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HomeMy WebLinkAbout5G Pike Lake Marsh Final Plat Report 4646 Dakota Street SE Prior Lake, MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: MARCH 27, 2017 AGENDA #: 5G PREPARED BY: JEFF MATZKE, PLANNER PRESENTED BY: JEFF MATZKE AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION APPROVING THE PIKE LAKE MARSH FINAL PLAT AND DEVELOPMENT AGREEMENT DISCUSSION: Introduction Ron Clark Construction has applied for approval of a Final Plat to be known as Pike Lake Marsh. The site will be developed as a 68-unit affordable rental hous- ing development, located south of Pike Lake and north of County Highway 42. This proposed affordable workforce housing project is similar to the site Ron Clark Construction recently completed near the Prior Lake/Savage border north of Hwy 42, along Virginia Ave. History The Preliminary Plat for the Pike Lake high density residential project was ap- proved by the City Council on May 26, 2015. On April 25, 2016, the City Council extended the deadline for submittal of the Final Plat to May 27, 2017 to allow the developer to continue to pursue tax credits through the Minnesota Housing Fi- nance Agency (MHFA) in 2016. Later in the Fall of 2016 the project did receive the tax credits they requested. Current Circumstances The development plan calls for a 68-unit high density residential development, including multiple outlots. Outlot E is to be dedicated to the City for wetland protection and stormwater ponding while the remaining 4 outlots (A, B, C, and D) are to be reserved for future development and private ownership. The devel- oper is also dedicating right of way for the roadway extension to the east to Marsh Avenue in the future if such a project becomes appropriate. Staff has reviewed the final plat and finds it to be in substantial compliance with the ap- proved preliminary plat. Conclusion The platting of this property will allow the construction of a 68-unit affordable rental housing development. The City Staff recommends approval of the final plat and the corresponding development agreement. ISSUES: The principal requirements for final plat approval include a Development Agree- ment that specifies the development fees, security, and other requirements for the platted lots. The city would benefit from additional multifamily housing units that serve the needs of an affordable housing population looking for rental op- tions. This location will be a benefit to employees working in various businesses within the Prior Lake, and the surrounding area. 2 Per the Pike Lake Park Concept Plan, a public trail system is envisioned around the corridor of the Pike Lake (a Natural Environmental Lake) in the future. As part of this vision, the City Staff recommends a condition of the plat approval include the requirement of a trail easement granted to the City at the time of future final plat approvals for development of Outlot A, B, C and Outlot D. The next agenda item is approval of the wetland replacement plan which is re- quired following the platting process. FINANCIAL IMPACT: Approval of this final plat will allow construction of the 68-unit multi-family work- force housing project which will contribute to the City’s tax base. Also, while the Developer is dedicating the public right-of-way for the roadway extension of Marsh Drive to the west in the future, the funding for the future construction of this road remains uncertain. ALTERNATIVES: 1. Motion and a second, as part of the Consent Agenda, to approve a Reso- lution approving the Pike Lake Marsh Final Plat and Development Agree- ment. 2. Motion and a second to remove this item from the Consent Agenda for ad- ditional discussion. RECOMMENDED MOTIONS: Alternative #1 ATTACHMENTS: 1. Resolution 17-XXX 2. Final Plat dated March 27, 2017 3. Pike Lake Marsh Draft Development Agreement #DEV15-000002 4646 Dakota Street SE Prior Lake, MN 55372 RESOLUTION 17-___ A RESOLUTION APPROVING THE PIKE LAKE MARSH FINAL PLAT AND DEVELOPMENT AGREEMENT Motion By: Second By: WHEREAS, Ron Clark Construction Inc. (the “Developer”) has applied to the City of Prior Lake for approval of a Final Plat for Pike Lake Marsh; and WHEREAS, The City Council has found that the final plat of Pike Lake Marsh is in substantial compliance with the approved preliminary plat for Pike Lake. 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 as if fully set forth. 2. The final plat of Pike Lake Marsh is approved subject to the following conditions, which shall be met by the Developer prior to release of and recording of the final plat: a. Payment of all fees prior to release of the final plat mylars. b. Reductions of the entire final plat be submitted, to the following scales: 1” = 200’; and one reduction at no scale which fits onto an 8 1/2” x 11” sheet of paper. c. Three mylar sets of the final plat with all required signatures are submitted. d. 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 June 25, 2017, will render the final plat null and void. e. A public trail easement shall be granted to the City near the shores of Pike Lake in the area of Oulots A, B, C, and D with the future final plats of these outlots. 3. The Mayor and City Manager are hereby authorized to execute the Development Agreement on behalf of the City. PASSED AND ADOPTED THIS 27th DAY OF MARCH, 2017. VOTE Briggs McGuire Thompson Braid Burkart Aye ☐ ☐ ☐ ☐ ☐ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ _____________________________ Frank Boyles, City Manager Page 1 DEVELOPMENT AGREEMENT PIKE LAKE MARSH PROJECT #DEV16-000002 This Development Agreement (“Agreement”) is entered into this 27th day of March, 2017, by and between the City of Prior Lake, a Minnesota municipal corporation ("City"), and Ron Clark Construction Inc., a Minnesota Corporation (“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 a 68-unit high density residential apartment building on the Property; NOW, THEREFORE, in consideration of the City adopting Resolution No. ____________ (“Resolution”) for Final Plat approval for the construction of a 68-unit high density residential apartment building 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 Engineer or his/her designee (Prepared by Landform Inc.) 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 Campion Engineering Servies Inc.) Plan C -- Plans and Specifications for Developer Installed Improvements as stamped approved by the City Engineer or his/her designee (Prepared by Campion Engineering Services Inc.) Plan D -- Landscape Plan as stamped approved by the Community and Economic Development Director or his/her designee (Prepared by Campion Engineering Services Inc.) 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 Pike Lake Trail NE. 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. B. 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. C. 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. D. 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. 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 (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 Page 11 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. 20. 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: 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. Page 12 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. 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. Page 13 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. 21. 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. 22. NON-INTERFERENCE WITH ADJOINING PROPERTIES. All work performed by Developer and Developer’s contractors and subcontractors shall be performed exclusively upon the 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. 23. 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 Page 14 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. 24. 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. 25. 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 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. 26. 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 Page 15 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.. 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 Page 16 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. 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 Page 17 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. 27. 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: 7500 West 78th Street, Edina, MN 55439. 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; (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. 28. 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 Page 18 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. 29. 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. 30. 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, 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. 31. 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 Page 19 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. 32. 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. 33. 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. 34. 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. 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. Page 20 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. 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 21 CITY OF PRIOR LAKE By: ________________________________ Kirt Briggs, Mayor By: ________________________________ Frank Boyles, City Manager STATE OF MINNESOTA ) (ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _____ day of ____________, 20__, by Kirt Briggs, 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 Page 22 Ron Clark Construction Inc. By: ________________________________ Its: ________________________________ STATE OF MINNESOTA ) (ss. COUNTY OF __________ ) The foregoing instrument was acknowledged before me this ______ day of ____________, 20__, by _________________________as __________________________ of Ron Clark Construction Inc., a Minnesota Corporation. _____________________________________ NOTARY PUBLIC DRAFTED BY: City of Prior Lake 4646 Dakota Street SE Prior Lake, Minnesota 55372 Page 23 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 24 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 E X H I B I T A E X H I B I T A Page 28 EXHIBIT B TO DEVELOPMENT AGREEMENT Fee Amt Per Total Administrative Fee $544,524.00 X 4% Const. Cost = $21,781.00 Adminstrative Fee (previously escrowed) ($10,000.00) Construction Observation (Escrow) $544,524.00 X 5% Const. Cost = $27,226.00 Park Dedication $3,750.00 X 68 units = $255,000.00 Trunk Storm Water Acreage $5,060.00 X 5.878 acres = $29,743.00 Trunk Water Acreage $6,692.00 X 5.878 acres = $39,336.00 Trunk Sanitary Sewer Acreage $3,344.00 X 5.878 acres = $19,656.00 Street Oversize Acreage $5,412.00 X 5.878 acres = $31,812.00 Utility Connection 18,000.00 X 1 unit = $18,000.00 TOTAL = $432,554.00 Security Total Sanitary Sewer = $ 14,745.00 Water Main = $ 188,815.00 Storm Sewer = $87,241.00 Streets/Sidewalks/Trails =$253,723.00 Landscaping/Irrigation =$113,944.00 Grading = $156,706.00 Subtotal = $815,174.00 Total (125% of subtotal) = $ 1,018,967.00 Oversizing Calculation Total Watermain = $94,970.00 Page 29 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]