4.15. SR 04-21-2014 City of
Elk=' Request for Action
River
To Item Number
Mayor and City Council 4.15
Agenda Section Meeting Date Prepared by
Consent Aril 21, 2014 Jeremy Barnhart,Deputy Director, CODD
Item Description Reviewed by
Jabez Second Addition Development Agreement Cal Portner, City Administrator
Reviewed by
Action Requested
Approve,by motion,the Development Agreement for the Jabez Second Addition.
Background/Discussion
The conditions imposed by the City Council on the approval of the Final Plat for Jabez Second addition
included a requirement that a development agreement be signed, outlining costs and responsibilities to
the satisfaction of the city attorney.
Staff and the attorney have drafted a development agreement outlining these responsibilities, and are
seeking Council approval. The developer has not signed the document.
The Development Agreement closely follows our standard agreement, and outlines requirements security
in the form of Letter of Credit and escrow deposits. The public street being constructed will be
maintained by the developer until the street connects to 170"'Lane,part of the Natures Edge Business
Center. This was done at the request of the developer so that a cul de sac did not need to be improved,
impacting the development of the buildable parcel.
The Agreement will allow for the construction of the building prior to completion of the street, although
a Certificate of Occupancy may not be issued.
Financial Impact
None
Attachments
■ Development Agreement
P a w E A E U a r
NaA f RE]
Development Agreement
Jabez Second Addition
Final Plat approved by the Elk River City Council
January 21, 2014
Development Agreement
April 21, 2014
Table of Contents
1. Warranty of Developer.......................................................................................................................................1
2. Phased Development..........................................................................................................................................1
3. Right to Proceed..................................................................................................................................................1
4. Approved Plans....................................................................................................................................................2
5. Improvements......................................................................................................................................................2
6. Additional Regulatory Approvals......................................................................................................................3
7. Installation of Improvements............................................................................................................................3
8. City Installed Improvements..............................................................................................................................5
9. Fees and Security for Developer's Performance.............................................................................................5
10. Responsibility for Costs......................................................................................................................................7
11. General Provisions...............................................................................................................................................8
12. Park Dedication....................................................................................................................................................9
13. Landscaping..........................................................................................................................................................9
14. Surface and Groundwater Management...........................................................................................................9
15. Default.................................................................................................................................................................11
16. Issuance of Building and Occupancy Permits...............................................................................................11
17. Model Homes.....................................................................................................................................................11
18. Miscellaneous......................................................................................................................................................11
19. Notices.................................................................................................................................................................13
EXHIBIT A Resolution No. 14-06
EXHIBIT B Legal Description
EXHIBIT C Final Plat
EXHIBIT D Cost Estimate Form
EXHIBIT F Reduced Copy of Landscape Plan
EXHIBIT I Consent of Mortgagee
EXHIBIT J Summary of Payments Due
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Development Agreement
for
Plat of Jabez Second Addition
THIS AGREEMENT (the Agreement), made and entered into this 21st day of April, by and
between the CITY OF ELK RIVER, a municipal corporation organized under the laws of the State of
Minnesota (the City),and (the Developer).
WITNESSETH:
WHEREAS, the Developer has made application to the City for approval of a final plat of land
within the City described on Exhibit A attached hereto (the Subdivision);and
WHEREAS, the City Council adopted Resolution No. 14-06 on January 21, 2014, (attached as
Exhibit A hereto) granting final plat approval to the Subdivision, subject to several conditions, including a
condition that Developer enter into an agreement with the City governing the provision of certain utilities,
services and facilities to the Subdivision and the transfer of certain land interests and payments to the City, so
as to fully comply with the Subdivision Ordinance;
NOW, THEREFORE, in consideration of the premises and the mutual promises and conditions
hereinafter contained,it is hereby agreed as follows:
1. Warranty of Developer. Developer hereby warrants and represents to the City, as inducement to
the City's entering into this Agreement, that Developer is owner of certain real property legally described in
EXHIBIT B attached hereto consisting of 7.18 acres of unimproved land located in the City of Elk River,
Sherburne County, Minnesota. The Developer intends to improve and develop such property for two lots
and a public street to be known as Jabez Second Addition (the Development). The Development is
sometimes hereinafter referred to as the "Property," "Project," or "Subdivision." A copy of the final plat is
attached as EXHIBIT C.
2. Phased Development.
PURPOSELY LEFT BLANK
3. Right to Proceed. Within the Subdivision, the Developer may not grade or otherwise disturb the
earth,remove trees,construct sewer lines,water lines, streets,utilities,public or private improvements, or any
buildings until all the following conditions have been satisfied: (1) this Agreement has been fully executed by
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both parties and filed with the City Clerk; (2) the necessary security has been received by the City; (3) the
necessary insurance for the Developer and its construction contractors has been received by the City; (4) the
final plat for the Subdivision has been filed with the office of the Sherburne County Recorder or Registrar of
Titles,and (5) all required permits are secured and a copy filed with the City Engineer.
4. Approved Plans. The Subdivision shall be developed in accordance with the following plans. The
plans may not be attached to this Agreement. With the exception of Plans A, B and E the plans may be
prepared, subject to the City Engineer's approval, after entering into this Agreement, but before
commencement of any work in the Development. The City Engineer may approve minor amendments to
Plan B without City Council approval. If the plans vary from the written terms of this Contract, the written
terms shall control.The plans are:
Plan A-Plat
Plan B-Final Grading,Drainage,and Erosion Control Plan&SWPPP
Plan C-Plans and Specifications for Public Improvements
Plan D -Street Lighting Plan
Plan E-Landscape Plan
Plan F — Storm water Management Plan detailing long term ownership, maintenance
schedules and procedures for all stormwater facilities as required by the City's MS4 permit
5. Improvements. In accordance with the application materials submitted by Developer, the
preliminary and final plats of the Subdivision, the City Council Resolution attached as Exhibit A hereto, and
the applicable standards and ordinances of the City, the following described Improvements (the
Improvements) shall be constructed and installed on the terms and conditions hereinafter contained:
(01) Site grading to elevations shown in the approved grading and drainage plan and construction
of retaining walls (Site Grading);
(02) Streets, as required by the City,including grading,graveling and stabilizing, constructing and
vegetating of berms, swales and boulevards, planting trees on boulevards, permanent street
surfacing with bituminous material,installing concrete curbs,gutters and driveway approaches,and
installing traffic control street signs as required the City Engineer and installing street lights as
required by the local utility(Street Improvements) ;
(03) Sidewalks,as required by the City(Sidewalk Improvements);
(04) Storm sewers, as required by the City, including all necessary pipes, manholes, catch basin,
ditches,inlets,retention areas and other appurtenances (Storm Sewer Improvements) ;
(05) Wetland mitigation measures as required by the U.S. Army Corps of Engineers, the
Department of Natural Resources and/or the Wetland Conservation Act (Wetland Mitigation);
(06) Landscaping, Trees and grass as required by City Ordinance and any additional landscape
Improvements required by the City(Landscape Improvements).
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(07) Temporary and permanent erosion and sediment control measures as required by the City's
MS4 permit and the MPCA National Pollutant Discharge Elimination System construction
stormwater permit(Stormwater Management Improvements).
(08) Survey Monuments. Durable iron survey monuments shall be set, pursuant to Minnesota
Statutes, Section 505.02, Subd. 1, within one (1) year after recording of the final plat of the
Subdivision. Developer shall provide in writing notice to the City a Surveyor's certification that all
monuments have been set.
6. Additional Regulatory Approvals. All additional regulatory approvals required for construction of
the Improvements or development of the Subdivision shall be obtained before commencement of
construction on the Improvements. Additional approvals may include but are not limited to the Department
of Health permits for water system modifications; Minnesota Pollution Control Agency permits for the
extension of sanitary sewer or cluster on-site treatment systems; National Pollutant Discharge Elimination
System permits for grading;Department of Natural Resources permits for water appropriations;Army Corps
of Engineers permits for construction of sedimentation ponds; and City, County and/or State permits for
access and work within existing road rights of ways.
7. Installation of Improvements. The following Improvements will be installed at Developer's
expense by Developer as hereinafter provided.
(01) Installation. Developer shall construct and install at Developers sole expense all
Improvements necessary to fully complete the development the subdivision, including those
Improvements identified in Exhibit D,attached hereto,except as may otherwise be set forth in this
Agreement. The installation of the Improvements shall be in accordance with all applicable City
ordinances, including the City subdivision ordinance, and shall be subject to review, approval,
inspection and authorization by the City and/or its specialty consulting staff, as provided in this
agreement.
(02) Deadline for Performance by Developer. Except as otherwise provided herein, Developer
agrees to complete all Improvements and perform all other acts as are required by the Subdivision
Ordinance, other applicable ordinances and the terms and conditions of this agreement, and
resolution No. 14-06 and to do so on or before occupancy, with the exception of the final wear
course of asphalt on streets. The final wear course on streets shall be installed between August 15
and October 15 the year following the base layer of asphalt construction. The Developer may,
however, request an extension of time from the City. If an extension is granted, it shall be
conditioned upon updating the security posted by the Developer to reflect cost increases and the
extended completion date. Final wear course placement outside of this time frame must have the
written approval of the City Engineer.
(03) Approval of Contractor. The City reserves the right to approve or disapprove any
contractor selected by the Developer.
(04) Construction Plans. The construction, installation, materials and equipment shall be in
accordance with plans and specifications prepared by a licensed professional engineer and
approved by the City Engineer. Such plans and specifications shall be based upon such
engineering surveys, including soil borings and material tests, determined to be necessary by the
City Engineer.
(05) Supervision and City Services. Construction and installation plans and activity shall be
reviewed by and subject to the supervision of the City. Developer will cause the contractor(s) to
inform the City's representatives of the schedule to complete the Improvements as required in the
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approvals. City shall inspect all Improvements during and after construction for compliance with
approved specifications. Developer will notify the City Engineer or his designee at such times
during construction as the City Engineer requires for inspection purposes.
(A) The Developer shall instruct its engineer to provide adequate field inspection
personnel to assure an acceptable level of quality control to the extent that the Developer's
engineer will be able to certify that the construction work meets the approved City standards
as a condition of City acceptance. The Developer's engineer shall provide for on-site project
management. In addition, the City may, at the City's discretion and at the Developer's
expense, have one or more City inspectors and a soil engineer inspect the work on a full or
part-time basis. The Developer, its contractors and subcontractors, shall follow all
instructions received from the City's inspectors. The Developer's engineer is responsible for
design changes and contract administration between the Developer and the Developer's
contractor. The Developer or its engineer shall schedule a pre-construction meeting at a
mutually agreeable time at the City with all parties concerned, including the City staff, to
review the program for the construction work.
(06) Easements. The Developer shall convey to the City,prior to the final approval of plans and
specifications and at no cost to the City, all permanent and temporary easements for the
installation and maintenance of all Improvements determined to be necessary by the City. All such
easements shall be in recordable form acceptable to the City and contain such terms and
conditions as the City may prescribe.
(07) Insurance. Developer shall cause each contractor engaged in the construction and
installation of any Improvement to furnish the City with evidence acceptable to the City showing
insurance coverage (including workers' compensation, liability and property damage) in such
amounts as are required for City construction contracts. Developer shall also maintain adequate
liability insurance for public use of Streets, Sidewalk and other Improvements until such time as
those Improvements are completed and accepted by City as provided herein, and shall hold the
City harmless and indemnify the City from any liability arising out of the public's use of said
Improvements until such time as those Improvements are completed and accepted by the City as
provided herein.
(08) As Constructed Plans. Within thirty(30) days after the completion of the improvements and
before the security is released, the Developer shall supply the City with a complete set of
reproducible "as constructed" plans and an electronic file of the "as constructed" plans in an
AutoCAD.DWG file or a .DYF file and PDF formats, all prepared in accordance with City
standards.All constructed public utilities shall be field surveyed after construction with all location,
elevation, and data attributes information, deliverable to the City in an approved sub-foot accurate
GIS/GPS format.
(09) City Acceptance. The City shall accept,at no cost, ownership of all Improvements provided
that such Improvements have been constructed in compliance with the plans and specifications
therefore and City requirements with respect thereto as determined by the City. No improvements
will be accepted prior to all disturbed areas of the site being fully vegetated and functioning in
accordance with the approved construction and storm water management plans. Upon acceptance,
all Improvements lying within the public easements or rights of way shall become City property
without further notice or action.
(10) License. The Developer hereby grants the City, its agents, employees, officers and
contractors a license to enter the Subdivision to perform all work and inspections deemed
appropriate by the City in conjunction with the Development.
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(11) Faithful Performance of Construction Contracts. Developer will fully and faithfully perform
the installation and construction of the Improvements in accordance with the approved plans and
specifications therefore and shall comply with all terms of any and all contracts entered into by the
Developer for the installation and construction of all such Improvements, at no expense to the
City.
(12) Warranty. Developer hereby warranties the workmanship and materials respecting such
Improvements for a period of two (2) years following the City's final acceptance of the
Improvements and agrees to repair or replace, as directed by the City, and at Developer's sole cost
and expense, any work or materials that become defective, in the sole opinion of the City, within
said two (2) year period even though notice thereof be given by the City after said two (2) year
period.
8. City Installed Improvements.
(01) The Subdivision will have no City installed Improvements.
(02) There are no assessments levied against the subdivision.
9. Fees and Security for Developer's Performance.
(01) City Administration and Construction Observation Fees. Developer shall reimburse the City
for all the City's costs and expenses incurred in the processing of the Subdivision and for review of
plans and construction observation and in regard to any action or event of default by Developer,
resulting in any suit or proceeding at law or in equity to which the City shall become a party in
reference to the Developer's interest in the property or the project. Reimbursement shall be due
and payable to the City within thirty (30) days following the receipt of a statement therefore. The
Developer shall post a cash escrow in the amount of ten percent (10%) of the estimated costs of
the Improvements. This escrow will be drawn from as the project progresses to cover the City's
ongoing costs and expenses relating to administration and construction observation of the
improvements. City administration will include, but is not limited to, supervision of construction
observation, consultation with Developer and its engineer on status or problems regarding the
project, coordination for final inspection and acceptance, project monitoring during the warranty
period,and processing of requests for reduction in security. Construction observation shall include
full to part time inspection of all work associated with the Improvements. Based on past
experience it is estimated that an escrow of ten percent (10%) shall be sufficient to cover the City
related expenses associated with the work. Delays,change in work scope,contractor performance,
etc. can all contribute to this amount not being sufficient. All City costs experienced in excess of
the escrow are the responsibility of the Developer. These costs will be billed directly to the
Developer and become due per the terms stated in Section 10.
(02) Letter of Credit. No work shall be commenced under this Agreement, and the Final Plat of
the Subdivision will not be released for recording,until the Developer has filed with the City a cash
deposit or an irrevocable and unconditional Letter of Credit acceptable to the City, in the amount
of sixty seven thousand, eight hundred eighty seven dollars and 20/100 Dollars ($67,887.20). Said
Letter of Credit shall also provide that funds shall be paid to the City upon written demand of the
City to the extent of default herein by Developer in the payment of any amount due or the
performance of any other duty or obligation of Developer pursuant to this Agreement, including
Developer's obligations to complete Developer Improvements, to complete on-site Landscape
Improvements,and to make payment of any amounts due hereunder.
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(A) The security provided in accordance with the above may be reduced quarterly, on
March 31,June 30,September 30 and December 31 of each year. The amount released each
quarter will equal the amount of work completed by the Developer during the quarter,
except that:
(i) the security will not be released to an amount less than the amount of
Developer's total indebtedness to the City pursuant to the terms of this Agreement,;
and,
(ii) the security will not be released below twenty-two thousand, four hundred
dollars ($22,400) until all Improvements pursuant to this Agreement have been
completed in full and all other obligations of Developer under this Agreement have
been fulfilled, including Developer's obligation to install required Landscaping
Improvements, two year warranty period has been completed, and to fulfill the
requirements of the Wetland Mitigation,if applicable.
(B) The Letter of Credit shall contain a provision that states that the Letter of Credit
shall be automatically renewable annually unless the issuer of the Letter of Credit first gives
the City thirty (30) days written notice by certified mail of its intent not to renew the Letter
of Credit. The letter of credit shall also contain a minimum initial period of 1 year. The
Letter of Credit shall be a guaranty to the City that the Improvements and all other
requirements set forth in this Agreement will be timely completed to the City's satisfaction.
The Letter of Credit shall be maintained continuously by the Developer, except as
reductions are authorized by the City, until the Improvements are completed to the City's
satisfaction, including certification by the City engineer that all items are satisfactorily
completed, pursuant to this Agreement. The Letter of Credit shall have no conditions and
shall be subject to being drawn upon by the City upon any default under this Agreement,
including failure to pay contractors, subcontractors or costs or expenses owed to the City. If
at any time the City shall draw upon the Letter of Credit,the Developer agrees that within 10
days upon being notified of such withdrawal by the City, Developer shall either pay the
deficient amount in cash to the City or have the Letter of Credit restored to its full amount
(04) Maintenance Bond. Purposely Left Blank
(05) Water Availability Charges. Developer shall pay applicable Water Availability Charge at the
time of building permit.
(06) Surface Water Management Fee. Developer shall pay surface water management fees in the
amount of Three thousand, six hundred and three dollars ($3,603.00), ($1,287 per acre) for each lot
in the Subdivision prior to release of the final plat for recording.
(07) Seal Coating. Developer shall pay the City for the first sealcoating of streets in the
Subdivision in the amount of One Thousand Seven Hundred-Fifty and 00/100 Dollars ($1,750) prior
to recording of the final plat.
10. Responsibility for Costs.
(01) Except as otherwise specified herein, the Developer shall pay all costs incurred by it or the
City in conjunction with the development of the Subdivision, including but not limited to Soil and
Water Conservation District charges, legal, planning, engineering and construction observation
inspection expenses incurred in connection with approval and acceptance of the plat,the preparation
of this Agreement, review of construction plans and documents, the payment of fines and penalties
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imposed on the city as a result with non-compliance with any permit or failure to obtain necessary
permits,and all costs and expenses incurred by the City in monitoring and inspecting development of
the Subdivision.
(02) The Developer shall hold the City and its officers, employees, and agents harmless from
claims made by itself and third parties for damages sustained or costs incurred resulting from plat
approval and development. The Developer shall indemnify the City and its officers, employees, and
agents for all costs, damages, or expenses which the City may pay or incur in consequence of such
claims,including attorneys' fees.
(03) The Developer shall reimburse the City for costs incurred in the enforcement of this
Agreement,including engineering and attorneys' fees.
(04) The Developer shall pay, or cause to be paid when due, and in any event before any penalty
is attached, all special assessments referred to in this Agreement. This is a personal obligation of the
Developer and shall continue in full force and effect even if the Developer sells one or more lots,the
entire plat,or any part of it.
(05) The Developer shall pay in full all bills submitted to it by the City for obligations incurred
under this Agreement within thirty (30) days after receipt. If the bills are not paid on time, the City
may halt development and construction within the Subdivision until the bills are paid in full.Bills not
paid within thirty(30) days shall accrue interest at the rate of eighteen percent(18%) per year.
(06) In addition to the charges and special assessments referred to herein, other charges and
special assessments may be imposed such as but not limited to sewer availability charges ("SAC"),
City water connection charges, City sewer connection charges,and building permit fees.
11. General ProvisionsBinding Effect. The terms and provisions hereof shall be binding upon, and
inure to the benefit of the heirs,representatives, successors and assigns of the parties hereto and shall
be binding upon all future owners of all or part of the Subdivision and shall be deemed covenants
running with the land. References herein to Developer, if there be more than one, shall mean each
and all of them. This Agreement shall be placed of record so as to give notice hereof to subsequent
purchasers and encumbrances of all or any part of the Subdivision,and all recording fees,if any, shall
be paid by the Developer.
(02) Severable. In the event that any portion of this Agreement shall be held invalid for any
reason, the same shall not affect in any respect whatsoever the validity of the remainder of this
Agreement.
(03) Waiver. Any waiver,whether express or implied, by any party of a breach of any provision
of this Agreement will not operate as or be construed to be a waiver of any subsequent breach of this
Agreement.
(04) Construction Times. All construction activities shall be confined to the following hours of
operation:
Monday-Friday 6:00 AM until 9:00 PM
Saturday 8:00 AM until 5:00 PM (only with 48 hour advance notice to the
City Engineer or their representatives)
Sunday Not Allowed
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This does not apply to activities that are required on a 24-hour basis such as dewatering, etc. Any
deviation from the above hours is subject to approval of the City Council.
(05) Street Construction. No street construction will be allowed after October 15 or prior to
May 15 unless approved by the City Engineer.
(06) History. Any item or condition found that indicates the site is likely to yield information
important to pre-history or history shall be reported to the city immediately,and the city reserves the
right in such event, to stop work immediately until the subdivision is appropriately investigated and
developer is authorized to recommence work.
(07) Covenants. Developer shall prepare and file restrictive covenants in a form acceptable to the
City Attorney. Restrictive covenants shall, at minimum, be recorded on the Wetland and the
Wetland Mitigation areas.
12. Park Dedication. Park dedication requirements shall be satisfied by paying a park dedication fee in
the amount of$20,843 ($7,444 per acre for 2.8 acres in the Subdivision) prior to release of the final plat for
recording.
13. Landscaping. Developer agrees to install landscaping materials in accordance with the Landscape
Plan,attached as Exhibit F.
(01) All residential landscaping requirements shall be completed prior to occupancy of the unit,
or by June 1 following occupancy if occupancy occurs October 15 through May 31.
(02) In the event the landscaping,including trees and establishment of turf,is not complete at the
time of Certificate of Occupancy, the City may issue a certificate of occupancy and require the
provision of a cash deposit from the builder of the lot to guarantee the successful completion of the
landscaping improvement. The City, its employees, agents or contractors shall have the right to go
upon the property to complete the landscaping without permission of the owner of the property or
lot, and shall not be liable for trespass. The City may also require a deposit as part of the building
permit fee to secure compliance with the landscaping requirements.
14. Surface and Groundwater Management.
(01) Dewaterin . Due to the variable nature of groundwater levels and stormwater flows, it will
be the Developer's and the Developer's contractors and subcontractors responsibility to satisfy
themselves with regard to the elevation of groundwater in the area and the level of effort needed to
perform dewatering and storm flow routing operations. All dewatering shall be in accordance with
all applicable county, state, and federal rules and regulations. DNR regulations regarding
appropriations permits shall also be strictly followed.
(02) Wetlands. If the Developer proposes the filling of wetlands in connection with development
of the Subdivision, final plat approval is contingent upon, and the final plat shall not be recorded
until, receipt of necessary permits from appropriate regulatory agencies to fill wetlands as proposed
by the Developer and approval by the Technical Evaluation Panel of the proposed mitigation plan
for wetlands filling. If these permits are denied, or approval of the wetland permit and mitigation
plan is subject to conditions which significantly impact the Subdivision, the final plat for the
Subdivision shall be resubmitted to the City Council for consideration of changes required for the
wedand approvals. The City shall receive a copy of the monitoring report annually for three years.
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(03) Erosion Control. Prior to initiating any work on the site, the erosion control plan, Plan B,
shall be implemented by the Developer and inspected and approved by the City or other regulating
authority. The City may impose additional erosion control requirements if they are deemed necessary
to protect the downstream waters of the state..All areas disturbed by the grading operations shall be
stabilized per the MPCA NPDES Stormwater Permit for Construction Activity and the City MS4
permit. Seed shall be in accordance with the City's current seeding specification which will include
temporary erosion control measures to provide ground cover as rapidly as possible. All seeded areas
shall be fertilized, mulched, and watered as necessary for seed retention and growth. The parties
recognize that time is of the essence in controlling erosion. If the Developer does not comply with
the MPCA NPDES Stormwater Permit for Construction Activity, the City MS4 permit, with the
erosion control plan and schedule, or supplementary instructions received from the City or other
regulating authority, the City may take such action as it deems appropriate to control erosion. The
City will endeavor to notify the Developer in advance of any proposed action,but failure of the City
to do so will not affect the Developer's and City's rights or obligations hereunder. If the Developer
does not reimburse the City for any cost the City incurred for such work within ten (10) days, the
City may draw down the letter of credit to pay any costs. No development, utility or street
construction will be allowed and no building permits will be issued unless the plat is in full
compliance with the approved erosion control plan.
(04) Grading. The Subdivision shall be graded in accordance with the approved grading
development and erosion control plan, Plan B. The plan shall conform to City specifications.
Within thirty (30) days after completion of the grading the Developer shall provide the City with an
"as constructed" grading plan certified by a registered land surveyor or engineer that all storm water
treatment/infiltration basins and swales, have been constructed on public easements or land owned
by the City. The "as constructed" plan shall include field verified elevations of the following:
(a) cross sections of storm water treatment/infiltration basins; (b) location and elevations along all
swales, wetlands, wetland mitigation areas if any, locations and dimensions of borrow
areas/stockpiles, and installed "conservation area" posts; and (c) lot corner elevations and house
pads, and all other items listed in City Code Section 30-416 (q) (1). The City may withhold issuance
of building permits until the approved certified grading plan is on file with the City and all erosion
control measures, including full vegetation of entire site, are in place as determined by the City
Engineer.
A certified as-built building pad survey must be submitted and approved for commercial, industrial
or institutional developments prior to issuance of a building permit.
(05) CleanUp. The Developer shall clean dirt and debris from all streets that has resulted from
construction work by the Developer,home builders, subcontractors, their agents or assigns. Prior to
any construction in the plat, the Developer shall identify in writing a responsible party and schedule
for erosion control, street cleaning,and street sweeping.
(06) National Pollutant Discharge Elimination System Requirements. Prior to the
commencement of any work, the Developer shall provide a signed Storm Water Pollution
Prevention Plan for City review and approval to control erosion from the site. Because the site is
over one (1) acre, the Developer shall also apply for and obtain an NPDES permit from the
Minnesota Pollution Control Agency.
(07) Municipal Separate Storm Sewer System Requirements. All stormwater management
activities shall comply with the City MS4 permit.
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15. Default.
(01) Remedies. In the event of default by the Developer as to any of the work to be performed
by it hereunder, the City may, at its option, perform the work and the Developer shall promptly
reimburse the City for any expense incurred by the City, provided the Developer, except in an
emergency as determined by the City, is first given notice of the work in default, not less than
forty-eight (48) hours in advance. 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 land. When the City
does any such work, the City may, in addition to its other remedies, assess the cost in whole or in
part.
(02) Acceleration on Default. In the event Developer, or its heirs, successors or assigns,violates
any of the covenants and agreements herein contained, or fails to pay any amount due to the city,
the City,at its option,in addition to its other rights and remedies,by written notice of default given
to the Developer, may declare all amounts to be paid by the Developer pursuant to this
Agreement, due and payable in full, with interest, immediately, or on such date as the City shall
specify in its notice of default to Developer. If Developer fails to make payment in the amount
and at the time specified in the City's notice of default to Developer, City may, at its option, draw
on the security provided by Developer pursuant to Section 9 of this Agreement and/or commence
legal action against Developer to collect the entire amount owed by Developer, including
reasonable attorneys' fees. Developer shall be personally liable for such amounts due and,if more
than one, such liability shall be joint and several.
16. Issuance of Building and Occupancy Permits.
(01) Building Permits. The City may issue building permits for the construction of the approved
car dealership prior to completion of the public and private infrastructure, provided that access to
the site for emergency vehicles is maintained at all times. City will not issue a certificate of
occupancy(said certificate will allow the structure to be transferred to a new owner for the purpose
of permanent occupancy) for any building constructed on any lot or parcel in the Subdivision until
all Improvements (except final lift of paving) are completed, approved by the City Engineer and
accepted by the City. Temporary certificates of occupancy may be issued for sites; however, such
certificates will not allow the structure to be transferred to a new owner for the purpose of
occupancy.
(02) Notice to buyer. If the Developer fails to comply with any of provisions of this Agreement,
the City may refuse to issue a building permit or certificate of occupancy for any lot or parcel in the
Subdivision. Developer agrees to advise purchasers of any lot or parcel within the Subdivision of
the existence of this contract and the obligations and restrictions created herein prior to the
completion of the sale. Further,Developer agrees to save and hold City harmless from any and all
claims or actions arising from the right to withhold the issuance of such permits and certificates
and from other provisions hereof.
17. Road Maintenance.
(01) Developer shall maintain the public road until the connection with 1701b Lane in Natures
Edge Business Park is completed. Maintenance shall include snowplowing, street sweeping,
repairs, and all other work necessary to ensure that the road is kept at city standards.
10
18. Miscellaneous.
(01) Filing of Final Plat and Developer Agreement. Before construction commences on the
Improvements, the Final Plat of the Subdivision and this Developer Agreement must be filed and
recorded and all necessary easements shall have been conveyed to the City, unless the City
authorizes in writing the commencement of limited construction activities.
(02) Incorporation by Reference. All plans, special provisions, proposals, specifications and
contracts for the Improvements to be made pursuant to this Agreement shall be and hereby are
made a part of this Agreement by reference as fully as if set forth herein in full.
(03) No Replacement. This Agreement is in addition to and is not in replacement of the terms
and conditions of the Petition for Public Improvements and Waiver of Right to Public Hearing
and Right to Object relating to the Subdivision executed by Developer.
(04) Regulatory Compliance. The Developer represents to the City that the Subdivision complies
with all city, county, metropolitan, state, and federal laws and regulations,including but not limited
to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City
determines that the plat does not comply, the City may, at its option, refuse to allow construction
or development work in the Subdivision until the Developer does comply. Upon the City's
demand,the Developer shall cease work until there is compliance.
(05) Third Parties. Third parties shall have no recourse against the City under this Agreement.
(06) Breach. Breach of the terms of this Agreement by the Developer shall be grounds for denial
of building permits,including lots sold to third parties.
(07) Severabili ty. 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 portion of this Agreement.
(08) Damage to Public Improvements. If building permits are issued prior to the acceptance of
public improvements,the Developer assumes all liability and costs resulting in delays in completion
of public improvements and damage to public improvements caused by the City, Developer, its
contractors, subcontractors,material men,employees,agents,or third parties. No sewer and water
connections or inspections may be conducted and no one may occupy a building for which a
building permit is issued on either a temporary or permanent basis until the streets needed for
access have been paved with a bituminous surface,the utilities are completed,and the vegetation is
established and accepted by the City Engineer.
(09) Amendments. The action or inaction of the City shall not constitute a waiver or amendment
to the provisions of this Agreement. To be binding, amendments or waivers shall be in writing,
signed by the parties and approved by written resolution of the City Council. The City's failure to
promptly take legal action to enforce this Agreement shall not be a waiver or release.
(10) Binding Contract. This Agreement shall run with the land and may be recorded against the
title to the property. The Developer covenants with the City, its successors and assigns, that the
Developer is well seized in fee title of the property being final platted and/or has obtained
consents to this Agreement, in the form attached hereto, from all parties who have an interest in
the property; that there are no unrecorded interests in the property being final platted; and that the
Developer will indemnify and hold the City harmless for any breach of the foregoing covenants.
11
(11) Insurance. The Developer and contractor shall acquire public liability and property damage
insurance covering personal injury, including death, and claims for property damage which may
arise out of the Developer's work or the work of their subcontractors or by one directly or
indirectly employed by any of them. The insurance must be maintained until six (6) months after
the City has accepted the public improvements. Limits for bodily injury and death shall be not less
than$500,000 for one person and$1,000,000 for each occurrence;limits for property damage shall
be not less than$200,000 for each occurrence;or a combination single limit policy of$1,000,000 or
more. The City shall be named as an additional insured on the policy on a primary and
noncontributory basis, and the Developer and contractor shall file with the City a certificate
evidencing coverage prior to the City signing the plat. The certificate shall provide that the City
must be given ten (10) days advance written notice of the cancellation of the insurance.
(12) No Waiver. Each right, power or remedy herein conferred upon the City is cumulative and
in addition to every other right, power or remedy, express or implied, now or hereafter arising,
available to City,at law or in equity,or under any other agreement,and each and every right,power
and remedy herein set forth or otherwise so existing may be exercised from time to time as often
and in such order as may be deemed expedient by the City and shall not be a waiver of the right to
exercise at any time thereafter any other right,power or remedy.
(13) Assignment. The Developer may not assign this Agreement without the written permission
of the City Council. The Developer's obligation hereunder shall continue in full force and effect
even if the Developer sells one or more lots,the entire plat,or any part of it.
19. Notices. All notices and demands specified herein shall be deemed appropriately and timely given
when delivered personally or deposited in the United States mail to the addresses hereinafter set forth by
certified mail (return receipt requested). The addresses of the parties hereto are as follows until changed by
written notice given as above:
If to the City at: City of Elk River
Attn: City Administrator
13065 Orono Parkway
Elk River,Minnesota 55330
If to the Developer at: Cornerstone Auto
Attn: Stephen Rohlf
17219 Highway 10
Elk River,MN 55330
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IN WITNESS WHEREOF,the City and Developer have caused this Agreement to be duly executed
on this day and year first above written.
CITY OF ELK RIVER
By:
John J.Dietz
Its: Mayor
By:
Tina Allard
Its: Clerk
DEVELOPER:
By:
Its:
13
STATE OF MINNESOTA )
) ss.
COUNTY OF SHERBURNE )
This instrument was acknowledged before me this day of , by
John J.Dietz and Tina Allard,the Mayor and City Clerk,respectively, for the City of Elk River,Minnesota.
Notary Public
STATE OF MINNESOTA )
ss.
COUNTY OF )
This instrument was acknowledged before me this day of , by
Notary Public
This instrument was drafted by:
City of Elk River
13065 Orono Parkway
Elk River,MN 55330
14
EXHIBIT A
Resolution No. 14-06
A-1
EXHIBIT B
Legal Description
Parcel A: The North 420.00 feet of the West 420.00 feet of the Southeast Quarter of the Northwest
Quarter of Section 11,Township 32,Range 26,according to the United States Government
Survey thereof, Sherburne County,Minnesota.
Parcel B: The North 368.04 feet of the Southwest Quarter of the Northwest Quarter of Section 11,
Township 32,Range 26,Sherburne County,Minnesota,lying Easterly of U.S. Highway No. 10,
according to the United States Government Survey thereof,Sherburne County,Minnesota.
Parcel C: The South 55.96 feet of the North 424.00 feet of the Southwest Quarter of the Northwest
Quarter of Section 11, Township 32, Range 26, Sherburne County, Minnesota, lying Easterly of
US Highway No. 10.
B-1
EXHIBIT C
Final Plat
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EXHIBIT D
Cost Estimate Form
E-1
EXHIBIT E
Purposely Left Blank
E-1
EXHIBIT F
Reduced Copy of Landscape Plan
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F-1
EXHIBIT I
I-1
EXHIBIT J
Summary of Payments and Securities Due
$ 6,788.72 City Fees escrow deposit Section 9. (02)
$67,887.20 Letter of Credit Section 9. (03)
$ 3,603.00 Surface Water Management Fee Section 9. (06)
$ 1,750.00 Seal Coating Section 9. (07)
$20,843 Park Dedication Section 12.
$26,296.00 Total
J-1