporation ("City"), and Wensco, a
Minnesota corporation (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. REOUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a Plat
for Fountain Hills 2nd Addition (referred to in this Development Contract as the "Plat"). The land is legally
described as shown on attached Exhibit A which is incorporated herein as if fully set forth.
2. CONDITIONS OF PLAT APPROVAL. The City hereby approves the Plat on condition
that the Developer enter into this Development Contract, furnish the Security required by it, and record the
Plat and Development Contract with the County Recorder or Registrar of Titles within 90 days after the
City Council approves the final Plat.
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3. RIGHT TO PROCEED. Within the Plat or land to be platted, 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. The foregoing restriction on the Developer's "Right To Proceed" does not apply
to grading or other approvals set forth in Resolution No. 02-45 dated April 1, 2002, approving the
Preliminary Plat for Fountain Hills 2nd Addition.
4. PHASED DEVELOPMENT. If the Plat is a phase of a multiphased preliminary Plat, 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 Final Plat 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, public improvements and parkland dedication requirements are not being imposed on
outlots, if any, in the Plat that are designated in an approved Preliminary Plat for future subdivision into
lots and blocks. Such charges will be calculated and imposed when the outlots are subdivided into lots and
blocks.
5. PRELIMINAR Y PLA T STATUS. If the Plat is a phase of a multiphased preliminary Plat,
the Developer shall submit a Staging Plan for City Council approval which may allow the Developer more
than one (1) year to subdivide the property into lots and blocks.
6. 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
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the written terms of this Development Contract, the more specific or stringent controls shall apply. The
Plans are:
Plan A --
Final Plat Dated June 3, 2002 (Prepared by Pioneer Engineeling)
Plan B --
Final Grading, Development, and Erosion Control Planes) Dated June 3,
2002 (Prepared by Pioneer Engineering)
Plan C --
Tree Preservation and Replacement Plans Dated June 3, 2002 (Prepared by
Pioneer Engineering)
Plan D --
Landscaping Plan Dated June 3, 2002 (Prepared by Pioneer Engineering)
Plan E --
One set of Plans and Specifications for Developer Installed Improvements
Dated June 3, 2002 (Prepared by Pioneer Engineering)
Plan F --
Street Lighting Plan Dated April 18, 2002 (Prepared by MVEC)
All plans set forth above are incorporated herein and made part of this Development Contract.
7. DEVELOPER INSTALLED IMPROVEMENTS. The Developer shall install and pay for
the following:
A. Sanitary Sewer System
B. Water System
C. Storm Sewer
D. Streets
E. Concrete Curb and Gutter
F. Street Lights
G. Site Grading and Ponding
H. Underground Utilities
1. Traffic Control Signs
1. Street Signs
K. Setting ofIron Monuments
L. Sidewalks and Trails
M. Landscaping
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The Developer Installed Improvements shall be installed in accordance with the City's Subdivision
Ordinance, City standard specifications for utilities and street constmction, 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 preconstmction 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.
8. 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 constmction work and all testing of Developer Installed
Improvements.
C. As-built location dimensions for sanitary sewer, watermain and storm sewer
facilities.
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9. DEVELOPER PROVIDED CONSTRUCTION SERVICES. The Developer shall be
responsible for providing all other construction services including, but not limited to:
A. Construction surveying
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.
E. Lot comers and monuments.
10. BOULEVARD AND AREA RESTORATION. The Developer shall seed or lay cultured
sod in all boulevards within thirty (30) days, or within a time line 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.
11.
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
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City Engineer written verification by a registered land surveyor that the required monuments have been
installed throughout the plat.
12.
TIME OF PERFORMANCE.
The Developer shall install all required public
improvements by October 15, 2002, 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. If an
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.
13. 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 of the Plat.
14. 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
Developer shall fully reimburse the City for any cost incurred within ten (10) days of the date of the
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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 39 shall not apply to notifications to the Developer under this paragraph.
15. 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 perfonn the
required clean-up within 24 hours of receiving instructions and notice from the City, the City, without
further notice, will perfonn 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.
16. GRADING PLAN.
A. The Plat shall be graded in accordance with the approved grading, development and
erosion control plan(s), (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.
The as built plan shall include field verified elevations of the following: a) cross sections of ponds, b)
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location and elevations along all swales and ditches, and c) lot comers 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.
17. 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.
18. STREET MAINTENANCE. Developer shall be responsible for all street maintenance
until final written acceptance by the City of the Developer Installed Improvements. Warning 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 nonnal sweeping.
19. CONSTRUCTION ACCESS. Construction traffic access and egress for grading, public
utility construction, and street construction is restricted to Fountain Hills Drive. No construction traffic is
permitted on the adjacent local streets.
20. IMPROVEMENTS REOUIRED BEFORE ISSUANCE OF BUILDING PERMITS.
A. Grading, 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. If building
permits are issued prior to the acceptance of Developer Installed Improvements, the Developer assumes all
liability and costs resulting in delays in completion of the Developer Installed Improvements and damage
to Developer Installed Improvements caused by the City, or its agents or contractors, the Developer, its
contractors, subcontractors, material men, employees, agents or third parties.
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B. 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.
21. 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 ofrequests 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.
22. 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.
23. CITY CONSTRUCTION OBSERVATION. Construction observation shall include, but is
not limited to, part or full-time inspection of proposed gr:ading, public utilities and street constmction 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 constmction 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%) Constmction Observation
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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.
24. STORM WATER MANAGEMENT FEE. The Developer shall pay a stom1 water
management fee of $80,376.00 prior to the City signing the final Plat. The amount was calculated as
follows: 7.17 acres at $2,943.00 per acre (R-1, R-2 and R-3) and 9.73 acres at $6,092.00 per acre
(commercial and industrial). This calculation was determined by the Tnmk Storm Sewer Fee
Determination Study adopted by City Council Resolution #01-03 on January 8,2001.
25. SANITARY SEWER AND WATERMAIN TRUNK AREA CHARGES. A Sanitary sewer
and watermain tnmk area charge of $59,150.00 shall be paid by the Developer for sanitary sewer and
watermain trunk: improvements prior to the City signing the final Plat. The amount was calculated as
follows: 16.90 acres at $3500.00 per acre.
26. CITY-WIDE COLLECTOR STREET CONSTRUCTION CHARGE. This Development
Contract requires the Developer to pay a City-wide Collector Street Construction Charge of $25,350.00 for
collector street improvements prior to the City signing the final Plat. The amount was calculated as
follows: 16.90 acres at $1500.00 per acre.
27 PARK AND TRAIL DEDICATION. Park and trail dedication requirements for this plat
was satisfied in the plat of Fountain Hills Addition. No additional dedication is required.
28. STREET LIGHTS AND OPERATIONAL COSTS. The Developer is responsible for the
installation of the street lighting. The Developer shall pay the full capital cost of every light to be installed;
this includes poles, fixtures, underground wiring, and all appurtenant work. The Developer shall pay
operation and maintenance for the streetlights until the City accepts the Developer Installed Improvements,
at which time the billing shall be transferred to the City. The street light plan must be acceptable to the
City Engineer and in accordance with the Public Works Design Manual.
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29. LANDSCAPING. Landscaping for this Plat shall comply with Plan D. The cost of the
landscaping requirements shall be provided by the Developer, subject to approval by the City. Subject to
approved Plan D, the Developer shall provide a financial guarantee of $196,875.00 based on an amount
equal to 125% of the estimated cost, as set out in Plan D, to furnish and plant the required landscaping and
irrigation system.
30. TREE PRESERVATION AND REPLACEMENT. Subject to approved Plan C, and to the
provisions of Section 1107.2100 of the City Zoning Ordinance, no tree replacement is required for this
Plat.
31. 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")
shall be in the form attached hereto as Exhibit B, from a bank for $1,082,244.00. The amount of the
Security was calculated as follows:
DEVELOPER INSTALLED IMPROVEMENTS COSTS:
Sanitary Sewer
$ 183,265.40
$ 155,295.00
$ 113,543.50
$ 256,191.00
$ 157,500.00
$ 0.00
$ 865,794.90
X 1.25
Page 11
Watermain
Storm Sewer
S treets/S i dew alks/T rails/S i gns
Landscaping
Tree Preservation and Replacement
ESTIMATED DEVELOPER INSTALLED IMPROVEMENTS SUBTOTAL
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TOTAL FOR IRREVOCABLE LETTER OF CREDIT AMOUNT
$
1.082.244.00
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 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. If the Security is drawn
down, the proceeds shall be used to cure the default.
32. CITY DEVELOPMENT FEES. The Developer shall also furnish the City with a cash fee
of$242,789.00 for City Development Fees. The amount of the cash fee was calculated as follows:
CITY DEVELOPMENT FEES:
City Administration Fee (4%) $ 34,508.00
City Construction Observation (5%) $ 43,135.00
Storm Water Management Fee $ 80,376.00
Sanitary Sewer and Watermain Trunk Area Charges $ 59,150.00
City- Wide Collector Street Construction Charge $ 25,350.00
Park and Trail Dedication Fee (ifin lieu ofland) $ 0.00
TOTAL CITY DEVELOPMENT FEES $ 242.519.00
33. 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
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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.
34. 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.
35. 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
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Developer. Oversizing improvements include, but are not limited to, sanitary sewer, water, storn1 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 $3,100.00
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.
36. CLAIMS.
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 Y2 percent (1.5%) per month or any part of
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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. 9471.425, Subd. 4a.)
37. 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.
B. Except as provided in Paragraphs 14 and 15 of 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.
38. 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
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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 constmed 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 of the following actions:
1. The City may suspend its perfoffilance 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, 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.
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C. Election of Remedies. None of the actions set forth in this Section are exclusive or
otherwise limit the City in any manner.
39. NOTICES. Whenever any paragraph in this Development Contract, with the exception of
paragraphs 14 and 15, 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 Default; 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:
Wensco, 1895 Plaza Drive, Suite #200, Eagan, MN 55122. 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, Milmesota
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.
40. 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 fi-om 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.
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Page 17
41. 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 40 shall apply to said actions.
42. INSURANCE REQUIREMENTS. 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
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 a 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 fOlID attached hereto as Exhibit C.
43. RECORDING DEVELOPMENT CONTRACT. This Development Contract shall nm
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
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Page 18
in the property being final platted; and that the Developer indemnifies and holds the City harmless for any
breach of the foregoing covenants.
44. SPECIAL PROVISIONS. The following special prOVIsIons shall apply to Plat
development:
A. Compliance with all of the conditions listed in the Resolution approving the final
Plat.
B. The Developer is required to submit the final Plat In electronic fonnat. The
electronic format shall be compatible with the City's current software.
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.
45. 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 detem1ines that the
Plat does not comply, or receives notice from any county, metropolitan, state or federal agency
(collectively "Agency") that the development 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.
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Page 19
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
Approved as to form
By:
Suesan Lea Pace, City Attorney
By:
Frank Boyles, City Manager
DEVELOPER:
By:
Its:
By:
Its:
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Page 20
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
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 A venue SE
Prior Lake, Minnesota 55372
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Page 21
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 tlus _ day of
20_, by
NOTARY PUBLIC
DRAFTED BY:
City of Prior Lake
16200 Eagle Creek Avenue SE
Prior Lake, Minnesota 55372
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Page 22
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_
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 A venue SE
Prior Lake, Minnesota 55372
1:\02fi1es\02subdivisions\02final plats\fountain2nd\dev cont.doc
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Page 23
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
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6118/02
Page 24
EXHIBIT A
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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 one-year terms unless, at least forty-five (45)
days prior to the next annual renewal date (which shall be November 30 of each year), the Bank delivers written
notice to the 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,
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 herein.
This Letter of Credit is not assignable. This is not a Notation Letter of Credit. More than one draw may be
made under this Letter of Credit.
This Letter of Credit shall be governed by the most recent revision of the Uniform Customs and Practice for
Documentary Credits, International Chamber of Commerce Publication No. 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
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Page 26
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:
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Page 27
Operations of Contractor: YES
Operations of Sub-Contractor (Contingent): YES
Does Personal Injury Include Claims Related to Employment? YES
Completed OperationslProducts: 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 MAlL TIllRTY (30) DAYS WRITTEN NOTICE TO
THE PARTIES TO WHOM TillS CERTIFICATE IS ISSUED.
Dated at
On
BY:
Authorized Insurance Representative
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Page 28
EXHIBIT D
OVERSIZING COSTS
FOUNTAIN HILLS 2ND ADDITION
~. WATERMAIN*
UNIT PRICE UNIT PRICE OVERSIZING
DESCRIPTION UNIT QTY. 12" PIPE 8"PIPE COST CITY COST
12" DIP WATERMAIN LF 620 $ 30.00 $ 25.00 $ 5.00 $ 3,100.00
I
TOTAL OVERSIZING $ 3,100.00
* PER ASSESSMENT POLICY CITY WILL REIMBURSE FOR OVER SIZING IF MAIN IS LARGER THAN 8"
Page 29
EXHIBIT E
ENGINEER'S ESTIMATE
for
Fountain Hills 2nd Addition
Grading, Utility, and Street Construction
Prior Lake, Minnesota
..::::, 0 i..S ~w ~.
. ,r.
. Ii _
. . ,4P~:! {
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. "!I'
II i
I~,
L.
SECTION A - SITE GR<\DING
800 LF Tree Fence (Installed) @ $1.50 I LF = $1.200.00
900 LF Standard Erosion Control Fence (Installed) @ $2.00 I LF = $1.800.00
1960 LF Standard Erosion Control Fence (Installed
after Site Grading) @ $2.00 ILF = $3.920.00
1330 LF Heavy Duty Erosion Control Fence
(Installed) @ $3.00 ILF = $3.990.00
10000 CY Sub grade Correction (Measured) @ $1.50 ICY = $15.000.00
84155 CY Common Excavation @ $1.20 ICY = $100.986.00
12.1 AC Seed and Mulch @ $400.00 lAC = $4.840.00
9500 CY Top Soil Respread @ $0.60 ICY = $5.700.00
1 LS Clear and Grub (Grading & Utilities) @ $8.000.00 ILS = $8.000.00
7000 SY Wood Fiber Blanket @ $2.00 ISY = $14.000.00
6080 SF Retaining Wall @ $20.00 ISF = $121.600.00
3 EA Gravel Construction Entrance @ $500.00 lEA = $1.500.00
SECTION A .. SITE GRADING TOTAL = $282.536.00
SECTION B - SA.l\TITARY SEWER
922 LF 8" PVC SDR 35,0'-12' Depth @ $22.00 I LF = $20.284.00
392 LF 8" PVC SDR 35, 12'-14' Depth @ $24.00 ILF = $9.408.00
312 LF 8" PVC SDR 35. 14'-16' Depth @ $26.00 /LF = $8.112.00
37 LF 8" PVC SDR 35,16'-18' Depth @ $28.00 /LF = $1.036.00
32 LF 8" PVC SDR 35,18'-20' Depth 0.) $30.00 ILF = $960.00
"-'
EXHIBIT E
205 LF 8" pve SDR 26,0'-12' Depth @ $29.00 ILF = $5.945.00
96 LF 8" pve SDR 26, 12'-14' Depth @ $31.00 ILF = $2.976.00
242 LF 8" pve SDR 26, 14'-16' Depth @ $33.00 ILF = $7.986.00
471 LF 8" pve SDR 26, 16'-18' Depth @ $35.00 ILF = $16,485.00
-')') LF 8" pve SDR 26, 18'-20' Depth @ $38.00 ILF = $19.836.00
)~-
80 LF 8" pve SDR 26,20'-22' Depth @ $41.00 ILF = $3.280.00
19 EA 48" Dia Manhole 0'-10' Depth @ $2.300.00 I EA= $43.700.00
81.48 VF Manhole Extra Depth @ $130.00 NF = $10.592.40
64 EA 8" x4" WYE @ $130.00 lEA = $8.320.00
1565 LF 4" pve Service Pipe @ $13.00 ILF = $20.345.00
1 EA Connect to Existing @ $1.500.00 lEA = $1.500.00
1 LS Remove and Restore Trail to Original
Section @ $2.000.00 ILS = $2.000.00
1 LS Sewer Test @ $500.00 ILS = $500.00 ,
SECTION B - SANITARY SEWER TOTAL = $183.265.40
SECTION C - WATERNIAIN
620 LF 12" D.I.P. C1. 52 @ $30.00 ILF = $18.600.00
2255 LF 8" D.I.P. C1. 52 @ $25.00 ILF= $56.375.00
73 LF 6" D.I.P. CL. 52 @ $24.00 /LF= $1.752.00
30 LF 4" DJ.P. CL. 52 @ $20.00 ILF = $600.00
5460 LB D.I.P. Fittings @ $1.80 ILB= $9.828.00
6 EA Fire Hydrant wi Gate Valve @ $2.250,00 lEA = $13.500.00
EA Remove, Salvage, and Reinstall Existing
Temporary Hydrant @. $1.000.00 lEA = $1.000.00
2 EA 12" Gate Valve w/Box @ $1.300.00 lEA = $2.600.00
8 EA 8" Gate Valve w/Box @ $700,00 lEA = $5.600.00
_.....,..._".........,..._."".~ ....._M...",_....~'""..,_ -.....---.-"".-.....
- .. -,. ,_.....,,_...........^-"~~._..--..,.._.,.__... _.. .,-
EXHIBIT E
EA 4" Gate Valve wlEox @ $500.00 lEA = $500.00
64 EA 1" Corporation Stop @ $125.00 lEA = $8.000.00
64 EA 1" Curb Stop (cV, $125,00 lEA = $8.000.00
'-"
1710 LF 1" Copper Type K Service @ $14.00 ILP= $23.940.00
" EA Connect to Existing @ $1.500.00 lEA = $3.000.00
.)
LS Watermain Testing @ $2.000.00 ILS= $2.000.00
SECTION C - W ATERMAIN TOTAL $155.295.00
SECTION D- STORl\1 SEWER
279 LF 12" RCP CL. 5 @ $25.00 I LF = $6.975.00
176 LP 15" RCP C1. 5 @ $27.00 ILP = $4.752.00
169 LF 18" RCP C1. 5 @ $30.00 ILF = $5.070.00
113 LF 21" RCP C1. 4 @ $34.00 /LF = $3.842.00
228 LF 24" RCP C1. 3 @ $38.00 ILF = $8.664.00
631 LF 27" RCP C1. 3 @ $48.00 ILF = $30.288.00
1 EA 24" F.E.S. @ $1.500.00 lEA = $1.500.00
1 EA 24" F.E.S. wi Trash Guard @ $1.800.00 lEA = $1.800.00
3 EA 27" F.E.S. @ $2.000.00 lEA = $6.000.00
1 EA 27" F.E.S. wi Trash Guard @ $1.500.00 lEA = $1.500.00
38.7 CY RlP RA..P Class IV @ $75.00 ICY = $2.902.50
1 EA Control Structures @ $2.500.00 lEA = $2.500.00
2 EA 27" Diameter Catch Basin @ $1.000.00 lEA = $2.000.00
4 EA 24" x 36" Catch Basin ICiJ $1.200,00 lEA = $4.800,00
'-"
6 EA 48" Diameter Manhole @ $1.350.00 lEA = $8.100.00
9 EA 48" Diameter Catch Basin Manhole @ $1.350.00 lEA = $12.150.00
2 EA 60" Diameter Catch Basin Manhole @ $2.500.00 lEA = $5.000,00
210 LF 4" Perforated Drain Tile @ $20.00 I LF = $4.200.00
EXHIBIT E
EA Connect to Existing (a) $1.500.00 lEA: $1.500.00
~
SECTION D - STORlVI SEvVER TOTAL $] 13.543.50
SECTION E - STREETS
9200 SY Sub grade Preparation @ $0.50 /SY: $4.600.00
9200 SY 24" Select Granular @ $5.00 /SY = $46.000.00
5600 SY 9" CL. 5 Aggregate Base (l00% Crushed
limestone) @ $6.00 /SY = $33.600.00
3500 SY 12" CL. 5 Aggregate Base (100% Crushed
limestone) @ $7.50 /SY = $26.250.00
4580 SY 2 ~S" Bituminous Base - 2331 (31B) @ $3.80 ISY: $17.404.00
3040 SY 3" Bituminous Base - 2331 (31B) @ $4.80 ISY = $14.592.00
4580 SY 1 W' Bihlminous Wear - 2341 (41A) @ $3.00 /SY = $13.740.00
3040 SY 2" Bituminous Wear - 2341 (41A) @ $4.00 /SY = $12.160.00
440 GL Tack Coat -2357 @ $1.00 /GL: $440.00
1391 LF B618 Concrete Curb & Gutter @ $9.00 /LF = $12.519.00
718 LF B6l2 Concrete Curb & Gutter @ $lO.OO/LF: $7.180.00 .
2618 LF Mountable Concrete Curb & Gutter @ $8.00 /LF: $20.944.00
7 EA Adjust Gate Valve & Box @ $250.00 lEA = $1. 750.00
14 EA Adjust Catch Basin Casting @ $100.00 lEA = $1.400.00
15 EA Adjust Manhole Casting @ $250.00 IEA= $3.750.00
2 EA Concrete Valley Gutter @ $1.000.00 IEA= $2.000.00
EA Concrete Apron @ $2.000.00 IEA= $2.000.00
4 EA Pedestrian Ramp @ $300.00 IEA= $1.100.00
1050 SY Sub grade Preparation (5' Bit. Path) @ $2.00 /SY = $2.100,00
680 SY Sub grade Preparation (8' Bit. Path) @ $2.00 /SY = $1.360.00
130 Sy Subgrade Preparation (5' Concrete Walk) @ $2.00 /SY = $260.00
1050 SY 6" CL 5 Aggregate Base (100%> Crushed
limeslOne)- 5' Bit. Path @ $4.00 /SY = $4.200.00
~...w.___.~ __"',,.,___.______~__...,_..___,_. ,_ ,_ _< ,.._..,~>...",.~_w."____.~____..__"_.,.~._._"._.._.,._~____._.._"~_~___~..._.".~_."._........_.____._"_,'_.,,~__
EXHIBIT E
680 SY 6" C1. 5 Aggregate Base (100% Crushed
limestone)- 8' Bit. Path @ $4.00 /SY = $2.720.00
130 SY 4" Granular - 3149 (5' Concrete Walk) @ $3.50 /SY = $455.00
1350 LF 5' x :2 ~::" Bituminous Path - 2331 (41A) @ $5.00 /LF = $6.750.00
610 LF 8' x 2 ~S" Bituminous Path - 2331 (41A) @ $6.00 /LF = $3.660.00
190 LF 5' x 4" Concrete Walk @ $17.00 /LF = $3.230.00
LS Install Temporary Cul-de-Sac @ $3.000.00 /LS= $3.000.00
LS Bituminous Removal (Existing Temporary
Cul-de-Sac) @ $ 1.500.00 /L8= $1.500.00
105 LF Removal Existing Curb and Gurter @ $10.00 /LF = $1.050.00
1 LS Backfill Curb & Gutter Restore Blvd
Seed & Mulch Disturbed Areas @ $1.000.00 /LS = $1.000.00
1535 SY Sod (3' Back of Curb) @ $2.20 /SY = $3.377.00
SECTION E - STREETS TOTAL $256.191.00
TOTALS
TOTAL SECTION A
$282.536.00
TOTAL SECTION B
$183.265.40
TOTAL SECTION C
$155.295.00
TOTAL SECTION D
$113.543.50
TOTAL SECTION E
$256.191.00
GRL\.ND TOTAL
$990.830.90
EXHIBIT "F"
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" = 200' and one reduction
at no scale which fits onto an 81/2" x 11" sheet of paper.
4. Four mylar sets of the final plat with all required signatures are submitted.
5. The developer provides financial security, 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 90 days from the
date of final plat approval. Failure to record the documents by September 24, 2002, will render the
final plat null and void.
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CONTRACT FOR DEVELOPMENT OF LAND AS A PLANNED UNIT
DEVELOPMENT IN THE CITY OF PRIOR LAKE, MINNESOTA, TO BE
KNOWN AS FOUNTAIN HILLS 2ND ADDITION
THIS CONTRACT, made and entered into as of the 24th day of June, 2002, by
and between the City of Prior Lake, (hereinafter "CITY") a municipal corporation
organized under the laws of the State of Minnesota and Wensco, (hereinafter
"DEVELOPER") a Minnesota corporation.
RECITALS
WHEREAS, DEVELOPER is duly organized to do business in the State of
Minnesota and owns the PROPERTY within the City of Prior Lake; Scott County,
Minnesota legally described in attached Exhibit A, and
WHEREAS, DEVELOPER desires to develop the PROPERTY legally described
and depicted in Exhibit A ("DEVELOPMENT PROPERTY"); and
WHEREAS, the City has approved a preliminary plat and final plat for the
DEVELOPMENT PROPERTY, which approval is subject to certain conditions including
the Developer enter into the City's standard development contract; and
WHEREAS, DEVELOPER has made application to City Council for approval to
develop the DEVELOPMENT PROPERTY as a Planned Unit Development (Planned
Unit Development); and
WHEREAS, on Aprill, 2002, the DEVELOPER received approval of a
preliminary Planned Unit Development plan and a preliminary PLAT for the
development known as Fountain Hills 2nd Addition; and
WHEREAS, on Aprill9, 2002, the DEVELOPER filed an application for
approval of Final Planned Unit Development; and _
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WHEREAS, the CITY has granted preliminary Planned Unit Development
approval and final Planned Unit Development approval to the DEVELOPER subject to
certain conditions including that the DEVELOPER enter into this CONTRACT and meet
all of the terms and conditions hereafter set forth; and
WHEREAS, under authority granted pursuant to Minnesota Statutes Chapter 462
and the Zoning Ordinance of the City of Prior Lake the CITY COUNCIL has agreed
subject to the terms and conditions set forth herein, to approve the final Planned Unit
Development FINAL PLANS.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions contained herein, the sufficiency of which is not disputed, it is hereby agreed
as follows:
1. RECITALS
The Recitals set forth above are herein incorporated as if fully set forth.
2. PURPOSE OF CONTRACT
2.1 The purpose of this Contract is to set out the terms and conditions pursuant to
which the City Council of the City of Prior Lake grants its approval for the
Developer to develop the Development Property as a Planned Unit Development.
The terms and conditions set forth herein are intended to promote and protect the
orderly development of land within the City and to assure that the development of
the Development Property is done in a manner to protect and preserve the health,
safety and welfare of the citizens and property within the City.
2.2 This CONTRACT is intended to achieve the following objectives:'
a) To insure compliance with the purpose, requirements and criteria set forth
in Section 1106 in the Zoning Ordinance for a Planned Unit Development.
b) To clarify the rights and responsibilities of the parties to this
CONTRACT.
c) To incorporate, as an integral part of this CONTRACT, a Developers
Contract dated June 17,2002 by and between the CITY and
DEVELOPER relating to the Final PLAT of Fountain Hills 2nd Addition.
3. FINDINGS
3.1 The Prior Lake Zoning Ordinance sets out goals and objects against which all
applications for Planned Unit Developments must be evaluated against. The final
Planned Unit Development plan is consistent with the goals and objectives of a
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Planned Unit Development as specified in the Zoning Ordinance. To that effect,
the City Council has made the following findings:
3.1.1 Greater utilization of new technologies in building design, materials.
construction and land development.
The DEVELOPER has designed the buildings so they fit the land, rather
than force the land to fit the building design. The row houses along the
outer ring of the development take advantage of the natural grade.
3.1.2 Higher standards of site and building design.
The density of this site is clustered on the west side of the site to avoid the
wetland and the trees on the east side of the site. The units have also been
placed as far north as possible to preserve the trees on the south boundary
of the site. The utilization of private streets in the townhouse portion of
the development allows the preservation of the wetlands and some of the
slopes and trees on this site.
3.1.3 More efficient and effective use of streets, utilities, and public facilities to
support high quality land use development at a lesser cost.
Maintenance of private streets, including plowing and future repairs, is
done by the homeowners association. This reduces City costs in providing
services to these homes.
3.1.4 Enhanced incorporation of recreational, public and open space
components in the development which may be made more useable and be
more suitably located than would otherwise be provided under
conventional development procedures.
The DEVELOPER provides a trail around the wetland. This trail will
connect to the existing sidewalk Fountain Hills Court and Fountain Hills
Drive.
3.1.5 Provides a flexible approach to development which allows modifications
to the strict application of regulations within the various Use Districts that
are in harmony with the purpose and intent of the CITY's Comprehensive
Plan and Zoning Ordinance.
The density and variety of housing units is consistent with the
Comprehensive Plan goals to provide a variety of housing styles.
3.1.6 Encourages a more creative and efficient use of land.
The PUD allows the higher density areas to be clustered, and preserves
open space.
3.1.7 Preserves and enhances desirable site characteristics including flora and
fauna, scenic views, screening and buffering, and access.
The townhouse units are sited to take advantage of the natural terrain.
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3.1.8 Allows the development to operate in concert with a Redevelopment Plan
in certain areas of the CITY and to insure the redevelopment goals and
objectives within the Redevelopment District will be achieved.
This criteria is not applicable.
3.1.9 Provides for flexibility in design and construction of the development in
cases where large tracts of land are under single ownership or control
and where the users) has the potential to significantly affect adjacent or
nearby properties.
The use of the PUD allows the clustering of the homes and the use of
private streets.
3.1.10 Encourages the DEVELOPER to convey property to the public, over and
above required dedications, by allowing a portion of the density to be
transferred to other parts of the site.
There is no additional parkland dedication in this plat.
3.1.11 The design shall consider the whole of the project and shall create a
unified environment within the boundaries of the project by insuring
architectural compatibility of all structures, efficient vehicular and
pedestrian circulation, aesthetically pleasing landscape and site features,
and efficient use and design of utilities.
The design creates a unified environment. The extension of the existing
streets and provision of trails and sidewalks allows for efficient movement
of traffic. The landscaping plan meets the requirements of the Zoning
Ordinance and also enhances this area.
3.1.12 The design of a Planned Unit Development shall optimize compatibility
between the project and surrounding land uses, both existing and
proposed and shall minimize the potential adverse impacts of the Planned
Unit Development on surrounding land uses and the potential adverse
effects of the surrounding land uses on the Planned Unit Development.
The use of the PUD will allow the clustering of the townhouse units and
provide a transition from the commercial area on the west to the single
family area on the east side of Pike Lake Trail.
3.1.13 If a project for which Planned Unit Development treatment has been
requested involves construction over a period of time in two or more
phases, the applicant shall demonstrate that each phase is capable of
addressing and meeting each of the criteria independent of the other
phases.
The PROJECT will be completed in one phase.
3.1.14 A Planned Unit Development in a Residential Use District shall conform
to the requirements of that Use District unless modified by the following
or other provisions of this Ordinance. 1) The tract of land for which a
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_~. _' "m"<~_"~""'_'_~.~_-"'''_'_~'_''''___ m'_"'_""_'_~__'__"W'_,__"",.,_~,~ .. ,_."_.__._-_._._~,~,.,~""",,,,-,-'---'-,- ...-.-......-~--,-.........
project is proposed shall have not less than 200 feet of frontage on a
public right-of-way; 2) No building shall be nearer than its building
height to any property line when the property abutting the subject
property is in an "R-l" or "R-2" Use District; 3) No building within the
project shall be nearer to another building than ~ the sum of the building
heights of the two buildings, except for parking ramps which may be
directly connected to another building; and 4) Private roadways within
the project site may not be used in calculating required off-street parking
spaces.
The PROJECT meets the above requirements; as approved, the Planned
Unit Development will allow the DEVELOPER to utilize private streets,
which is permitted under the Planned Unit Development provisions at the
discretion of the Council. The plan also reduces the front yard setbacks on
the private streets and the setbacks between the buildings in order to allow
the clustering of the units. The plan also allows the DEVELOPER to
utilize vinyl siding on the buildings with more than four units.
4. DEFINITIONS, RULES OF INTERPRETATION, AND EXHIBITS
4.1 Definitions
In this CONTRACT the following terms shall have the following respective
meanings unless the context hereof clearly requires otherwise:
4.1.1 "APPROVED FINAL PLAN" means all those plans, specifications,
drawings and surveys attributable to the DEVELOPER and the
DEVELOPER INSTALLED PUBLIC IMPROVEMENTS listed in
Exhibit F.
4.1.2 "CITY" means the City of Prior Lake, a governmental subdivision of the
State of Minnesota.
4.1.3 "CITY ATTORNEY" means the City Attorney of the City of Prior Lake.
4.1.4 "CONTRACT" means this Contract for Development of Land as a
Planned Unit Development in the City of Prior Lake, Minnesota, and all
referenced and incorporated exhibits by and between CITY and
DEVELOPER, as the same may be from time to time modified, amended
or supplemented.
4.1.5 "DEVELOPER" means Wensco, or its heirs successors and assigns.
4.1.6 "DEVELOPER INSTALLED IMPROVEMENTS" means all those
improvements listed in Exhibit F.
4.1.7 "DEVELOPMENT CONTRACT FOR PUBLIC IMPROVEMENTS"
means the contract titled Development Contract for Fountain Hills 2nd
Addition and signed by and between the DEVELOPER and the CITY
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required as a condition for the construction of all required public
improvements related to this development.
4.1.8 "DEVELOPMENT PLAN" means the final Planned Unit Development
plans approved by the Council attached as Exhibit B.
4.1.9 "INCLUDING" means including, but not limited to.
4.1.10 "PLAT" means the final plat and all related documents approved by the
CITY.
4.1.11 "PROJECT" means the development of 10.16 acres into 64dwelling units
pursuant to the terms and conditions of the approved final Planned Unit
Development, the approved final PLAT and this CONTRACT.
4.1.12 "PROPERTY" means the real property, together with improvements, if
any, described in Exhibit A.
4.2 Exhibits
The following exhibits are attached hereto, incorporated by reference and made a
part of this CONTRACT as if fully set forth herein.
4.2.1 Exhibit A - Legal Description of Development PROPERTY
4.2.2 Exhibit B - Approved Final Planned Unit Development Plans dated _
4.2.3 Exhibit C - City Council Resolution 02-_ approving the Final Planned
Unit Development Plans and the CONTRACT FOR THE
DEVELOPMENT OF LAND AS A PLANNED UNIT DEVELOPMENT
4.2.4 Exhibit D - Covenants and Homeowner's Association Documents
4.2.5 Exhibit E - DEVELOPMENT CONTRACT FOR PUBLIC
IMPROVEMENTS for the Approved Final PLAT known as Wensmann
1 st Addition.
4.2.6 Exhibit F - DEVELOPER INSTALLED PUBLIC IMPROVEMENTS
5. SCOPE OF PROJECT
5.1 The PROJECT to be known as Fountain Hills 2nd Addition consists of 10.16 acres,
legally described as shown on Exhibit A, to be developed with a total of 64
townhouse units. The PROJECT also includes the development of a private street
system, private open space, parking and landscaping. The PROJECT shall be
developed as shown on the Approved Planned Unit Development Plans, attached
hereto as Exhibit B. These plans include, but are not limited to site plans,
landscaping plans, signage plans, lighting plans and building elevations.
5.2 The PROJECT is to be developed in a single phase, beginning in 2002 and ending
in 2003.
6. DEVELOPER IMPROVEMENTS
~
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6.1 The required DEVELOPER Improvements are described in the attached
DEVELOPMENT CONTRACT FOR PUBLIC IMPROVEMENTS, which is
incorporated as Exhibit E.
6.2 Access. The DEVELOPER hereby grants to the CITY, its agents, employees,
officers, and contractors a non-revocable license to enter the PLAT during the
installation and for the maintenance of DEVELOPER INSTALLED
IMPROVEMENTS to perform all work and inspections deemed appropriate by
the CITY.
7. DEVELOPER REPRESENTATIONS
7.1 DEVELOPER represents and warrants that neither the execution and delivery of
this CONTRACT, the consummation of the transactions contemplated hereby, nor
the fulfillment or the compliance with the terms and conditions of this
CONTRACT is prevented or limited by, or in conflict with or will result in breach
of, the terms, conditions or provisions of any restriction of DEVELOPER, or
evidence of indebtedness, contract or instrument of whatever nature to which
DEVELOPER is now party or by which it is bound or will constitute a default
under any of the foregoing.
7.2 DEVELOPER agrees to hold harmless, indemnify and defend CITY, its Council,
agents, employees and CITY ATTORNEY against any claims or actions brought
as a result of DEVELOPER's performance under this CONTRACT or as a result
of alleged actions or omissions on the part of DEVELOPER, its employees or
agents.
8. RELEASE, HOLD HARMLESS AND INDEMNIFICATION
8.1 DEVELOPER releases from and covenants and agrees that CITY, its City
Council, officers, agents, servants, attorneys and employees thereof (hereinafter
for purposes of this paragraph, the "indemnified parties") shall not be liable for
and agrees to indemnify and hold harmless the indemnified parties against any
loss or damage to PROPERTY or any injury to or death of any person occurring
at or about or resulting from any defect in the PROPERTY, development of
PROPERTY or DEVELOPER IMPROVEMENTS.
9. EVENT OF DEFAULT
9.1 Event of Default Defined. Event of default is anyone or more of the following
events:
9.1.1 Failure by DEVELOPER to timely pay all real property taxes assessed
with respect to the PROPERTY;
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9.1.2 Failure to construct the DEVELOPER's Improvements pursuant to the
terms, conditions and limitations of the DEVELOPMENT CONTRACT
FOR PUBLIC IMPROVEMENTS;
9.1.3 Failure by DEVELOPER to observe or perform any covenant, condition,
obligation or contract on its part to be observed or performed under this
CONTRACT;
9.1.4 Transfer of any interest in the development;
9.1.5 Failure by DEVELOPER to reimburse CITY for any costs increased by
CITY in connection with this CONTRACT, including the enforcement
thereof; including, but not limited to engineering fees, inspection and
testing fees, attorney fees and other professional fees.
9.2 Remedy Upon Event of Default. Whenever an event of default occurs, the
CITY after providing DEVELOPER notice as provided in paragraph 15, and may
take anyone or more of the following actions:
9.2.1 CITY may cancel and rescind this CONTRACT.
9.2.2 CITY may draw upon and/or bring an action upon any or all of the
securities including but not limited to the Irrevocable Letter of Credit, the
Payment Bond, the Performance Bond or the Warranty Bond provided to
CITY pursuant to the Development Contract for the PLAT ofWensmann
1st Addition (Exhibit G).
9.2.3 CITY may take whatever action, including legal or administrative action,
which may be necessary or desirable to CITY to collect any payments due
under this CONTRACT or to enforce performance and/or observance of
any obligation, contract or covenant of DEVELOPER under this
CONTRACT.
9.2.4 CITY may suspend issuance of Building Permits and/or Occupancy
Permits on DEVELOPER's lots.
9.2.5 CITY may draw upon the Irrevocable Letter of Credit provided pursuant
to the Development Contract for the PLAT of Wensmann 1 st Addition if
CITY receives Notice that the bank elects not to renew the Irrevocable
Letter of Credit.
9.3 Whenever an Event of Default occurs and CITY shall employ attorneys or incur
other expenses, including employment of experts, for the collection of payments
due or to become due or for the enforcement or performance or observance of any
obligation or contract on the part of DEVELOPER herein contained,
DEVELOPER agrees that it shall, on demand thereof, pay to CITY the reasonable
fees of such attorneys and such other expenses so incurred by CITY.
9.4 Nonexclusive Remedy. None ofthe actions set forth in this Section are exclusive
or otherwise limit the CITY in any manner.
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10. WAIVER
Failure of the CITY at any time to require performance of any provision of this
CONTRACT shall not affect its right to require full performance thereof at any
time thereafter and the waiver by the CITY of a breach of any such provision shall
not be taken or held to be a waiver of any subsequent breach thereof or as
nullifying the effectiveness of such provision.
11. ASSIGNMENT
11.1 DEVELOPER represents and agrees for itself, its heirs, its successors and assigns
that DEVELOPER has not made or created and that it will not make or create or
suffer to be made or created any total or partial sale, assignment, conveyance or
any trust or power to transfer in any other mode or form of or with respect to this
CONTRACT or in DEVELOPER without the prior written approval of the CITY.
11.2 The DEVELOPER may not transfer or assign this CONTRACT without the prior
written permission of the CITY COUNCIL ofthe City of Prior Lake. The
DEVELOPER's obligations hereunder shall continue in full force and effect, even
if the DEVELOPER sells one or more lots, the entire PLAT, or any part thereof.
12. PERMITS
12.1 The DEVELOPER shall obtain all necessary approvals, permits and licenses from
the CITY, and any other regulatory agencies and the utility companies. If any of
the entities request a change to the APPROVED FINAL PLANS submitted for
review, the DEVELOPER shall submit these changes to the CITY for approval.
12.2 All costs incurred to obtain said approvals, permits and licenses, and also all fines
or penalties levied by any agency due to the failure of the DEVELOPER to obtain
or comply with conditions of such approvals, permits and licenses, shall be paid
by the DEVELOPER.
12.3 The DEVELOPER's shall defend and hold the CITY harmless from any action
initiated by the other regulatory agencies and the utility companies resulting from
such failures of the DEVELOPER.
13. RECORDING
13.1 This CONTRACT shall be recorded by DEVELOPER within sixty (60) days from
approval of the Resolution approving the Final Planned Unit Development and
Final PLAT, and all terms and conditions of this CONTRACT shall run with the
land herein described, and shall be binding upon the heirs, successors,
administrators and assigns of the DEVELOPER. The DEVELOPER shall provide
and execute any and all documents necessary to implement the recording. If there
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Page 9
be more than one developer, references herein to DEVELOPER shall mean each
and all of them.
13.2 All recording fees, if any, shall be paid by the DEVELOPER.
14. NOTICE
14.1 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: Wensco, 1895 Plaza
Drive, Suite 200, Eagan, Minnesota, 55122.
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.
14.2 The Notice period shall be fifteen (15) calendar days.
14.3 The Notice shall state a time by which the default must be cured. The time the
CITY gives the DEVELOPER shall be determined in the sole discretion of the
CITY; however, such time shall be a reasonable time.
15. MODIFICATIONS OR AMENDMENT
This CONTRACT may be amended by the parties hereto only by written
instrument executed in accordance with the same procedures and formality
followed for the execution of this CONTRACT.
16. PROOF OF TITLE
DEVELOPER shall furnish a title opinion or title insurance commitment
addressed to the CITY demonstrating that DEVELOPER is the fee owner or has a
legal right to become fee owner of the PROPERTY upon exercise of certain rights
and to enter upon the same for the purpose of developing the PROPERTY.
DEVELOPER agrees that in the event DEVELOPER's ownership in the
PROPERTY should change in any fashion, except for the normal process of
selling or conveying lots, prior to the completion of the PROJECT and the
fulfillment of the requirements of this CONTRACT, DEVELOPER shall
forthwith notify the CITY of such change in ownership and seek the CITY's
approval to transfer the responsibility under this CONTRACT. Any change in
ownership shall not release DEVELOPER from any of its obligations under this
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.
Page 10
CONTRACT, unless or until the CITY has approved transfer of this CONTRACT
and then only to the extent agreed to by the CITY.
17. HEADINGS
Headings at the beginning of paragraphs herein are for convenience of reference,
shall not be considered a part of the text of this CONTRACT and shall not
influence its construction.
18. SEVERABILITY
In the event any provisions of this CONTRACT shall be held invalid, illegal, or
unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof, and the remaining
provisions shall not in any way be affected or impaired thereby.
19. CONSTRUCTION
This CONTRACT shall be construed in accordance with the laws of the State of
Minnesota.
IN WITNESS WHEREOF, CITY and DEVELOPER have caused this
CONTRACT to be duly executed on the day and year first above written.
Approved by the City Council on the 17th day of June, 2002.
APPROVED AS TO FORM:
DEVELOPER: Wens co
by
Suesan Lea Pace, City Attorney
By
Its
CITY OF PRIOR LAKE
By:
Its Manager
By:
Its Mayor
This Development Contract must be signed by all parties having an interest in the
PROPERTY.
1:\02files\02puds\fountain hills 2nd final\pud contract.doc
Page 11
STATE OF MINNESOTA
COUNTY OF SCOTT
On the day of ,20_, before me, a Notary Public, with and for
said County personally appeared Jack G. Haugen and Frank Boyles, to me personally
known, being each by me duly sworn did say that they are the Mayor and City Manager,
respectively, of the City of Prior Lake, a Minnesota municipal corporation, named in the
foregoing instrument; and that said instrument was signed on behalf of the municipal
corporation and acknowledged said instrument to be the free act and deed of said
municipal corporation.
Notary Public
STATE OF MINNESOTA
COUNTY OF SCOTT
The foregoing instrument was acknowledged before me this
,20_ by and by
and of
Corporation, on behalf of said corporation.
day of
who are the
, a Minnesota
Notary Public
This instrument prepared by:
City of Prior Lake
16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372
1:\02files\02puds\fountain hills 2nd final\pud contract.doc
Page 12
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 Contract for Development of Land as a
Planned Unit Development in the City of Prior Lake, 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 SCOTT )
The foregoing instrument was acknowledged before me this _ day of
,20_, by
NOTARY PUBLIC
1:\02files\02puds\fountain hills 2nd final\pud contract.doc
Page 13
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