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HomeMy WebLinkAbout5K Friendship Church Utility Extension Report 4646 Dakota Street SE Prior Lake, MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: MAY 7, 2018 AGENDA #: 5K PREPARED BY: PRESENTED BY: NICK MONSERUD, ASSISTANT CITY ENGINEER NICK MONSERUD AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION APPROVING THE FRIEND- SHIP BAPTIST CHURCH UTILITY DEVELOPMENT AGREEMENT DISCUSSION: Introduction The purpose of this item is to consider approval of entering into a Utility Devel- opment Agreement with Friendship Baptist Church (Church), allowing them to extend public infrastructure in public right-of-way in order to provide City sewer and water services to the Church. History Friendship Church was constructed in 1985 and has been operating since on a private well and septic system. In 2005 the first phase of the Maple Glen devel- opment brought City sewer and water mains under Highway 13 and extended them south toward Friendship Church. In the second phase of the Maple Glen development, sewer and water services were extended to the northeast corner of the Church property with the construction of Thornton Drive. Over the last few years the Church has had discussions with the City to come up with the best approach to getting sewer and water services to the Church, as the maintenance of the septic system has become more burdensome. Current Circumstances Friendship Baptist Church has provided plans to the City to extend public infra- structure within the platted right-of-way for the Thornton Drive future extension. The public infrastructure will be extended to the northwest property corner of the church. At this time, it is not planned to extend Thornton Drive to 176th St., only utilities. Once the public infrastructure is completed, water and sewer services will be installed along the west property line to the Church. Conclusion The approval of the Utility Development Agreement will allow the Church to have City sewer and water services. This will add one more property within the City served by municipal sewer and water. ISSUES: The requirement to extend the utilities include a Utility Development Agreement that specifies the development fees and other requirements for the installation of public infrastructure. FINANCIAL IMPACT: Approval of this Agreement will allow construction of public infrastructure and services to Friendship Baptist Church, thus eliminating the need for a well and 2 septic system on their property. No costs to the City will be incurred as part of this project. ALTERNATIVES: 1. Motion and a second, as part of the Consent Agenda, to approve a resolu- tion approving the Friendship Baptist Church Utility Development Agree- ment. 2. Motion and a second to remove this item from the consent agenda for addi- tional discussion. RECOMMENDED MOTION: Alternative #1 ATTACHMENTS: 1. Location Map 2. Utility Development Agreement Friendship Church #18-000011 4646 Dakota Street SE Prior Lake, MN 55372 RESOLUTION 18-___ A RESOLUTION APPROVING THE THE FRIENDSHIP BAPTIST CHURCH UTILITY DEVELOPMENT AGREEMENT Motion By: Second By: WHEREAS, WHEREAS, Friendship Baptist Church, property owner, (Church) has submitted an Right-of- way Permit application to the City of Prior Lake for approval to extend public infrastructure within the Thornton Drive right-of-way in order to provide City water and sewer services to the Church property; and The Church is currently served by a well and septic system. 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 Utility Development Agreement is approved subject to the following conditions, which shall be met by the Church prior to release of the right-of-way permit: a.Payment of all fees associated with the Utility Development Agreement. b.All Public Works comments from the April 20, 2018 plan review memorandum are addressed. 3.The Mayor and City Manager are hereby authorized to execute the Utility Development Agreement on behalf of the City. PASSED AND ADOPTED THIS 7TH DAY OF MAY 2018. VOTE Briggs McGuire Thompson Braid Burkart Aye ☐ ☐ ☐ ☐ ☐ Nay ☐ ☐ ☐ ☐ ☐ Abstain ☐☐ ☐ ☐ ☐ Absent ☐☐ ☐ ☐ ☐ ______________________________ Frank Boyles, City Manager FRIENDSHIP CHURCH PROJECT LOCATION MAP Page 1 UTILITY DEVELOPMENT AGREEMENT FRIENDSHIP BAPTIST CHURCH PROJECT #18-000011 This Utility Development Agreement (“Agreement”) is entered into this 7th day of May, 2018, by and between the City of Prior Lake, a Minnesota municipal corporation ("City"), and Friendship Baptist Church, a Minnesota Corporation (“Owner”). WHEREAS, Owner is the owner of property located within the City of Prior Lake, County of Scott, legally described on Exhibit A (“Owner’s Property”); WHEREAS, Owner desires to connect the Owner’s Property to City water and sewer utilities; WHEREAS, in order to connect the Owner’s Property to water and sewer utilities Owner must construct utilities on the Owner’s Property as well as in the abutting City owned right-of-way identified in the Plans (“ROW”). NOW, THEREFORE, in consideration of the City granting Owner a right of entry to construct utilities in the ROW and connect the Owner’s Property to those utilities, Owner agrees to construct, develop and maintain the Owner’s Property and ROW as follows: 1. PROPERTY. The Owner’s Property and the ROW shall collectively be referred to as the “Property” throughout this Agreement. Page 2 2. RIGHT OF ENTRY. The City grants the Owner the right to enter upon the ROW in order to complete the Development Work as defined below. This right of entry expires on December 31, 2018. 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: Plan A -- 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 Stonebrooke Engineering) Plan B -- Plans and Specifications for Owner Installed Improvements as stamped approved by the City Engineer or his/her designee (Prepared by Stonebrooke Engineering) B. In addition, Owner shall grade, construct upon, and improve the Property pursuant to all requirements of this Agreement, any approving resolution, the Prior Lake City Code, the City's Public Works Design Manual (“PWDM”), and the direction of City Manager or his/her designee. All improvements and other work required by the Plans, the Owner Installed Improvements, and such other work as is required by this Agreement, any approving resolution or the documents or parties identified above are hereafter referred to as the "Development Work." Owner shall be responsible for all costs related to the Development Work. 4. OWNER INSTALLED IMPROVEMENTS. A. The “Owner Installed Improvements” shall include any the following listed improvements which are located within public property, public right-of-way, or public easement as detailed in the Plans: 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, Page 3 Sidewalks, Trails, and Boardwalks, Landscaping and Wetland Buffer Signage. All other improvemnets shall be private improvements. B. Owner shall complete all Owner Installed Improvements and obtain the City’s written acceptance of the Owner Installed Improvements no later than December 31, 2018. C. As a condition of the City’s acceptance of the Owner Installed Improvements, the Owner’s engineer shall by written letter certify to the City that the Owner’s engineer made reasonable inspections of the Owner Installed Improvements and that the Owner Installed Improvements were built in accordance with this Agreement. D. Prior to acceptance of the Owner Installed Improvements by the City, Owner 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 Owner Installed Improvements, the Owner Installed Improvements shall automatically become property of the City without further notice or action. The Owner shall be responsible for all maintenance until written acceptance by the City of the Owner Installed Improvements. F. Under no circumstances shall Owner charge or assess, directly or indirectly, any fee, charge, assessment or consideration, to any party, for connection or access to, or service by, any Owner Installed Improvement. G. In addition to the Owner Installed Improvements, the Owner shall install and pay for any private improvements. The private improvements shall be installed, maintained, operated, repaired and replaced by the Owner and/or owner of the Owner’s Property. The City shall have no obligations in relation to the private improvements. Page 4 5. PROJECT TESTING. The Owner is responsible, at the Owner’s sole cost, to provide testing to certify that Owner 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 Owner. 6. AS-BUILTS. A. Within 30 days after the completion of the Owner Installed Improvements, Owner 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, Owner shall provide the City with an as built grading plan and a certification by a registered land surveyor or engineer that all ponds, swales, and ditches have been constructed on public easements or land owned by the City. The Security shall not be released until the as-builts have been received by the City. The as-built plans shall include field verified elevations of the following: a) cross sections of ponds and b) location and elevations along all swales and ditches. B. Upon completion of the project the Owner 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. WARRANTY. Owner warrants all Owner Installed Improvements against any defects, poor material and faulty workmanship for a period of two years after its completion by Owner and acceptance by the City. Any replacement work shall be so warranted for two years after its completion by Owner 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 5 8. LICENSE. The Owner hereby grants the City, its agents, employees, officers and contractors a non-revocable license to enter the Owner’s Property to perform all work and inspections deemed appropriate by the City in conjunction with the development of the Property. 9. EROSION CONTROL. A. Owner shall be responsible for constructing and maintaining all grading, storm water/drainage infrastructure, and erosion control in compliance with the Plans and the City Engineer’s requirements, until such time as the City has accepted the Owner Installed Improvements in writing. B. Owner shall install silt fence prior to 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. Owner 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 the Development Work. Boulevard and Area Restoration shall be in accordance with the approved erosion control plan and SWPPP. Owner shall be responsible for the maintenance of any silt fence installed. Upon request of the City Engineer, the Owner 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 Owner and inspected and approved by the City Engineer. The City may require the Owner, 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. E. No development, utility or street construction will be allowed unless the Property is in full compliance with the erosion control requirements. Page 6 10. CONSTRUCTION ACCESS. Construction traffic access is not permitted on 176th Street Southeast. 11. CONSTRUCTION OBSERVATION. The City’s authorized personnel shall provide construction observation during the installation of the Owner Installed Improvements in accordance with the PWDM. These services by the City shall include: A. Construction observation during installation of required Owner Installed Improvements, which include grading, sanitary sewer, water main, storm sewer/ponding and street system. B. Documentation of construction work and all testing of Owner Installed Improvements. C. Field document as-built location dimensions for sanitary sewer, water main and storm sewer facilities. The Owner’s Engineer is responsible for data collection and preparation of as-built record plans. 12. DEDICATIONS, CONVEYANCES, EASEMENTS AND VACATIONS. A. Owner shall convey to the City a utilty and access easement for the fire hydrant to be located on the Owner’s Property. B. Owner 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 Owner’s Property which Owner is required, pursuant to this Agreement, to dedicate or convey to the City ("Dedicated Property"), Owner represents and warrants as follows now and at the time of dedication or conveyance: (i) that Owner has marketable fee title free and clear of all mortgages, liens, and other encumbrances to the Dedicated Property (prior to release of the Security, Owner shall provide to the City a current title insurance policy insuring such a condition of title); (ii) that Owner 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 Page 7 hereafter referred to as "Hazardous Substances"); (iii) that Owner 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, Owner warrants that no previous owner, operator or possessor of the Property deposited, stored, disposed of, placed or otherwise allowed in or on the Dedicated Property any hazardous substances. D. Owner 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 Owner, its employees, agents, contractors or representatives. 13. FEES. Owner 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. Owner shall pay to the City an Administrative Fee based on construction cost estimates to reimburse the City for costs incurred. Any costs incurred by the City in excess of the Administrative Fee shall be the responsibility of the Owner. B. Construction Observation Deposit. Owner 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 Owner. City shall invoice to the Owner for such costs and Owner shall pay all such invoices within ten (10) days of receipt. Any balance remaining in the cash deposit after the City’s final acceptance of the Owner Installed Improvements shall be returned to the Owner. C. Utility Connection Charge. Page 8 14. SECURITY. A. To guaranty compliance with the terms of this Agreement, Owner 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 Owner 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. 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 or other form as approved by the City in writing and shall be 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 (including the expected warranty period) and acceptance by the City of the Development Work. D. In the event that Owner fails to comply with the terms of this Agreement (“breach”), 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 Owner cures the breach. In the event the breach is fully cured by Owner, the City shall then release to Owner 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). Page 9 E. If the City makes a draw on the Security, Owner 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 Owner 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 or until the maintenance bonds described in paragraph 4 have been accepted and approved by the City, whichever occurs later. 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. 15. CLEAN UP AND DAMAGE: A. Owner 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. Owner 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. Owner shall clean the streets every day or as required by the City Engineer. C. Owner 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. Owner further agrees that any damage to public property as a result of construction activity on the Property shall Page 10 be repaired within 14 days if not deemed to be an emergency by the City. 16. NON-INTERFERENCE WITH ADJOINING PROPERTIES. All work performed by Owner and Owner’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 Owner or Owner’s contractors and subcontractors interfere with other properties, right-of-ways, or easements. 17. OWNER’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 Owner 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. 18. OWNER'S RESPONSIBILITY FOR ITS CONTRACTORS: Owner 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 Owner or Owner's consultants, contractors, subcontractors, suppliers and agents. Owner shall not be released from its responsibilities to release, defend and indemnify because of any inspection, review or approval by City. 19. RESPONSIBILITY FOR COSTS. Except as otherwise specified herein, Owner 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 Page 11 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 Owner 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. Owner shall pay in full all bills submitted to it by the City, in accordance with this Agreement, within 30 days after receipt. 20. OWNER'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 Owner 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 Property; (2) failure by the Owner to construct the Owner Installed Improvements pursuant to the terms, conditions and limitations of this Agreement; (3) failure by the Owner 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 Owner’s Property without prior written approval by the City Council; (5) failure to correct any warranty deficiencies; (6) failure by the Owner 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 Owner to renew the Security at least thirty (30) days prior to its expiration date; (8) receipt by the City from the Owner’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 insurance, bonds or Security; (11) a breach of any provision of this Agreement; (12) if any representation made by Owner in this Agreement, is inaccurate, either when made or at a later date; (13) failure by Owner to pay its debts as they become due, the voluntary or involuntary filing of a petition in bankruptcy, an assignment by Owner for the benefit of its creditors, or the appointment of a receiver for (a) Owner; (b) all or any substantial portion of Owner’s assets; (c) the Page 12 Owner’s Property; or (14) if Owner 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 enforce performance and/or observance of any obligation, agreement or covenant of Owner under this Agreement. 4. The City may suspend issuance of building permits and/or certificates of occupancy on any of the Owner’s Property. 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 Owner’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 Owner’s 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 Page 13 of the Minnesota Statutes. Owner knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes Section 429.081. C. Notice. In a non-emergency, Owner shall first be given written notice of the Event of Default not less than 48 hours prior to City’s 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 20. 21. NOTICES. A. Required notices to the Owner shall be in writing, and shall be either hand delivered to the Owner, its employees or agents, or mailed to the Owner by certified mail at the following address: 17741 Fairlawn Avenue SE, Prior Lake, MN 55372 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, Hoff Barry, P.A., 775 Prairie Center Drive, Suite 160, Eden Prairie, MN 55344. 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 Owner, or the Event of Default that has occurred; (2) Page 14 what the Owner must do to cure the breach or remedy the Event of Default; and (3) the time the Owner has to cure the breach or remedy the Event of Default. 22. INDEMNIFICATION. Owner 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. 23. NO THIRD PARTY RECOURSE. The City and Owner agree that third parties shall have no recourse against the City under this Agreement. The Owner agrees that any party allegedly injured or aggrieved as a result of the City’s actions in relation to this Agreement shall seek recourse against the Owner or the Owner’s agents. In all such matters, including court actions, the Owner agrees that the indemnification and hold harmless provisions set out in Paragraph 22 shall apply to said actions. This Agreement is a contract agreement between the City and the Owner. 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. 24. INSURANCE REQUIREMENTS. Owner, 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 Owner Installed Improvements, a policy of insurance with limits for bodily injury, death and property damage of not less than $1,000,000.00 per occurence and $2,000,000.00 aggregate. 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 Page 15 30 days advance written notice before any modification, amendment or cancellation of the insurance becomes effective. 25. SIGNS. The Owner hereby waives any claim against the City for removal of signs placed in the right-of-way in violation of the City Code or State Statutes. The City shall not be responsible for any damage to, or loss of, signs removed. 26. MISCELLANEOUS. A. Compliance With Other Laws. The Owner represents to the City that the Owner 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 Owner is not in compliance, the City may, at its option, refuse to allow construction or Development Work on the Property until the Owner does comply. Upon the City's demand, the Owner shall cease work until there is compliance. B. Permits. The Owner shall obtain all necessary approvals, permits and licenses from the City, and any other regulatory agencies and the utility companies. All costs incurred to obtain said approvals, permits and licenses, and also all fines or penalties levied by any agency due to the failure of the Owner to obtain or comply with conditions of such approvals, permits and licenses, shall be paid by the Owner. C. 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. D. Amendments. There shall be no amendments to this Agreement unless in writing, signed by the parties and approved by resolution of the City Council. E. Waiver. Failure of the City to require performance of any provision of this Agreement shall not affect its right to require full performance of this Agreement at any time thereafter and the waiver by the Page 16 City of a breach of any such provision shall not be a waiver of any subsequent breach and shall not nullify the effectiveness of such provision. F. Assignment. The Owner may not assign this Agreement without the prior written approval of the City Council. The Owner's obligation hereunder shall continue in full force and effect even if the Owner sells Owner’s Property, or any part of it. G. 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. H. Successors and Assigns. Provisions of this Agreement shall be binding upon and enforceable against Owner’s successors and assigns including but not limited to all purchasers and owners of all or any part of the Owner’s Property and their successors and assigns. I. Performance Standards. The Owner’s Property shall be developed and operated in a manner meeting all applicable noise, vibration, dust and dirt, smoke, odor and glare laws and regulations. J. 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 17 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 18 FRIENDSHIP BAPTIST CHURCH By: ________________________________ Its: ________________________________ STATE OF MINNESOTA ) (ss. COUNTY OF __________ ) The foregoing instrument was acknowledged before me this ______ day of ____________, 2018, by ___________________________as______________________________ of Friendship Baptist Church, a Minnesota Corporation. _____________________________________ NOTARY PUBLIC DRAFTED BY: City of Prior Lake 4646 Dakota Street SE Prior Lake, Minnesota 55372 Page 19 EXHIBIT A TO UTILITY DEVELOPMENT AGREEMENT Legal Description of Owner’s Property: That part of the South 77 acres of the North one-half of the Southwest Quarter of Section 10, Township 114, Range 22, Scott County, Minnesota described as follows: Commencing at the intersection of a line drawn parallel to and distant 75.00 feet Southeasterly (as measured at right angles) of the centerline of State Trunk Highway No. 13, with the West line of said Section 10; thence Northeasterly along said parallel line a distance of 498.06 feet to the actual point of beginning of the land to be described; thence South 59 degrees, 21 minutes 36 seconds East a distance of 44.88 feet; thence South 00 degrees, 47 minutes, 54 seconds West a distance of 11.95 feet to its intersection with a line drawn parallel to and distant 125.00 feet Southeasterly (as measured at right angles) of said centerline of said Highway No. 13; thence South 57 degrees, 37 minutes, 24 seconds West along said parallel line a distance of 110.00 feet; thence South 00 degrees, 47 minutes, 54 seconds West a distance of 138.05 feet; thence North 57 degrees, 37 minutes 24 seconds East parallel to said centerline a distance of 110.00 feet; thence South 59 degrees, 21 minutes, 36 seconds East a distance of 118.65 feet; thence South 00 degrees, 47 minutes 54 seconds West a distance of 162.56 feet; thence North 88 degrees, 50 minutes, 24 seconds East a distance of 291.16 feet; thence North 00 degrees 47 minutes, 54 seconds East a distance of 250.00 feet; thence North 67 degrees, 56 minutes, 09 seconds East a distance of 107.03 feet; thence North 88 degrees, 50 minutes, 24 seconds East a distance of 387.49 feet to the East line of the Northwest Quarter of the Southwest Quarter of said Section 10; thence Southerly along said East line a distance of 808.51 feet to the Northeast corner of the South 240.00 feet (as measured at right angles) of said Northwest Quarter of the Southwest Quarter; thence Westerly parallel to the South line of said Northwest Quarter of the Southwest Quarter a distance of 50.00 feet; thence along a tangential curve concave to the South, having a radius of 561.35 feet, a delta angle of 10 degrees, 10 minutes, 48 seconds, an Arc length of 99. 74 feet; thence Southwesterly tangent to the last described curve a distance of 13.74 feet; thence along a tangential curve concave to the North, having a radius of 561.35 feet, a delta angle of 10 degrees, 10 minutes, 48 seconds, an Arc length of 99.74 feet to its intersection with the Easterly extension of the North line of Maple Drive according to the plat of Maple Knoll Second Addition, Scott County, Minnesota; thence Westerly along said Easterly extension a distance of 300.00 feet to the Southeast corner of Block 1, of said plat; thence Northerly along the East line of said Block 1, to the Northeast corner of said plat of Maple Knoll Second Addition; thence westerly along the North line of said plat and the North line of the plat of Maple Knoll to the West line of said Section 10; thence Northerly along said West line to its intersection with the Southeasterly right of way line of said Trunk Highway No. 13; thence Northeasterly along said Southeasterly right of way to the point of beginning. Page 20 EXHIBIT B TO UTILITY DEVELOPMENT AGREEMENT Fee Amt Per Total Administrative Fee 4% X $120,285.05 = $4,810.00 Construction Observation (Escrow) 10% X $120,285.05 = $12,026.00 Trunk Storm Water Acreage NA X = NA Trunk Water Acreage NA X = NA Trunk Sanitary Sewer Acreage NA X = NA Street Oversize Acreage NA X = NA Utility Connection $18,000 X 1 unit = $18,000.00 Total $34,836.00 Security Total Sanitary Sewer = $ 42,136.50 Water Main = $ 26,686.40 Streets/Sidewalks/Trails = $ 51,435.15 Subtotal = $120,258.05 Total (125% of subtotal) = $ 150,323.00 Page 21 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]