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HomeMy WebLinkAbout9B Pebble Creek Shores Plat ReportPhone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com 4646 Dakota Street SE Prior Lake, MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: FEBRUARY 27, 2017 AGENDA #: 9B PREPARED BY: JEFF MATZKE, PLANNER PRESENTED BY: JEFF MATZKE AGENDA ITEM: CONSIDER APPROVAL OF THE PEBBLE CREEK SHORES COMBINED PRELIMINARY AND FINAL PLAT AND DEVELOPMENT AGREEMENT DISCUSSION: Introduction Pebble Creek Custom Homes LLC, on behalf of the property owner, has applied for approval of a Combined Preliminary and Final Plat to be known as Pebble Creek Shores to be developed as a 2 lot, low density residential subdivision. The subject property is located on the southern shores of Prior Lake, north of County Highway 12 and west of Terrace Circle. History The site is currently vacant. In 1857 the Spring Lake Townsite Plat was created which provided access to the site via 7th Street. A paved 7th Street surface has never been constructed in the area of the property yet the public right-of-way remains adjacent to the western boundary of the site. The Planning Commission held a public hearing on this plat application at their February 21, 2017 meeting. At the meeting the Planning Commission recommended a conditional approval of the plat on a 4-0 vote to the City Council. Current Circumstances The current proposal calls for a 2 lot single family subdivision of the site (with potential for a possible 3rd lot in the future on the adjacent property). The following paragraphs outline the physical characteristics of the existing site, the Comprehensive Plan and zoning designations, and a description of some of the specifics of the site. PHYSICAL SITE CHARACTERISTICS: Total Site Area: The total development site area consists of 1.09 acres. Topography: This area has relatively level topography, with elevations ranging from the 904’ MSL along Prior Lake to 930’ MSL at Center Road. Wetlands: No wetlands exist on the proposed site. Access: Access to the site is currently from a gravel/dirt path on the platted 7th Street right-of-way (no formal roadway surface exists). 2030 Comprehensive Plan Designation: This property is designated for Low Density Residential uses on the 2030 Comprehensive Plan Land Use Map. Zoning: The site is presently zoned R-1 Low Density Residential. PROPOSED PLAN Lots: The plan calls for 2 lots to be constructed of single family housing styles. The lot sizes range in size from approximately 16,700 square feet to 19,300 square feet. All lots meet the minimum dimensional requirements. Setbacks: The typical residential required setbacks of 25-foot front, 10-foot side yards, and 75 feet from the ordinary high water elevation (OHW) of Prior Lake are proposed. Parks / Trails: No park or trails are proposed. Parkland dedication will be satisfied through a cash-in-lieu payment to the City Park Fund with Final Plat approval. Fees and Assessments: This development will be subject to the standard development fees including park dedication, and trunk street and utility service charges. Access/Street: The designed access for the 2 lots is via a shared driveway within the right-of-way area of 7th Street. The City Staff believes this is a practical approach to the access as a public cul-de-sac would be the typical design; however, it would involve a larger grading impact (tree removal, terrain), increased changes to the neighborhood, and increased public maintenance of an additional city street section. The City Attorney has prepared a memorandum (attached) of which the City Council will need to consider related to the use of the 7th Street right-of-way and the City’s future obligations. The City Staff envisions a written agreement between the City and the developer that would ensure a home owners association (HOA) be arranged to maintain the shared driveway, lift station, and storm water feature. Sanitary Sewer / Water Mains: Sanitary sewer and water mains were installed in the Center Road right-of-way in the 1970s. Individual lateral water connections will be made for both lots along Center Road. A sanitary sewer line is proposed under the main shared driveway to a centralized manhole at which the individual lateral sewer connections would be made. The main line would be maintained by the city public works while the shared lift station would be maintain by the property owners through a Home Owners Association (HOA) agreement. Grading / Storm water: The City Staff have some primary comments related to storm water on the project. The City has meet and discussed these comments with the developer and they are currently revising the grading and storm water plans accordingly. Conclusion The City Council should deliberate on the issue of a private driveway within the public right-of-way as outlined by the City Attorney in the attached memorandum. The plat is also contingent of a vacation of right-of-way for 30 feet (half of 7th Street) near the lakeshore. If the City Council is in favor of the plat with the driveway arrangement as requested and approves the plat, then a separate agreement between the City and the developer/property owners would be drafted to ensure a home owners association (HOA) be arranged to maintain the shared driveway, lift station, and storm water feature. This agreement would be brought to the City Council at a future date for review/approval. ISSUES: The Developer and City Staff have discussed issues related to the design of the plat including the private features (driveway, lift station, and storm water feature) as well as storm water regulations. As noted in the attached staff memorandum from the Engineering/Public Works Department, the developer must refine the plans to assure compliance with the Public Work Design Manual requirements and City Zoning Ordinance. As of the drafting of this report, a number of storm plan/plat comments remain to be addressed in the Engineering/Public Works Memorandum. City Staff would recommend the majority of these comments be addressed (particularly the storm water and utility comments) prior to approval of the plat by the City Council. Therefore, City Staff would recommend tabling any approval of this plat at this time. The plat is also contingent of a vacation of right-of-way for 30 feet (half of 7th Street) near the lakeshore. The right-of-way vacation request will be brought to the City Council at a future date as a public hearing item (Any approval of the plat is conditioned upon approval of the future right-of-way vacation of the easterly 30 feet of 7th Street near the lakeshore.) However, in this case, the main issue is the decision to place a private driveway in the area of the 7th Street right-of-way which must be decided by the City Council. The developer is looking for direction from the City Council as to their support of the private driveway in the public right-of-way. In the event that the City Council tables the item approval, it would be beneficial for the Developer and City Staff to understand the City Council’s direction on the private driveway issue at this time and whether the unique plat design is feasible to move forward with final design changes. ALTERNATIVES: 1.Motion and a second to approve of the Combined Preliminary Plat and Final for Pebble Creek Shores subject to the comments listed in the February 16, 2017 Engineering/Public Works memorandum, or others that may be added or modified by the Council. 2.Motion and a second to recommend denial of the Combined Preliminary Plat Final Plat request based upon findings of fact. 3.Motion and a second to table this item to a future City Council meeting and provide the applicant with direction on the issues that have been discussed. RECOMMENDED MOTION: Alternative #3 ATTACHMENTS: 1.Location Map 2.Resolution 17-XXX 3.Development Plans dated January 25, 2017 4.Engineering/Public Works Dept. Memorandum dated January 25, 2017 5.Community and Economic Development Dept. Memorandum dated February 15, 2017 6.City Attorney Memorandum dated February 16, 2017 1 4646 Dakota Street SE Prior Lake, MN 55372 RESOLUTION 17-___ A RESOLUTION APPROVING THE PEBBLE CREEK SHORES COMBINED PRELIMINARY AND FINAL PLAT AND THE DEVELOPMENT AGREEMENT Motion By: Second By: WHEREAS, The Prior Lake Planning Commission conducted a public hearing on February 21, 2017 to consider a request from Pebble Creek Homes LLC (the “Developer”) to recommend approval of a Combined Preliminary and Final Plat for Pebble Creek Shores for the following property: Lots 8, 9, 10 and 11, Block 24, Spring Lake Townsite, Scott County, Minnesota. PID: 25-133-011-1 WHEREAS, Notice of the public hearing on said Combined Preliminary and Final Plat was duly published and mailed in accordance with the applicable Prior Lake Ordinances; and WHEREAS, The Planning Commission heard all persons interested in the Combined Preliminary and Final Plat at the public hearing, and the Commission recommended the plat for Pebble Creek Shores to the City Council on a 4-0 vote subject to certain conditions; and WHEREAS, The City Council finds that the proposed Combined Preliminary and Final Plat for Pebble Creek Shores meets the requirements of Subsections 1002.400, 1103.200 and 1103.300 of the Prior Lake Subdivision Code. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1.The recitals set forth above are incorporated herein. 2.The City Council approves the Combined Preliminary and Final Plat for Maple Park Shore Acres Second Addition subject to the following conditions: a)The Developer shall obtain the required permits from all state or local agencies prior to any work on the site. b)The Developer shall revise the plans in accordance with the requirements contained in the memorandum from the Engineering/Public Works Departments dated February 16, 2017. c)The Developer shall revise the plans in accordance with the requirements contained in the memorandum from the Community and Economic Development Department dated February 15, 2017. d)The plat approval is contingent upon approval of a vacation of the easterly 30 feet of the 7th Street right-of-way near the shores of Prior Lake. 2 e) The plat is contingent upon approval of a separate agreement between the City and the property owners related to the shared access, storm water, and utility improvements. 3. The Developer shall record the Final Plat and Development Agreement within ninety (90) days after approval of this combined plat. PASSED AND ADOPTED THIS 27th DAY OF FEBRUARY, 2017 VOTE Briggs McGuire Thompson Braid Burkart Aye ☐ ☐ ☐ ☐ ☐ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ ___________________________ Frank Boyles, City Manager CENTER R D S W T E R R A C E C I R S W Upper Prior Lake Scott County GIS Ü Pebble Creek Shores Com bined Preliminary and Final Plat Location Map UPPER PRIOR LAKEGD (904) SPRING LAKEGD (912.8) BLINDLAKE RD(948.7) CRYSTAL LAKENE (943.3) RICE LAKENE (945) CAMPBELLLAKE NE(Not Estab.) Spring Lake Upper Prior Lake Scott County GIS SUBJECTPROPERTY SUBJECTPROPERTY MEMORANDUM To: Jeff Matzke From: Sarah Schwarzhoff Date: February 16, 2017 Re: Private use of Public ROW In 1857 the area between Spring Lake and Upper Prior Lake was platted as the Spring Lake Townsite. Now, a developer has applied for a preliminary and final plat to re-plat a portion of the Townsite into two new lots. The access to the newly platted lots would be provided by 7th Street, a 60 foot wide piece of land running from Center Road SW to Upper Prior Lake (“Road”). There is also an abutting portion of the Townsite plat which, if subdivided as a separate lot, would use the Road for access as well. The Road was platted with the original Townsite but has not been constructed, used or maintained as a street. The area is currently undeveloped and heavily wooded. Without construction of the road there is no physical access to the three potential lots. When a street is platted it is deemed to be held in trust by the City for the public. Minn. Stat. 505.01. The City can determine when or if to open the road for use. Vill. of Medford v. Wilson, 230 N.W.2d 458, 459 (1975). However, a person purchasing a lot within a plat “is entitled to the benefit of the plat as it appears when he purchases it. If there are public streets, they inure to his benefit”. Gilbert v. Emerson, 61 N.W. 820, 822 (1895). Generally, where someone wants to gain access through an unbuilt, unopened but platted road, the City would require the developer to construct the road to City standards. The City would take possession of and responsibility for the street including future maintenance. This process is fairly expensive for the developer as they are required to construct a high quality street. It also imposes on the City future maintenance and improvement obligations which can become expensive. In this case, the developer has informed City staff that if he is required to construct the street to City standards he will not proceed with the project due to the costs. The developer has suggested that instead he be allowed to construct a private drive on the Road right of way. The City can allow the developer to install the street to lower standards. However, this will cost the City more long term because maintenance and improvement is more expensive for a substandard street. In addition, having a substandard street can lead to liability issues because injuries or damage may be more likely to occur on a substandard street. Due to the City’s long term maintenance and improvement expense and the possibly increased liability I do not recommend allowing the developer to construct a street that the City has to maintain to anything but City standards. Alternatively, the City could attempt to allow the developer to construct some type of private drive on the Road right of way to something less than City standards. The City would enter into an agreement with the developer which would state that the City is not opening the Road or exercising jurisdiction over it and that the City maintains its right to open the Road at some point in the future. The agreement would also outline the obligations of the developer and future property owners with regards to the maintenance and liability for the private drive. However, it is not clear that the City has the authority to allow someone to establish a private easement over public right of way. Although courts have indicated that lot owners have the right to use platted streets, it is not clear if this includes to all platted streets or only opened streets. It is also not clear if the right to use a street extends to improving it. The City of Duluth did something similar, allowing a property owner to construct a private access on a platted road. The court approved the private use of the public right of way but did so based on the City of Duluth Charter which authorized the City to issue a permit for construction of private improvements on a platted street. Bolen v. Glass, 755 N.W.2d 1 (2008). The City of Prior Lake is a statutory city and does not have similar authority to issue a permit for private construction on a platted street. The City would need to rely on its general position as the road authority. A court might or might not uphold the City’s authority to allow private use of a public right of way. Or a court might find that by allowing private use the City exercised jurisdiction and opened the Road. Either way, if the City is deemed not to have authority or if the Road is deemed to have been opened, the City may be forced to take over a substandard private drive as a City street which would result in additional maintenance and improvement costs and potentially additional liability. Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com Memo Date: February 16, 2017 To: Community Development Department From: Engineering Department – Nick Monserud, Project Engineer Public Works Department – Pete Young, Water Resources Engineer Subject: Pebble Creek Shores Site Plan and Preliminary/Final Plat Review – City Project # DEV17-000001 The Engineering Department and Public Works Department have reviewed the preliminary/final plat for the subject project with a plan date of January 25, 2017. The plans were reviewed for consistency with City Ordinance and Standards detailed in the City of Prior Lake Public Works Design Manual. The following list details deviations from standards or requests for additional information that must be reconciled prior to project approval. The applicant or its representatives are invited to contact the engineering department with any questions or clarifications at 952-447- 9830. Comments highlighted in bold text are of particular concern: General 1. The concept of a private driveway over public right of way is not standard. Normally, a public roadway is built to serve multiple properties. The City Attorney should detail the risks to allowing a private drive over a public roadway. The City Council must then weigh the risks against the maintenance of a public roadway here. Considering the future subdivision of the adjacent property is not a part of this plat adds risk to the situation. It is encouraged that if the City Council proceeds with a private drive over public right of way, that the neighboring property be included and that the Development Contract provide clear language that the lift station and private drive will be maintained by the property owners. 2. Provide digital copy of all the construction drawings in PDF or TIF format prior to construction. 3. Preconstruction meeting will be required prior to commencement of construction. 4. After construction, an as-built record plan shall be submitted. The as-built plan shall follow the requirements of Section 10 of the Public Works Design Manual prior to issuance of the certificate of occupancy. 5. A Letter of Credit will be required for grading and erosion control, utility connection restoration, and right of way restoration. 6. The Developer must obtain all regulatory agency permits and approvals prior to construction, including but not limited to those from the Minnesota Pollution Control Agency for “General Storm Water Permit for Construction Activity”, DNR, Minnesota Pollution Control Agency, Metropolitan Council, Minnesota Department of Health or any other permitting authority. 7. A Right-of-way permit from the City will be required for any work with in the right-of- way. 8. City Project number is DEV17-000001. Please add this project number to the plans. 9. Benchmarks shall be placed on all sheets. (Top nut of existing hydrant is a preferable benchmark). 10. Civil plan sheets drainage and utility easements do not match Final Plat drainage and utility easement. Please revise accordingly. 11. Provide note on plans stating that working hours are from 7:00 A.M. – 7:00 P.M., Monday through Friday and 8:00 A.M. – 5:00 P.M., Saturday. 12. The driveway on Lot 1 encroaches into public right-of-way. Also, the maximum driveway width allowed at the property line is 24 feet. Please revise accordingly. 13. The house on Lot 1 needs to be within the setbacks. Please revise accordingly. 14. The connection to Center St. shall be in accordance with standard plate #606 Residential Concrete Entrances Grading 1. Maximum 4:1 slopes are allowed in “maintained” areas except approved by the City Engineer. Maximum 3:1 slopes are allowed adjacent natural resources. Please revise contours to show proper slopes and note 5 on sheet C3. 2. Revise Grading along SE side of Lot 2 to slope away from the structure. 3. Grading along the SW side of Lot 2 and part of the right-of-way should be a maximum of 4:1. 4. Please smooth out the 910 contour on the lake side of Lot 2. 5. The emergency overflow from the stormwater BMP shall not direct drainage to the neighbor’s property. Please swale contours towards the lake. Storm Sewer 1. Storm sewer pipe within right-of-way must be RCP, greater than 15” ID, and conform to pipe class listed in Exhibit M of the Public Works Design Manual. 2. Considering the vacation of right of way, the storm sewer pipe must be placed within a drainage and utility easement. 3. The last three pipe joints from the flared end section shall be tied together. 4. Riprap at the flared end section shall at a minimum be placed to the current water line of the lake. Maintenance of this outlet/riprap will need to be included with the maintenance agreement. Sanitary Sewer 1. One lift station should be provided for all three properties as discussed originally. The entire house can drain to the lift station. This would be a private lift station and must have a stub to the ghost platted lot. Please provide design plans for the lift station. 2. Televising of the sanitary sewer is required after testing. A copy of the televising report and recordings must be submitted to the Public Works Department. 3. The sewer and water service shall be included in the pressure and leakage testing requirements for the main lines. 4. All sanitary sewer outside of roadway areas must have marking signs placed at the front and back of the property lines. Signs shall be green “Rhino Marking Posts” or approved equal and should be shown on the plans. 5. Show the existing and proposed sanitary sewer in plan and profile view, along with other existing and proposed utilities in the construction zone. 6. Maintain a minimum of 10’ of horizontal separation between sanitary sewer and watermain. 7. Deflection testing for all non-rigid pipes shall be conducted after the final backfill has been in place for 30 days. 8. The maximum depth of the sanitary sewer service at the ROW line shall be 10’ unless documented by a proposed house or building elevation that justifies a deeper service. 9. Show sewer service elevations at the houses. 10. Sewer service for the ghost plat shall be installed with the development. Watermain 1. Water service for the ghost plat shall be installed with the development. 2. The City requires 48 hours notice for any watermain shutoff. 3. Re-arrange water services to minimize crossings. 4. Hydrant – please include standard plate #500. 5. All watermain gate valves and curb stops shall have adjustable gate valve extension stems. 6. Activation of the watermain system shall be performed by City personnel only. Hydrology 1. Submittal does not meet city rate control requirements. A second stormwater management BMP is needed to meet these requirements. The proposed basin could be modified and directed into a second basin closer to the lake and within the right- of-way area. Second basin should be located so that it may be expanded to accommodate a future third lot. 2. HydroCAD model comments: a. Update the existing and proposed drainage areas to include portions of the lots to the south of the project area. b. Include the actual existing/proposed site characteristics instead of assuming general land covers. c. Provide a detail for CBMH 3 showing critical elevations to explain the device routing for the outlet of the filtration basin. SWPPP 1. The project is located in a shoreland zone and will result in land disturbance of more than 10,000 square feet. A SWPPP that meets the requirements of the NPDES Construction Stormwater Permit must be reviewed and approved before a grading permit will be issued for the site. Full SWPPP review will occur after updated plans are submitted. Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com Memo The Community & Economic Development Department has reviewed the Combined Preliminary & Final Plat for the subject project with a plan date of 1/25/2017 and we have the following comments: General 1. Development fees – The following development fees are to be collected prior to recording of any approved final plat: Park Dedication of 1 unit(s) at $3,750 per unit, Trunk Water ($6,960/net acre), Trunk Sanitary Sewer ($3,678/net acre), Trunk Storm Sewer ($3,376/net acre), Street Oversize ($5,953/net acre), $9,000 Water Connection Fee, $9,000 Sewer Connection Fee, and a 4% administrative fee and 5% construction observation fee based on the total estimated construction costs (which include grading, landscaping, and public utility connections – see comment #2). 2. Provide engineering estimate for total estimated construction cost including categories based on sanitary sewer, water main, storm sewer, small utilities, streets/sidewalks/trails, street signs, traffic control signs, landscaping/irrigation, grading, and erosion control. 3. Provide title report/commitment for property indicating all applicable property owners/mortgages. 4. Plat approval is pending vacation of 30 feet of public right-of-way. 5. Plat approval as presented will required City Council approval of private driveway/utility/stormwater agreement across public right-of-way. Plat/Site Plan 6. House/deck plan for Lot 1 extends into minimum 75-foot lake setback. Revise accordingly. 7. Remove large rear yard drainage and utility easement area, only typical 10-foot easement is needed at back of lots. 8. Include note indicating “Impervious Surface coverage maximum allowed is 30% of total lot area above 904 OHW elevation for each lot.” per Section 1104.306 of City Ordinance. 9. Remove hammerhead driveway from right-of-way. Driveway setback is 5 feet from side property lines per Section 1107.205 of City Ordinance. Date: February 15, 2017 To: Derek Walgrave, Pebble Creek Homes From: Jeff Matzke, Planner Subject: Pebble Creek Shores Combined Preliminary & Final Plat City Project #DEV2017-000001 Page 1 DEVELOPMENT AGREEMENT PEBBLE CREEK SHORES PROJECT #17-000001 This Development Agreement (“Agreement”) is entered into this 27th day of February, 2017, by and between the City of Prior Lake, a Minnesota municipal corporation ("City"), and Pebble Creek Custom Homes LLC, a Minnesota limited liability company (“Developer”). WHEREAS, Developer is the owner of property located within the City of Prior Lake, County of Scott, legally described on Exhibit A (“Property”); WHEREAS, Developer has applied to the City for Final Plat approval for the construction of 2 residential units on the Property; NOW, THEREFORE, in consideration of the City adopting Resolution No. ____________ (“Resolution”) for Final Plat approval for the construction of 2 residential units and the related public improvements on the Property, Developer agrees to construct, develop and maintain the Property as follows: 1. RIGHT TO PROCEED. The City shall not issue a grading or building permit and Developer shall not grade or otherwise disturb the earth, remove trees, develop, construct upon or maintain the Property in any manner, or begin the Development Work until all of the following conditions have Page 2 been satisfied: 1) the final Plat and this Agreement have been fully executed by all parties and recorded in the office of the Scott County Recorder or Registrar or Titles as applicable; 2) the necessary Security, 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. 2. PHASED DEVELOPMENT. This Agreement represents approval only of the units identified above and the related improvements set forth on the final Plat and Plans. It does not represent approval of any additional development including any proposed future phases. If the final Plat is a phase of a multi-phased preliminary Plat, the Developer shall submit, in accordance with City Code, 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. If the final Plat is a phase of a multi-phased preliminary Plat, the City may refuse to approve final plats of subsequent phases or other Plats within the City if the Developer has breached this Agreement or any terms or conditions set out in the Resolution and the breach has not been remedied. In addition, no other subsequent phases may proceed until the City approves development agreements 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 final 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. 3. DEVELOPMENT PLANS. A. The Property shall be developed in accordance with the final plans identified below, subject to such changes and modifications as provided herein (“Plans”). The Plans shall not be attached to this Agreement, but are incorporated by reference and made a part of this Agreement as if fully set forth herein. If the Plans vary from the written terms of this Agreement, the more specific or stringent controls shall apply. The Plans are: Page 3 Plan A -- Final Plat as stamped approved by the City Planner or his/her designee (Prepared by Bohlen Surveying) subject to the changes and modifications set forth in the Resolution. Plan B -- Final Grading, and Erosion Control Plan(s) including Storm Water Pollution Prevention Plan (“SWPPP”) as stamped approved by the City Engineer or his/her designee (Prepared by Civil Site Group) Plan C -- Plans and Specifications for Developer Installed Improvements as stamped approved by the City Engineer or his/her designee (Prepared by Civil Site Group) Plan D -- Tree Preservation/Landscape Plan as stamped approved by the City Public Works and Natural Resources Director or his/her designee (Prepared by Civil Site Group) B. In addition, Developer shall grade, construct upon, and improve the Property pursuant to all requirements of this Agreement, the Resolution, the Prior Lake City Code, the City's Public Works Design Manual (“PWDM”), the City Manager of his/her designee. All improvements and other work required by the Plans, the Developer Installed Improvements, and such other work as is required by this Agreement, the Resolution or the parties identified above are hereafter referred to as the "Development Work." Developer shall be responsible for all costs related to the Development Work. 4. DEVELOPER INSTALLED IMPROVEMENTS. A. The Developer shall install and pay for the following public improvements which shall be dedicated or conveyed to the public, and which are hereafter referred to as the “Developer Installed Improvements”: Sanitary Sewer System, Water System, Storm Sewer, Streets, Concrete Curb and Gutter, Street Lights, Site Grading and Ponding, Underground Utilities, Traffic Control Signs, Street Signs, Setting of Iron Monuments, Sidewalks, Trails, and Boardwalks, Landscaping and Wetland Buffer Signage. B. Developer shall complete all Developer Installed Improvements and obtain the City’s written acceptance of the Developer Installed Improvements no later than December 31, 2017, with the exception of the final wear course of asphalt on streets. The final wear course on streets shall be installed by July 30th, of the first summer after the base layer of asphalt has been in place for one freeze-thaw cycle. Page 4 C. As a condition of the City’s acceptance of the Developer Installed Improvements, the Developer’s engineer shall by written letter certify to the City that the Developer’s engineer made reasonable inspections of the Developer Installed Improvements and that the Developer Installed Improvements were built in accordance with this Agreement. D. Prior to acceptance of the Developer Installed Improvements by the City, Developer shall post maintenance bonds, in a form acceptable to the City, naming the City as obligee, which secure all warranties identified in this Agreement. These maintenance bonds shall be in addition to, and not in lieu of, the Security required by this Agreement. E. Upon the City’s written acceptance, by City Council Resolution, of the Developer Installed Improvements, the Developer Installed Improvements shall automatically become property of the City without further notice or action. The Developer shall be responsible for all maintenance until written acceptance by the City of the Developer Installed Improvements. F. Under no circumstances shall Developer charge or assess, directly or indirectly, any fee, charge, assessment or consideration, to any party, for connection or access to, or service by, any Developer Installed Improvement. 5. 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 Plans. 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. 6. FINAL PLAT AND AS-BUILTS. A. Within 30 days after the completion of the Developer Installed Improvements Developer shall supply the City a complete set of reproducible “as constructed” plans, and four complete sets of blue line “as constructed” plans, all prepared in accordance with City standards. In addition, Developer shall Page 5 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 Security shall not be released until the as-builts have been received by the City. The as-built plan shall include field verified elevations of the following: a) cross sections of ponds, b) location and elevations along all swales and ditches, and c) lot corners and house pads. The Developer shall also submit a land tabulation certified by a registered engineer showing that all pads have been corrected in accordance with project specifications. B. The Developer shall to submit the final Plat in electronic format. The electronic format shall be compatible with the City's current software. In addition, upon completion of the project the Developer shall provide the City with as-built utility plans in electronic format compatible with the City’s current software and with layers, colors, and line-types formatted in accordance with City standards. Additionally, three (3) full size (22 X 34 inch) paper copies and one (1) reduced (11 X 17 inch) copy shall be certified and submitted to the City. 7. MONUMENTS. Before the Security is released, Developer shall install iron monuments in accordance with Minn. Stat. §505.021. The Developer's surveyor shall submit a written notice to the City certifying that the monuments have been installed. 8. WARRANTY. Developer warrants all Developer Installed Improvements against any defects, poor material and faulty workmanship for a period of two years after its completion by Developer and acceptance by the City. Any replacement work shall be so warranted for two years after its completion by Developer and acceptance by the City. All landscaping including but not limited to, trees, bushes, shrubs, grass and sod, shall be warranted to be alive, of good quality and disease free for 12 months after planting. Any replacements shall be so warranted for 12 months after planting of the replacement. Page 6 9. LICENSE. The Developer hereby grants the City, its agents, employees, officers and contractors a non-revocable license to enter the Property to perform all work and inspections deemed appropriate by the City in conjunction with the development of the Property. 10. EROSION CONTROL. A. Developer shall be responsible for constructing and maintaining all grading, storm water/drainage infrastructure, and erosion control in compliance with the Plans, the City Engineer’s requirements, and the individual building/grading plan for each specific lot, until the later of: (i) such time as the City has accepted the Developer Installed Improvements in writing; or (ii) until each specific lot is sold. B. Developer shall install silt fence prior to lot construction to avoid erosion to adjoining properties, public sidewalk or the public street; locate all garbage roll offs and dumpsters, or cause the same to be located, on the Property and not on public property; and install protection at catch basins to prevent silt and debris from entering the storm sewer. C. Developer shall seed or lay cultured sod in all boulevards and restore all other areas disturbed by the Development Work within thirty (30) days of the completion of street related improvements. Boulevard and Area Restoration shall be in accordance with the approved erosion control plan and SWPPP. No building permits will be issued until the Developer has installed silt-fence behind the curb of all buildable lots. Developer shall be responsible for the maintenance of any silt fence installed. Upon request of the City Engineer, the Developer shall remove the silt fences after turf establishment. D. Prior to initiating site grading, the erosion control plan and SWPPP shall be implemented by the Developer and inspected and approved by the City Engineer. The City may require the Developer, at no cost to the City, to install additional erosion control measures if they are necessary to meet erosion control objectives. All areas disturbed 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. Page 7 E. No development, utility or street construction will be allowed unless the Property is in full compliance with the erosion control requirements. 11. CONSTRUCTION ACCESS. Construction traffic access is restricted to Center Road and Northwood Road, and Lime Road. No construction traffic is permitted on other adjacent local streets. 12. IMPROVEMENTS REQUIRED BEFORE ISSUANCE OF BUILDING PERMITS. A. Wetland Buffer Signage must be installed prior to the issuance of any building permits within the Property and in accordance with the requirements of the Public Works Design Manual (Part III, Hydrology Rules). B. A temporary or permanent Certificate of Occupancy shall not be issued for any building on the Property 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. C. Notwithstanding any other provision of this Agreement, the City will issue a building permit for up to two (2) model homes and a temporary parking lot upon Developer’s compliance with the following requirements: (1) approval of the building plans by the Building Official; (2) approval of a site survey for the model home(s) and parking lot(s) by the City Planner, and (3) presence of a paved street within 300 feet of a model home and presence on said paved street of a fire hydrant within 300 feet of a model home and approval by the Fire Chief. 13. CONSTRUCTION OBSERVATION. The City’s authorized personnel shall provide construction observation during the installation of the Developer Installed Improvements in accordance with the PWDM. These services by the City shall include: A. Construction observation during installation of required Developer Installed Improvements, which include grading, sanitary sewer, water main, storm sewer/ponding and street system. B. Documentation of construction work and all testing of Developer Installed Improvements. Page 8 C. Field document as-built location dimensions for sanitary sewer, water main and storm sewer facilities. The Developer’s Engineer is responsible for data collection and preparation of as-built record plans. 14. DEDICATIONS, CONVEYANCES, EASEMENTS AND VACATIONS. A. Developer shall convey to the City, through dedication in the final Plat or a separate conveyance document, fee title or an easement (whichever is required by the City) to all of the following: (i) the property encompassing all Developer Installed Improvements, (ii) property necessary for all public and private connections and access to all Developer Installed Improvements, (iii) property for streets, sidewalks and trials identified in paragraph 4; (iv) property for park dedication identified in paragraph 15 and (iv) all other property interests, conveyance of which is required by this Agreement. C. Developer shall obtain the City Engineer’s written approval of the form of the conveyance documents and the location of all easements or fee title conveyances required by this Agreement. D. With respect to any interest in all portions of the Property which Developer is required, pursuant to this Agreement, to dedicate or convey to the City ("Dedicated Property"), Developer represents and warrants as follows now and at the time of dedication or conveyance: (i) that Developer has marketable fee title free and clear of all mortgages, liens, and other encumbrances to the Dedicated Property. Prior to final plat approval, Developer shall provide to the City a current title insurance policy insuring such a condition of title; (ii) that Developer has not used, employed, deposited, stored, disposed of, placed or otherwise allowed to come in or on the Dedicated Property, any hazardous substance, hazardous waste, pollutant, or contaminant, including, but not limited to, those defined in or pursuant to 42 U.S.C. § 9601, et. seq., or Minn. Stat., Sec. 115B.01, et. seq. (such substances, wastes, pollutants, and contaminants hereafter referred to as "Hazardous Substances"); (iii) that Developer has not allowed any other person to use, employ, deposit, store, dispose of, place or otherwise have, in or on the Property, any Hazardous Substances; and (iii) that to the best of its knowledge, Developer warrants that no previous Page 9 owner, operator or possessor of the Property deposited, stored, disposed of, placed or otherwise allowed in or on the Property any hazardous substances. E. Developer agrees to indemnify, defend and hold harmless City, its successors and assigns, against any and all loss, costs, damage and expense, including reasonable attorneys’ fees and costs, that the City incurs because of the breach of any of the above representations or warranties and/or resulting from or due to the release or threatened release of Hazardous Substances which were, or are claimed or alleged to have been, used, employed, deposited, stored, disposed of, placed, or otherwise located or allowed to be located, in or on the Dedicated Property by Developer, its employees, agents, contractors or representatives. 15. PARK DEDICATION AND PLANS OR PARK DEDICATION FEES. Prior to release of the final Plat, Developer shall pay cash park fees as to all of the Property as required by City Code in effect as of the date of the plat approval, as specified in Exhibit B. 16. FEES. Developer shall pay the fees set forth in Exhibit B prior to any work occurring on the Property. Such fees may include but are not limited to the following: A. Administrative Fee. Developer shall pay to the City an Administrative Fee based on construction cost estimates to reimburse the City for such costs. Any costs incurred by the City in excess of the Administrative Fee shall be the responsibility of the Developer. B. Construction Observation Deposit. Developer shall make a cash deposit with the City for construction observation. Any costs incurred by the City in excess of the deposit shall be the responsibility of the Developer. City shall invoice to the Developer for such costs and Developer shall pay all such invoices within ten (10) days of receipt. Any balance remaining after the City’s final acceptance of the Developer Installed Improvements shall be returned to the Developer. C. Tree Preservation and Replacement. D. Trunk Storm Water Acreage Charge. Page 10 E. Trunk Water Acreage Charge. F. Trunk Sewer Acreage Charge. G. Street Oversize Acreage Charge H. Utility Connection Charge. I. Street Light Operational Costs. 17. MAINTENANCE OF PLATTED LOTS. Developer shall provide ongoing maintenance of all platted lots on the Property (with the exception of outlots upon which no improvements are anticipated until some future phase of development), including but not limited to mowing and weed control, sidewalk clearing (ice, snow, building materials, eroded materials, and other debris), storm water and erosion control, and other maintenance issues for which the Developer receives notice from the City Manager or his/her designee. Developer’s obligations pursuant to this paragraph shall continue until the later of: (i) such time as the City has accepted the Developer Installed Improvements in writing; or (ii) until each specific lot is sold. 18. OVERSIZING. Oversizing is the construction of a Developer Installed Improvement to City specifications that exceeds those that would be required of the Developer in order to serve additional development. 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. City and Developer agree that the cost of system oversizing to be reimbursed to the Developer is 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 as described in Exhibit B. 19. LANDSCAPING (Single-Family Residential). In accordance with the City Subdivision Ordinance, each residential lot on the Property must have at least two (2) front yard trees. The City shall not issue a building permit for a lot until two (2) front yard trees are planted or retained and a cash escrow or Page 11 letter of credit for the lot in question’s landscaping is provided to the City. The City shall not issue a certificate of occupancy for a lot until the front yard, boulevard, and side yards to the rear of every structure have been sodded, weather permitting. If the required landscaping is not installed, the City is granted a right of entry to enter upon the lot and install the landscaping using the escrowed funds or letter of credit. Upon satisfactory completion of the landscaping on the lot, the escrowed funds less any draw made by the City, shall be returned to the person who deposited the funds with the City. 20. LANDSCAPING (Special Provisions). Landscaping for the Property shall comply with Plan C. Developer shall warrant all required trees, whether the trees are to be retained or planted, for one (1) year from the later of: (i) the planting of the tree; or (ii) the issuance of a certificate of occupancy to the lot upon which the tree is located. A tree replaced under this warranty shall be warranted an additional year (1) year from the date of the planting of the replaced tree. In additional to all other security required under this Agreement, Developer shall provide to the City a cash escrow or letter of credit in the amount specified in Exhibit B to secure the planting and retainage of the required trees and to secure this warranty. If Developer fails to plant or retain the required trees or fails to comply with this warranty, the City may draw upon the escrowed funds or letter of credit to plant or replace required trees. Developer may periodically request reductions of the escrowed funds or letter of credit and the City may approve such a request in an amount of the value of each healthy tree for which the warranty has expired as determined by the City. No tree plantings shall be placed within five (5) feet of a sanitary sewer, storm sewer, or water main line. All plantings permitted in public right-of-way/boulevard areas shall be placed a minimum four (4) feet behind the curb, be of deciduous species (no coniferous species), and be located outside of a fifty (50) foot sight triangle at street corners. 21. SECURITY. A. To guaranty compliance with the terms of this Agreement, Developer shall furnish the City an irrevocable letter of credit or other security deemed acceptable to the City in the following amounts: Page 12 i. 125% of projected costs for the Developer Installed Improvements as certified to by a registered engineer and approved by the City Engineer or his/her designee. ii. 125% of projected costs for the grading, drainage, wetland and erosion control plan, including storm water calculations from proposed impervious surfaces as certified by a registered engineer and approved by the City Engineer or his/her designee. iii. 125% of projected costs for the landscape plan, as certified by a registered engineer and approved by the City Engineer or his/her designee. B. This breakdown is for historical reference; it is not a restriction on the use of the Security. C. The irrevocable letter of credit or other security deemed acceptable to the City is referred to throughout this Agreement as the “Security.” The Security shall be in the form attached hereto as Exhibit C, from a bank approved by the City. The bank shall be authorized to do business in the State of Minnesota. The Security shall extend through completion and acceptance (including the expected warranty period) by the City of the Development Work. D. In the event that Developer fails to comply with the terms of this Agreement, the City may draw on the Security in whole or in part without notice by delivering or mailing by certified mail to the issuer a statement identifying the amount of the draw and reason for the draw. In addition, if the Development Work is not completed at least 30 days prior to the expiration of the Security, the City may draw on the Security in the same manner. The City shall not be under any obligation to cure any breach of the terms of this Agreement with the proceeds from the Security, but may, at the City’s sole option, cure the breach or retain the proceeds from the Security until Developer cures the breach. In the event the breach is fully cured by Developer, the City shall then release to Developer such retained draw proceeds, less any expenses incurred by the City as a result of the breach (including but not limited to engineer’s, attorney’s, and other consultant fees and costs). E. If the City makes a draw on the Security, Developer shall immediately replenish the Security to an amount then sufficient to cure any breach plus 125% of the cost of all Development Work then remaining for which the Security was required. Page 13 F. The City may, from time to time, and only if Developer is otherwise in compliance with all terms of the Agreement, approve a reduction in the amount of the Security based upon work completed and approved by the City Engineer or his/her designee, except that the City may, at all times, maintain the Security in an amount equal to 125% of the actual projected costs for all remaining Development Work for which the Security was required as determined by the City Engineer or his/her designee and 25% of the value of the completed Development Work for which the Security was required. In any event, the City may maintain a minimum 5% of the value of the actual projected costs throughout the warranty period and until the maintenance bonds described in paragraph 8 have been accepted and approved by the City. In the event that maintenance bonds are not submitted, the City may maintain a minimum 25% of the of the value of the actual projected costs throughout the warranty period. 22. CLEAN UP AND DAMAGE: A. Developer assumes full financial responsibility for any damage which may occur to public property including but not limited to streets, street sub- base, base, bituminous surface, curb, utility system including but not limited to water main, sanitary sewer or storm sewer when said damage occurs as a result of the activity which takes place during the development of the Property. Developer further agrees to pay all costs required to repair the streets, utility systems and other public property damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place on the Property. B. Developer shall clean the streets every day or as required by the City Engineer. C. Developer agrees that any damage to public property occurring as a result of construction activity on the Property shall be repaired immediately if deemed to be an emergency by the City. Developer further agrees that any damage to public property as a result of construction activity on the Property shall be repaired within 14 days if not deemed to be an emergency by the City. 23. NON-INTERFERENCE WITH ADJOINING PROPERTIES. All work performed by Developer and Developer’s contractors and subcontractors shall be performed exclusively upon the Page 14 Property. Any work related to roads, trails, drainage, and utility improvements, which are specified herein to occur on land outside the Property, shall occur exclusively within the appropriate easement boundaries for such work. In no event shall any work performed by Developer or Developer’s contractors and subcontractors interfere with other properties, right-of-ways, or easements. 24. DEVELOPER’S RESPONSIBILITY FOR CODE VIOLATIONS: In the event of a violation of City Code relating to use of the Property during construction thereon or failure to fulfill an obligation imposed upon the Developer pursuant to this Agreement, City shall give 72 hour notice of such violation in order to allow a cure of such violation, provided however, City need not issue a building or occupancy permit for construction or occupancy on the Property while such a violation is continuing, unless waived by City. The existence of a violation of City Code or the failure to perform or fulfill an obligation required by this Agreement shall be reasonably determined by the City Manager or a designee. 25. DEVELOPER'S RESPONSIBILITY FOR ITS CONTRACTORS: Developer shall release, defend and indemnify City, its elected and appointed officials, employees and agents from and against any and all claims, demands, lawsuits, complaints, loss, costs (including attorneys’ fees), damages and injunctions relating to any acts, failures to act, errors, omissions of Developer or Developer's consultants, contractors, subcontractors, suppliers and agents. Developer shall not be released from its responsibilities to release, defend and indemnify because of any inspection, review or approval by City. 26. RESPONSIBILITY FOR COSTS. Except as otherwise specified herein, Developer shall pay all costs incurred by it or the City in conjunction with the development of the Property, including, but not limited to, legal, planning, engineering, design, development, construction, clean up, repair, easement and land acquisition, and inspection expenses incurred in connection with (i) review, approval, denial, and implementation of zoning, CUP, platting, site and building plan, and any other reviews, approvals, or denials by the City and any other reviewing authority; (ii) the Developer Installed Improvements; (iii) the Property; (iv) the preparation and review of the Agreement and other documents referred to in the Page 15 Agreement or related to the Development Work; and (v) enforcing the terms of this Agreement. Developer shall pay in full all bills submitted to it by the City, in accordance with this Agreement, within 30 days after receipt. 27. DEVELOPER'S DEFAULT. A. Definition. In the context of this Agreement, “Event of Default” shall include, but not be limited to, any one or more of the following events: (1) failure by the Developer to pay in a timely manner, all fees, charges, taxes, claims and liabilities, including but not limited to all real estate property taxes, utility charges, and assessments with respect to the development property; (2) failure by the Developer to construct the Developer Installed Improvements pursuant to the terms, conditions and limitations of this Agreement; (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 Agreement; (4) transfer of any interest in the Property without prior written approval by the City Council (for the purpose of this paragraph, the sale of a lot, except an outlot, to a builder is not an event of default); (5) failure to correct any warranty deficiencies; (6) failure by the Developer to reimburse the City for any costs incurred by the City or to pay when due the payments required to be paid or secured in connection with this Agreement; (7) failure by the Developer to renew the Security at least thirty (30) days prior to its expiration date; (8) receipt by the City from the Developer’s insurer of a notice of pending termination of insurance; (9) failure to maintain a current insurance certificate on file with the City meeting City requirements; (10) failure to maintain the required Security; (11) a breach of any provision of this Agreement; (12) If any representation made by Developer in this Agreement, is inaccurate, either when made or at a later date; (13) Failure by Developer to pay its debts as they become due, the voluntary or involuntary filing of a petition in bankruptcy, an assignment by Developer for the benefit of its creditors, or the appointment of a receiver for (a) Developer; (b) all or any substantial portion of Developer’s assets; (c) the Property; or (14)If Developer is in default under any mortgage or other pledge, guaranty or security agreement.. Page 16 B. Event of Default - Remedies. Whenever an Event of Default occurs, the City may take any one or more of the following actions: 1. The City may suspend its performance under this Agreement. 2. 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 Agreement. 3. 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 Agreement or to enforce performance and/or observance of any obligation, agreement or covenant of development under this Agreement. 4. 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. 5. Suspend the release of any escrowed dollars. 6. Use of escrow dollars or other security to satisfy any outstanding financial obligations to the City including but not limited to all real estate property taxes, utility charges, and assessments with respect to the property; 7. The City is hereby granted the option, but not the obligation, to complete or cause completion in whole or part of all of the Developer’s obligations under this Agreement. This Agreement is a license for the City to act, and it shall not be necessary for the City to seek a court order for permission to enter the Property and cure the default, including but not limited to, completion of the Development Work. When the City does any such work all costs incurred by the City in performing such work shall be recoverable by it from the Security, and shall also constitute a lien on the Property, and the City may, in addition to its other remedies, collect the costs in whole or in part as special assessments as specified in Chapter 429 of the Minnesota Statutes. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes Section 429.081. Page 17 C. Notice. In a non-emergency, Developer shall first be given written notice of the Event of Default not less than 48 hours prior to curing the default or exercising a remedy, or such other period of time as the City, in its sole discretion, deems reasonable under the circumstances. If, in the City’s judgment, an Event of Default results in a threat to the public health, safety or welfare, the City may act to correct the default without notice. D. Election of Remedies. No remedy conferred in this Agreement is intended to be exclusive and each shall be cumulative and shall be in addition to every other remedy. The election of any one or more remedies shall not constitute a waiver of any other remedy. The City may, but is not obligated to, exercise any of the remedies referred to in this paragraph 27. 28. NOTICES. A. 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: Pebble Creek Custom Homes LLC, 13875 Hwy 13 South, Suite 100, Savage, MN 55378. Notices to the City shall be in writing and shall be either hand delivered to the City Manager, or mailed to the City by certified mail in care of the City Manager at the following address: City of Prior Lake, 4646 Dakota Street SE, Prior Lake, Minnesota 55372. Concurrent with providing notice to the City, Notice(s) shall be served upon the City Attorney Sarah Schwarzhoff, Gregerson, Rosow, Johnson & Nilan, LTD, 100 Washington Avenue South, Suite 1550, Minneapolis, MN 55401. B. Notices shall be deemed effective on the date of receipt. Any party may change its address for the service of notice by giving written notice of such change to the other party, in any manner above specified, 10 days prior to the effective date of such change. C. Notice related to an Event of Default 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; Page 18 (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. 29. 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 Agreement or the Development Work. The responsibility to indemnify and hold harmless 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. 30. NO THIRD PARTY RECOURSE. The City and Developer agree that third parties shall have no recourse against the City under this Agreement. The Developer agrees that any party allegedly injured or aggrieved as a result of the City’s approval of the final 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 29 shall apply to said actions. This Agreement is a contract agreement between the City and the Developer. No provision of this Agreement inures to the benefit of any third person, including the public at large, so as to constitute any such person as a third-party beneficiary of the Agreement or of any one or more of the terms hereof, or otherwise give rise to any cause of action for any person not a party hereto. 31. 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, a policy of insurance with limits for bodily injury and death of not less than $1,000,000.00 per person and $2,000,000.00 for each occurrence; limits for property damage shall be not less than $2,000,000.00 for each occurrence; or a combination single limit policy of not less than $2,000,000.00. The City, its elected and appointed officials, officers, employees, planners, engineers, Page 19 attorneys, and agents shall be named additional insureds on any such policy. The insurance certificate shall provide that the City shall be given 30 days advance written notice before any modification, amendment or cancellation of the insurance becomes effective. 32. FINAL PLAT AND DEVELOPMENT AGREEMENT: The final Plat and Agreement shall be recorded with the Scott County Recorder or Registrar of Titles, as applicable within 90 days of approval by the City Council. The final plat shall be considered void if not recorded within the 90 days provided for herein unless a request for a time extension is submitted in writing and approved by the City Council prior to the expiration of the 90-day period. 33. RECONSIDERATION OR RESCISSION: If Developer fails to proceed in accordance with this Agreement within twenty-four (24) months of the date hereof, Developer, for itself, its successors, and assigns, shall not oppose the City’s reconsideration and rescission of all approvals issued in connection with this Agreement, thus restoring the status of the Property before the Agreement and all such approvals. 34. SIGNS: 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. 35. MISCELLANEOUS. A. Compliance With Other Laws. The Developer represents to the City that the Plat and the Developer in performing all work under this Agreement shall comply 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 or Developer is not in compliance, the City may, at its option, refuse to allow construction or development work on the Property until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. Page 20 B. Severability. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Agreement is for any reason held invalid, such decision shall not affect the validity of the remaining portions of this Agreement. C. Amendments. There shall be no amendments to this Agreement 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 Agreement shall not be a waiver or release. D. Assignment. The Developer may not assign this Agreement 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 Property, or any part of it. E. Interpretation. This Agreement 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 Agreement as a whole rather than to any particular section or subdivision hereof. Titles in this Agreement are inserted for convenience of reference only and shall be disregarded in constructing or interpreting any of its provisions. F. Successors and Assigns. Provisions of this Agreement shall be binding upon and enforceable against Developers successors and assigns including but not limited to all purchasers and owners of all or any part of the Property and their successors and assigns. G. Performance Standards. The Property shall be developed and operated in a manner meeting all applicable noise, vibration, dust and dirt, smoke, odor and glare laws and regulations. H. No City Liability. Except for the intentional acts of the City or its employees and contractors, no failure of the City to comply with any term, condition, covenant or agreement herein shall subject the City to liability for any claim for damages, costs or other financial or pecuniary charges. Page 21 I. Exhibit A. The Developer hereby irrevocably nominates, constitutes, and appoints and designates the City as its attorney-in-fact for the sole purpose and right to amend Exhibit A hereto to identify the legal description of the Property after platting thereof. Page 22 CITY OF PRIOR LAKE By: ________________________________ _____________________, Mayor By: ________________________________ _____________________, City Manager STATE OF MINNESOTA ) (ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _____ day of ____________, 20__, by _____________________, Mayor, and by ____________________, 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 Page 23 PEBBLE CREEK CUSTOM HOMES LLC By: ________________________________ Its: ________________________________ STATE OF MINNESOTA ) (ss. COUNTY OF __________ ) The foregoing instrument was acknowledged before me this ______ day of ____________, 20__, by _ (name of person signing) ____________as __ (title of person signing) ________ of ____ (developer name) _________________, a ____ (type of company) ________________, on behalf of the __________(company/corporation) ____________. _____________________________________ NOTARY PUBLIC DRAFTED BY: City of Prior Lake 4646 Dakota Street SE Prior Lake, Minnesota 55372 Page 24 OWNERS' SUPPLEMENT TO DEVELOPMENT AGREEMENT BETWEEN _______________________________ AND THE CITY OF PRIOR LAKE THIS AGREEMENT, made and entered into as of _______________________, 20____, by and between ____________________________, a Minnesota _________, ("Owner"), and the City of Prior Lake ("City"): For, and in consideration of, and to induce City to adopt Resolution No. ____________ for ___(list all approvals)____________ approval for the construction of ______(number and type of units)__________ units and the related public improvements (collectively the “Approvals”), as more fully described in that certain Development Agreement entered into as of __________________, 20___, by and between ______________________________, a Minnesota ______________ (“Developer”) and City ("Development Agreement") pertaining to that certain Property described on Exhibit A hereto, Owner agrees with City as follows: 1.If Developer fails to commence development in accordance with the Development Agreement and fails to obtain an occupancy permit for all of the improvements referred to in the Development Agreement within 24 months of the date of this Owners' Supplement, Owner shall not oppose the City's reconsideration and rescission the Approvals, thus restoring the status of the Property before the Development Agreement and all Approvals were approved. 2.This Agreement and the Development Agreement shall be binding upon and enforceable against the Property and the Owners, their successors and assigns of the Property. 3.If Owner transfers this Property, Owner shall obtain an agreement from the transferee requiring that such transferee agree to all of the terms, conditions and obligations of Developer in the Development Agreement. Neither the Owner or transferee are required to develop the property in accordance with this Agreement, so long as Owner or transferee obtain such approvals as are required by City Code to develop the Property in a manner other than as set forth in this Agreement. IN WITNESS WHEREOF, the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. [signatures on following pages] Page 25 MORTGAGEE CONSENT TO DEVELOPMENT AGREEMENT _____________________, which holds a mortgage on the subject property, the development of which is governed by the foregoing Development Agreement, agrees that the Development Agreement shall remain in full force and effect even if it forecloses on its mortgage. Dated this _____ day of ____________, 20__. ____________________________ By: ________________________________ Its: _______________________________ STATE OF MINNESOTA ) (ss. COUNTY OF __________ ) The foregoing instrument was acknowledged before me this _____ day of ________________, 20__, by ____________________ the _______________________ of ______________________. ________________________________________ NOTARY PUBLIC DRAFTED BY: City of Prior Lake 4646 Dakota Street SE Prior Lake, Minnesota 55372 E X H I B I T A Page 27 EXHIBIT B TO DEVELOPMENT AGREEMENT Fee Amt Per Total Administrative Fee $0 X 4% Const. Cost = $ 0.00 Construction Observation (Escrow) $ 1,225.00 X 5% Const. Cost = $1,225.00 Park Dedication Fee $ 3,750.00 X 1 unit = $ 3,750.00 Trunk Storm Water Acreage $ 3,376.00 X 0.881 Acres = $ 2,974.00 Trunk Water Acreage $ 6,960.00 X 0.881 Acres = $ 6,132.00 Trunk Sanitary Sewer Acreage $ 3,678.00 X 0.881 Acres = $ 3,240.00 Street Oversize Acreage $ 5,953.00 X 0.881 Acres = $ 5,245.00 Utility Connection $ 18,000.00 X 1 unit = $18,000.00 TOTAL $40,566.00 Security Total Sanitary Sewer = $ 15,000.00 Water Main = $ 6,300.00 Storm Sewer = Small Utilities = Streets/Sidewalks/Trails = Street Signs = Traffic Control Signs = Landscaping/Irrigation = Grading = Erosion Control = Contingency = $ 3,195.00 Subtotal = $ 24,495.00 Total (125% of subtotal) = $ 30,619.00 Oversizing Calculation Amt Per Total NA Page 28 EXHIBIT C SAMPLE IRREVOCABLE LETTER OF CREDIT No. ___________________ Date: _________________ TO: City of Prior Lake 4646 Dakota Street SE Prior Lake, Minnesota 55372 Dear Sir or Madam: By order of our client [name and address of client] we hereby issue our standby irrevocable Letter of Credit for the account of the [insert name of client] for an amount or amounts not to exceed in the aggregate U.S. Dollars $ ___________________________ (__________________ Thousand and No/100 U.S. Dollars) effective immediately and expiring at our [insert address of office] on [insert date] relative to our client’s performance under that certain contract entitled [insert name of contract/development agreement, etc.] dated [insert date of contract]. Funds under this Letter of Credit are available against your sight draft(s) on us, for all or part of this Letter of Credit, mentioning thereon our Credit No.______. Each such draft must be accompanied by your signed written statement to the effect that [name of client] has failed to comply with the terms and conditions of the above mentioned contract. Presentation will also be deemed made upon our receipt of your telecopier transmission to us at (FAX NUMBER [insert fax number] _____________________) of a facsimile of the appropriate sight draft and written statement completed and signed, together with your telephone advice to us at (TELEPHONE NUMBER [insert telephone number] _________________________________) or such other number as we shall specify to you in writing) of your sending the above-described telecopier transmission. Failure to make the telephone advice will not impair the validity of the presentation. If presentations are made by facsimile the original documents are not required. In the event that at least thirty (30) days prior to the expiry date listed above, this Letter of Credit is not extended for a period of at least one year or has not been replaced with a substitute Letter of Credit acceptable to you, this Letter of Credit is also payable to you upon presentation to us of your written statement mentioning thereon our Credit No.[insert number] ____ and stating “Letter of Credit No. [insert number] __________ has not been extended for a period of at least one year from the present expiration date and has not been replaced with a substitute Letter of Credit acceptable to us.” This letter of credit shall automatically extend for successive one-year terms unless at least forty-five days prior to the next annual extension date of [insert day and month of renewal] ________________ of such year, we deliver written notice by registered mail or overnight courier to the City that we intend not to extend the letter of credit for any additional period. If such notice is delivered and the letter of credit has not been replaced with a substitute letter of credit acceptable to you by the date of said notice, this letter of credit is also payable to you upon presentation to us of your written statement mentioning thereon our Letter of Credit No. [insert number] ______________ and stating “Notice of Modification, Cancellation or Non-Extension of Letter of Credit No. [insert number]_________________has been received and the letter of credit has not been replaced with a substitute letter of credit acceptable to us. If we receive your sight draft(s) and statement(s) as mentioned above, here at our address [insert address], on or before the expiry date of this Letter of Credit, we will promptly honor the same. If an interruption of our business occurred as a result of an Act of God, riots, civil commotion, insurrections, wars or any other causes beyond our control, as described in Article 36 of the Uniform Customs and Practices for Documentary Credits, UCP600 2007 which prevented us from accepting and/or paying you on this Letter of Credit, we undertake upon resumption of our business to accept drafts and pay on this Letter of Credit provided your draft is presented prior or during our business interruption or no later than thirty (30) days following resumption of our business. This Credit is subject to the Uniform Customs and Practices for Documentary Credits, UCP600 2007. Very Truly Yours, [Signature of Issuer]