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HomeMy WebLinkAbout05(E) - Consider Approval of a Major PUD Amendment for Jeffers Pond ReportCR 42 C o ve P oi n t Cir NWEnclaveCtNWStation Pl NWParksid eCt NW Par k view L n N W Shepherds Path NWJeffers PkwyNWS h o r e C r e s t Dr NWFo u n tainHills Dr NW 42 21 12 44 42 27 21 87 16 23 15 18 82 78 17 77 79 83 14 70 Jeffers Foundation - Lil Explorers Daycare Final Plat and Planned Unit Development Amendment X:\Planning\Location Map\Location Map Template\Location Map Template Two.aprx Subject Property LEGENDENGINEER/SURVEYORWETLANDSSTORMWATERLANDSCAPING PLANSite PlanLil Explorers Childcare CenterPrior Lake, MN202118C1LIGHTING PLAN2580 Christian Dr.Chaska, MN 55318612-418-6828LAND SURVEYING& ENGINEERINGSHEET INDEXJeremy Spaude21830 S. Diamond Lake Dr.Rogers, MN 55374612-501-1493LEGAL DESCRIPTIONPROPERTY OWNERPROPERTY INFORMATIONDEVELOPERTREE PRESERVATIONSEE THE PRELIMINARY PLAT FOR DETAILED LOT AND EASEMENT DIMENSIONS Grading, Drainage, andErosion Control PlanLEGENDGRADING NOTESLil Explorers Childcare CenterPrior Lake, MNC32580 Christian Dr.Chaska, MN 55318612-418-6828LAND SURVEYING& ENGINEERINGJeremy Spaude21830 S. Diamond Lake Dr.Rogers, MN 55374612-501-1493202118SECTION A-A Date Last Revised:Copyright Michael J. Thomas Architect, LLC. Allrights reserved.The architectural works depicted herein are thesole property of Michael J. Thomas Architect,LLC and may not be constructed or used withoutits expressed written permission. No permissionto modify or reproduce any of thesearchitectural works, including without limitationthe construction of any building, is expressed orshould be implied from delivery of preliminarydrawings or unsealed construction drawings.Permission to construct the buildings(s) depictedin sealed construction drawings is expresslyconditioned on the full and timely payment of allfees otherwise due to Michael J. ThomasArchitect, LLC and, in absence of any writtenagreement to the contrary, is limited to a one-time use on the site indicated on these plans.MJTProject No:File Name:21003 Lil X Prior Lake 06-18-21.plnDrawn By:02-08-21, 02-12-21, 03-03-21,03-08-21, 03-15-21, 03-19-21,03-20-21, 04-10-21, 06-18-2121003SignatureI hereby certify that this plan, specification, orreport was prepared by me or under my directsupervision and that I am a duly LicensedArchitect under the laws of the State ofMinnesota.23592Minnesota License No.:06-18-21Date Signed:A0.0aPhone 651-245-2346East Bethel, MN 550924918 S. Tri Oak Circle NEwww.michaeljthomasarchitect.comLil Explorers Childcare CenterNew BuildingNW Corner ofEdege Creek Avenue North & Fountain Hills DrivePrior Lake, MNSCALE INDICATED BASED UPON PRINTED 24" X 36" (ARCHITECTURAL D) SHEETArchitectural Supplemental Instruction (ASI) #1 06-18-21EDGE CREEK AVENUE NORTH (C.S.A.H. NO. 21)EDGE CREEK AVENUE NORTH (C.S.A.H. NO. 21)EDGE CREEK AVENUE NORTH (C.S.A.H. NO. 21)EDGE CREEK AVENUE NORTH (C.S.A.H. NO. 21)FOUNTAIN H ILLS DR IVE FOUNTAIN H ILLS DR IVE FOUNTAIN H ILLS DR IVE FOUNTAIN H ILLS DR IVE PREFINISHED METALFirestone Metal ProductsKynar finish"Matt Black"Roof fascias, soffits, dripcaps, and misc. break metallocations.ALUMINUM ENTRYDOORSClear Anodized FinishFIBERGLASS SHINGLESGAF Timberline HD ShinglesColor : “Charcoal”Fiberglass WindowsAnderson 100 Series FibrexColor: BlackManufactured StoneVeneerBoulder CreekMontana "Jasper" S4655-14Painted LP Siding6" Lap Siding &Cedarmill Panel with 3 1/2"Battens/ TrimEIFS/ Stucco FinishCustom ColorEIFS/ Stucco FinishCustom ColorEIFS/ Stucco FinishCustom Color Page 1 DEVELOPMENT AGREEMENT Jeffers Pond Tenth Addition PROJECT #21-000014 This Development Agreement (“Agreement”) is entered into this 7th day of September, 2021, by and between the City of Prior Lake, a Minnesota municipal corporation ("City"), and Lil Explorers Child Care (“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 child care facility on the Property; NOW, THEREFORE, in consideration of the City Council adopting Resolution No. ____________ (“Resolution”) for Final Plat approval for the construction of a child care facility 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 building permit and Developer shall not construct upon the Property in any manner, or begin the Development Work until all of the following Page 2 conditions have 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, deposits, fees and insurance have been received by the City, and 3) the City Engineer or his/her 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 Council 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 Council 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 SISU Land Surveying & Engineering 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 SISU Land Surveying & Engineering Inc.) Plan C -- Plans and Specifications for Developer Installed Public Improvements as stamped approved by the City Engineer or his/her designee (Prepared by SISU Land Surveying & Engineering 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”), and the direction of City Manager or his/her designee. All improvements and other work required by the Plans, the Developer Installed Public Improvements, and such other work as is required by this Agreement, the Resolution or the documents or 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 PUBLIC IMPROVEMENTS. A. The Developer shall install and pay for the public improvements identified in the Plans, hereinafter referred to as the “Developer Installed Public Improvements”, which may include but are not limited to: 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. All Develoepr Installed Public Improvements shall be dedicated or conveyed to the public, and shall be located within public property, right-of-way, or easement dedicated to the public. B. Developer shall complete all Developer Installed Public Improvements and obtain the City Council’s written acceptance of the Developer Installed Public Improvements no later than December 31, 2022. The final wear course on streets shall be installed by October 31st of the same year the base layer of Page 4 asphalt is installed. If the final wear course is not installed by the date required herein, no additional building permits shall be issued for the Property until the punch list is complete and the final wear course installed. All punch list items shall be completed before the final wear course is installed in order to allow for inspection. Any modifications to this section are to be proposed in writing and approved by the City Engineer C. Developer shall mark and label the GPS coordinates of the Developer Installed Public Improvements as the improvements are constructed. All of the following items must be marked and labeled and the data provided to the City in a form compatible with ArcGIS. · Watermain – bends, tees, valves, crosses, sleeves, services corps, curb stops, future stubs. · Sanitary sewer – manholes, service wyes, service stubs, cleanouts, future sanitary sewer stubs. · Storm Sewer – manholes, catchbasins, outlet structures, flared end sections, cleanouts, tile, valves. · Signs – all developer installed signs and type of sign. The City Council will not accept the Devleoper Installed Pubilc Improvements unless the GPS coordinates for all of the listed items are provided. If Developer fails to provide the required coordinates, Developer will be required to re-access the improvements, mark and label the GPS coordinates and then restore the improvements. D. As a condition of the City Council’s acceptance of the Developer Installed Public 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 Public Improvements and that the Developer Installed Public Improvements were built in accordance with this Agreement. E. Upon the City Council’s written acceptance, by City Council Resolution, of the Developer Installed Public Improvements, the Developer Installed Public Improvements shall automatically become property of the City without further notice or action. The Developer shall be responsible for all maintenance of the Developer Installed Public Improvements until written acceptance by the City Council. Page 5 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 Public Improvement. G. Private Improvements. In addition to the Developer Installed Public Improvements, the Developer shall install and pay for the following private improvements ________________________________________, all as identified in the Plans and all of which shall be located on private property. The private improvements shall be installed, maintained, operated, repaired and replaced by the Developer until such time as those obligations are transferred to the owners of the appropriate lots or to a home owners association. The City shall have no obligations in relation to the private improvements. 5. PROJECT TESTING. The Developer is responsible, at the Developer’s sole cost, to provide testing to certify that Developer Installed Public 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 or his/her designee 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 Public 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 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, b) location and elevations along all swales and ditches, and c) lot corners and house pads. The Developer shall also submit Page 6 a land tabulation certified by a registered engineer showing that all pads have been corrected in accordance with project specifications. B. The Developer shall 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 Public 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 Council. Any replacement work shall be so warranted for two years after its completion by Developer and acceptance by the City Council. Both the Developer Installed Public Improvement warranty period described in this paragraph and the landscape warranty period described in paragraph 20 below are hereinafter referred to as the “Warranty Period”. 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 or his/her designee’s requirements, and the individual building/grading plan for each specific lot, until the Page 7 later of: (i) such time as the City Council has accepted the Developer Installed Public Improvements in writing; or (ii) a certificate of occupancy has been issued for each specifc lot. 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 or his/her designee, 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 or his/her designee. The City Engineer or his/her designee 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. 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 Fountain Hills Drive NW. No construction traffic is permitted on other adjacent local streets. Page 8 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 said improvements have been inspected and determined by the City Engineer or his/her designee 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 Community Development Director, 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 or contractors shall provide construction observation during the installation of the Developer Installed Public Improvements in accordance with the PWDM. These services by the City shall include: A. Construction observation during installation of required Developer Installed Public 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 Public Improvements. 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. Page 9 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 Attorney), all of the following: (i) the property encompassing all Developer Installed Public Improvements, (ii) property necessary for all public and private connections and access to all Developer Installed Public Improvements, (iii) property for streets, sidewalks, and trails identified in the Plans; (iv) any property for park dedication, and (v) all other property interests, conveyance of which is required by this Agreement. B. The City Council shall vacate ____ (list any vacation of easements, roads etc.) _________________. C. Developer shall obtain the written approval of the City Attorney and the City Engineer or his/her desingee of the form of the conveyance documents and the location of all easements or fee title conveyances required by this Agreement. D. With respect to any interest in all portions of the Property which Developer is required, pursuant to this Agreement, to dedicate or convey to the City ("Dedicated Property"), Developer represents and warrants as follows now and at the time of dedication or conveyance: (i) that Developer has marketable fee title free and clear of all mortgages, liens, and other encumbrances to the Dedicated Property. Prior to final plat approval, Developer shall provide to the City a current title insurance policy insuring such a condition of title; (ii) that Developer has not used, employed, deposited, stored, disposed of, placed or otherwise allowed to come in or on the Dedicated Property, any hazardous substance, hazardous waste, pollutant, or contaminant, including, but not limited to, those defined in or pursuant to 42 U.S.C. § 9601, et. seq., or Minn. Stat., Sec. 115B.01, et. seq. (such substances, wastes, pollutants, and contaminants hereafter referred to as "Hazardous Substances"); (iii) that Developer has not allowed any other person to use, employ, deposit, store, dispose of, place or otherwise have, in or on the Property, any Hazardous Substances; and (iv) that to the best of its knowledge, Developer warrants that no previous Page 10 owner, operator or possessor of the Property deposited, stored, disposed of, placed or otherwise allowed in or on the Property any hazardous substances. E. Developer agrees to indemnify, defend and hold harmless City, its successors and assigns, against any and all loss, costs, damage and expense, including reasonable attorneys’ fees and costs, that the City incurs because of the breach of any of the above representations or warranties and/or resulting from or due to the release or threatened release of Hazardous Substances which were, or are claimed or alleged to have been, used, employed, deposited, stored, disposed of, placed, or otherwise located or allowed to be located, in or on the Dedicated Property by Developer, its employees, agents, contractors or representatives. 15. DEPOSITS/ESCROWS. A. Deposit for Legal Fees. Developer shall be responsible for all reasonable legal fees incurred by the City relating to revisions and amendments to and enforcement of this Agreement. Developer shall make a cash deposit with the City for legal fees incurred by the City. If the cash deposit is exhausted, the City Engineer or his/her designee may require that Developer submit additional funds to replenish the cash deposit. Alternatively, the City Engineer or his/her designee may invoice the Developer direclty for such costs and Developer shall pay all such invoices within ten (10) days of receipt. City may cease all work and review of the Development Work until the invoice is paid and/or the cash deposit is replenished. Any balance remaining in the cash deposit after the expiration of the Warranty Period shall be returned to the Developer. B. Construction Observation Deposit. Developer shall be responsible for all construction observation costs incurred by the City relating to this Agreement. Developer shall make a cash deposit with the City for construction observation. If the cash deposit is exhausted, the City Engineer or his/her designee may require that Developer submit additional funds to replenish the cash deposit. Alternatively, the City Engineer or his/her designee may invoice the Developer directly for such costs and Developer Page 11 shall pay all such invoices within ten (10) days of receipt. City may cease all work and review of the Development Work until the invoice is paid and/or the cash deposit is replenished. Any balance remaining in the cash deposit after the City Council’s final acceptance of the Developer Installed Public Improvements shall be returned to the Developer. 16. FEES AND CHARGES. Developer shall pay the fees and charges identified below, set forth in the City Fee Schedule and described in detail in Exhibit B prior to any work occurring on the Property. Fees and charges are nonrefundable. Such fees and charges 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 costs incurred. B. Park Dedication Fee. Prior to release of the final Plat, Developer shall pay cash park dedication fees for the Property as required by City Code in effect as of the date of the plat approval. C. Tree Preservation and Replacement. D. Trunk Storm Water Acreage Charge. E. Trunk Water Acreage Charge. F. Trunk Sewer Acreage Charge. G. Street Light Operational Costs. H. Chip Seal Fee. 17. MAINTENANCE OF PLATTED LOTS. Developer shall provide ongoing maintenance of all platted lots on the Property, 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 Page 12 as the City Council has accepted the Developer Installed Public Improvements in writing; or (ii) until each specific lot is sold. 18. OVERSIZING. Oversizing is the construction of a Developer Installed Public 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 or his/her designee determines that oversizing is required for sanitary sewer, water or storm drainage, 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 the following: a cost estimate by the City Engineer or his/her designee based on 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. If the City Engineer or his/her designee determines that oversizing is required for road improvements, Developer shall install such oversize improvements at Developer’s cost. 19. LANDSCAPING (Single-Family Residential). In accordance with the City Subdivision Code, each residential lot on the Property must have at least two (2) front yard trees. The City shall not issue a building permit for a lot until two (2) front yard trees are planted or retained and a cash escrow or letter of credit for the lot in question’s landscaping is provided to the City. The City shall not issue a certificate of occupancy for a lot until the front yard, boulevard, and side yards to the rear of every structure have been sodded, weather permitting. If the required landscaping is not installed, the City is granted a right of entry to enter upon the lot and install the landscaping using the escrowed funds or letter of credit. Upon satisfactory completion of the landscaping on the lot, the escrowed funds less any draw made by the City, shall be returned to the person who deposited the funds with the City. 20. LANDSCAPING. 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) Page 13 the planting of the tree; or (ii) the issuance of a certificate of occupancy to the lot upon which the tree is located. A tree replaced under this warranty shall be warranted an additional one (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 Engineer or his/her designee 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 Engineer or his/her designee. No tree plantings shall be placed within five (5) feet of a sanitary sewer, storm sewer, or water main line. All plantings permitted in public right-of-way/boulevard areas shall be placed a minimum four (4) feet behind the curb, be of deciduous species (no coniferous species), and be located outside of a fifty (50) foot sight triangle at street corners. 21. SECURITY. A. To guaranty compliance with the terms of this Agreement, Developer shall furnish the City an irrevocable letter of credit or other security deemed acceptable to the City Attorney and City Engineer or his/her designee (“Security”) in the following amounts: i. 125% of projected costs for the Developer Installed Public 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, and any other breakdown, is for establishing the amount of the Security not a restriction on the use of the Security. All Security held by the City may be used in any manner allowed by this Page 14 Agreement, to reimburse the City for any costs incurred related to this Agreement and the project, and/or to cure any breach of this Agreement. C. The Security shall be in the form attached hereto as Exhibit C or other form as approved by the City Attorney in writing and shall be from a bank approved by the City Attorney. The bank shall be authorized to do business in the State of Minnesota. The Security shall extend through completion, acceptance by the City Council and the Warranty Period of the Developer Installed Public Improvements. D. In the event that Developer 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 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 Engineer or his/her designee 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. The City shall at all times throughout construction and the Warranty Period maintain a minimum $50,000 or 10% of the Development Work for which Security was required, whiciever is greater. Page 15 22. CLEAN UP AND DAMAGE: A. Developer assumes full financial responsibility for any damage which may occur to public property including but not limited to streets, street sub- base, base, bituminous surface, curb, utility system including but not limited to water main, sanitary sewer or storm sewer when said damage occurs as a result of the activity which takes place during the development of the Property. Developer further agrees to pay all costs required to repair the streets, utility systems and other public property damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place on the Property. B. Developer shall clean the streets every day or as required by the City Engineer or his/her designee. 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 Engineer or his/her designee. 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 Engineer or his/her designee. 23. 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. 24. DEVELOPER’S RESPONSIBILITY FOR CODE VIOLATIONS: In the event of a violation of City Code relating to use of the Property during construction thereon or failure to fulfill an obligation imposed upon the Developer pursuant to this Agreement, City shall give 72 hour notice of such violation in order to allow a cure of such violation, provided however, City need not issue a building or Page 16 occupancy permit for construction or occupancy on the Property while such a violation is continuing, unless waived by the City Engineer or his/her designee. 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 his/her designee. 25. DEVELOPER'S RESPONSIBILITY FOR ITS CONTRACTORS: Developer shall release, defend and indemnify City, its elected and appointed officials, employees and agents from and against any and all claims, demands, lawsuits, complaints, loss, costs (including attorneys’ fees), damages and injunctions relating to any acts, failures to act, errors, omissions of Developer or Developer's consultants, contractors, subcontractors, suppliers and agents. Developer shall not be released from its responsibilities to release, defend and indemnify because of any inspection, review or approval by City. 26. RESPONSIBILITY FOR COSTS. Except as otherwise specified herein, Developer shall pay all costs incurred by it or the City in conjunction with the development of the Property, including, but not limited to, legal, planning, engineering, design, development, construction, clean up, repair, easement and land acquisition, and inspection expenses incurred in connection with (i) review, approval, denial, and implementation of zoning, CUP, platting, site and building plan, and any other reviews, approvals, or denials by the City and any other reviewing authority; (ii) the Developer Installed Public 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. 27. DEVELOPER'S DEFAULT. A. Definition. In the context of this Agreement, “Event of Default” shall include, but not be limited to, any one or more of the following events: (1) failure by the Developer to pay in a timely manner, all fees, charges, taxes, claims and liabilities, including but not limited to all real estate property taxes, utility Page 17 charges, and assessments with respect to the Property; (2) failure by the Developer to construct the Developer Installed Public 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 insurance, bonds or 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, through the City Manager, City Engineer, City Community Deveopment Director, City Attorney or any of their designees, 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. Page 18 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 Developer 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. The City may suspend the release of any escrowed dollars. 6. The City may use deposit or 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 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. Page 19 D. Election of Remedies. No remedy conferred in this Agreement is intended to be exclusive and each shall be cumulative and shall be in addition to every other remedy. The election of any one or more remedies shall not constitute a waiver of any other remedy. The City may, but is not obligated to, exercise any of the remedies referred to in this paragraph 27. 28. NOTICES. A. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, its employees or agents, or mailed to the Developer by United States mail at the following address: Lil Explorers 21830 South Diamond Lake Road, Saint Michael, MN 55376. Notices to the City shall be in writing and shall be either hand delivered to the City Manager, or mailed to the City by United States 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 Shana Conklin, Campbell Knutson P.A., Grand Oak Office Center I, 860 Blue Gentian Road, Suite 290, Eagan, MN 55121. 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. 29. INDEMNIFICATION. Developer shall indemnify, defend, and hold the City, its Council, agents, employees, attorneys and representatives harmless against and in respect of any and all claims, demands, actions, suits, proceedings, liens, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and attorneys’ fees, that the City incurs or suffers, Page 20 which arise out of, result from or relate to this Agreement or the Development Work. The responsibility to indemnify and hold harmless the City, its Council, agents, employees, attorneys and representatives does not extend to any willful or intentional misconduct on the part of any of these individuals. 30. NO THIRD PARTY RECOURSE. The City and Developer agree that third parties shall have no recourse against the City under this Agreement. The Developer agrees that any party allegedly injured or aggrieved as a result of the City Council’s approval of the final Plat shall seek recourse against the Developer or the Developer’s agents. In all such matters, including court actions, the Developer agrees that the indemnification and hold harmless provisions set out in paragraph 29 shall apply to said actions. This Agreement is a contract agreement between the City and the Developer. No provision of this Agreement inures to the benefit of any third person, including the public at large, so as to constitute any such person as a third-party beneficiary of the Agreement or of any one or more of the terms hereof, or otherwise give rise to any cause of action for any person not a party hereto. 31. INSURANCE REQUIREMENTS. Developer, at its sole cost and expense, shall take out and maintain or cause to be taken out and maintained, until the expiration of the Warranty Period, 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 30 days advance written notice before any modification, amendment or cancellation of the insurance becomes effective. 32. FINAL PLAT AND DEVELOPMENT AGREEMENT. The final Plat and Agreement shall be recorded with the Scott County Recorder or Registrar of Titles, as applicable within 90 days of approval by the City Council. The final plat shall be considered void if not recorded within the 90 days provided for herein unless a request for a time extension is submitted in writing and approved by the City Council prior to the expiration of the 90-day period. Page 21 33. RECONSIDERATION OR RESCISSION. If Developer fails to proceed in accordance with this Agreement within twenty-four (24) months of the date hereof, Developer, for itself, its successors, and assigns, shall not oppose the City’s reconsideration and rescission of all approvals issued in connection with this Agreement, thus restoring the status of the Property before the Agreement and all such approvals. 34. SIGNS. The Developer hereby waives any claim against the City for removal of signs placed in the right-of-way in violation of the City Code or State Statutes. The City shall not be responsible for any damage to, or loss of, signs removed. 35. MISCELLANEOUS. A. Compliance With Other Laws. The Developer represents to the City that the Plat and the Developer in performing all work under this Agreement shall comply with all county, metropolitan, state, and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City Engineer or his/her designee or the City Attorney determines that the Plat or Developer is not in compliance, the the City Engineer or his/her designee or the City Attorney may, at his/her option, refuse to allow construction or Development Work on the Property until the Developer does comply. Upon such demand, the Developer shall cease work until there is compliance. B. Permits. The Developer 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 Developer to obtain or comply with conditions of such approvals, permits and licenses, shall be paid by the Developer. 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. Page 22 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 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 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. 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 Developer’s 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. I. 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. 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 23 K. 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. 36. PLANNED UNIT DEVELOPMENT. The Property is being developed as a Planned Unit Development. The City Council has found that the proposed development of the Property is in compliance with City Code Section 1106. The Property shall be developed in compliance with Resolution No.___________ dated ____________, and the plans approved by that Resolution. 37. PARK DEDICATION. Prior to release of the final Plat, Developer shall dedicate to City _______ for park purposes in accordance with the terms of paragraph 14. Page 24 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 25 Lil Explorers Child Care By: ________________________________ Its: ________________________________ STATE OF MINNESOTA ) (ss. COUNTY OF __________ ) The foregoing instrument was acknowledged before me this ______ day of ____________, 20__, by _____________________________________ as _____________________________________________of Lil Explorers Child Care, on behalf of the coroporation. _____________________________________ NOTARY PUBLIC DRAFTED BY: City of Prior Lake 4646 Dakota Street SE Prior Lake, Minnesota 55372 Page 26 EXHIBIT A TO DEVELOPMENT AGREEMENT Page 27 EXHIBIT B TO DEVELOPMENT AGREEMENT Deposit/Escrow Amt Per Total Construction Observation Deposit 8% of Public Improvements or minimum $5,000 = $ 5,000.00 TOTAL Deposit/Escrow = $ 5,000.00 Fee Amt Per Total Administrative Fee 6% of Public Improvements = Previously Paid Park Dedication Fee $ 3,750.00 X 1 Unit = Previously Paid Trunk Sanitary Sewer Acreage $ 4,700.00 X 2.110 Acres = $ 9,917.00 Trunk Water Acreage $ 3,840.00 X 2.110Acres = $ 8,102.00 Trunk Storm Sewer Acreage $ 8,615.00 X 2.110 Acres = $ 18,178.00 Chip Seal Fee (Public Streets) $1.90 X Sq Yds = NA TOTAL Fee = $ 36,197.00 *$1,000 of administrative fee already paid, Park Dedication Paid with Jeffers Pind 1ST Addition Security Total Sanitary Sewer = NA Water Main = NA Storm Sewer = NA Streets/Sidewalks/Trails = NA Fish Point Street Construction = NA Subtotal (rounded) = NA TOTAL (125% of subtotal) = NA Oversizing Calculation Total NA = Fees/amounts due may be paid and/or credited against amounts owed. Page 28 EXHIBIT C TO DEVELOPMENT AGREEMENT 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]