4.6. SR 11-05-2018 EOty1� ,.,�� Request for Action
River
To Item Number
Mayor and City Council 4.6
Agenda Section Meeting Date Prepared by
Consent November 5, 2018 Chris Leeseber , Senior Planner
Item Description Reviewed by
Development Agreement: Monroe Estates Zack Carlton,Planning Manager
Reviewed by
Cal Portner, City Administrator
Action Requested
Approve,by motion, the Development Agreement for Monroe Estates.
Background/Discussion
The conditions imposed by the City Council for the approval of the resolution for the Final Plat of
Monroe Estates (P 18-14) include a requirement that a Development Agreement be signed. Staff and the
city attorney drafted a Development Agreement outlining these responsibilities, and are seeking Council
approval.
The agreement outlines the costs,responsibilities, and required security in the form of a Letter of Credit
and escrow deposits.
Financial Impact
None
Attachments
■ Development Agreement dated November 5, 2018
POWERED 6T
AR
Development Agreement
Monroe Estates
Final Plat approved by the Elk River City Council
October 15, 2018
November 5, 2018
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Table of Contents
1. Warranty of Developer ....................................................................................................................................... 1
2. Phased Development .......................................................................................................................................... 1
3. Right to Proceed .................................................................................................................................................. 2
4. Development Plans.............................................................................................................................................. 2
5. Improvements ...................................................................................................................................................... 2
6. Additional Regulatory Approvals ...................................................................................................................... 3
7. Installation of Improvements ............................................................................................................................ 4
8. City Installed Improvements .............................................................................................................................. 5
9. Security for Developer’s Performanc ............................................................................................................... 6
10. Responsibility for Costst ..................................................................................................................................... 7
11. General Provisions Binding Effect ................................................................................................................... 8
12. Park Dedication .................................................................................................................................................... 9
13. Development Plan ............................................................................................................................................... 9
14. Landscaping .......................................................................................................................................................... 9
15. Surface and Groundwater Management........................................................................................................... 9
16. Default ................................................................................................................................................................. 11
17. Issuance of Building and Occupance Permits ............................................................................................... 11
18. Model Homes ..................................................................................................................................................... 12
19. Miscellaneous ...................................................................................................................................................... 12
20. Notices ................................................................................................................................................................. 13
EXHIBIT A Resolution No. 18-58
EXHIBIT B Legal Description
EXHIBIT C Final Plat
EXHIBIT D Cost Estimate Form
EXHIBIT E Development Plan Checklist
EXHIBIT F Purposely Left Blank
EXHIBIT G Title Commitment
EXHIBIT H Summary of Payments Due
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DEVELOPMENT AGREEMENT
FOR
Monroe Estates
THIS AGREEMENT (the Agreement), made and entered into this 5th day of November, 2018, by
and between the CITY OF ELK RIVER, a municipal corporation organized under the laws of the State of
Minnesota (the City), and 121 Monroe, LLC (the Developer).
W I T N E S S E T H:
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. 18-58 on October 15, 2018, (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 40 acres of unimproved land located in the City of Elk River,
Sherburne County, Minnesota. The Developer intends to improve and develop such property for single
family residential uses, to be known as Monroe Estates (the Development). A copy of the final plat is
attached as EXHIBIT C.
2. Changes In Official Controls. For two (2) years from the date of this Agreement, no amendments
to the City’s Comprehensive Plan or official controls shall apply to or affect the use, development
density, lot size, lot layout or dedications of the Development unless required by state or federal law
or agreed to in writing by the City and the Developer. Thereafter, notwithstanding anything in this
Agreement to the contrary, to the full extent permitted by state law, the City may require compliance
with any amendments to the City’s Comprehensive Plan, official controls, platting or dedication
requirements enacted after the date of this Contract.
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. Development Plans. The Subdivision shall be developed in accordance with the following plans
(The Plans). The Plans shall 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
Plan G – Development and tree preservation plan required by Section 13 hereto
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) 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);
(04) Landscaping, trees and grass as required by City Ordinance and any additional landscape
Improvements required by the City (Landscape Improvements);
(05) Park and trails, as required by the City, including all park grading, removal of specified
vegetation, construction of trails, and installation of park and trail signs including Park boundary
markers (5-foot steel posts) at all lot corners that border park property or City owned outlots (Park
and Trail Improvements).
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(06) 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).
(07) 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.
(08) Mailboxes, in a style and location approved by the City of Elk River, shall be provided prior
to occupancy of any unit.
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 Improvements will be installed at Developer’s expense by
Developer as hereinafter provided.
(01) Developer shall construct and install at Developers sole expense all Improvements necessary
to fully complete the Development, 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. 18-58 and to do so on or before October 31, 2019 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
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inform the City’s representatives of the schedule to complete the Improvements as required in the
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. 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 shall
provide for on-site project management. 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 .dxf 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.
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(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.
(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 installation of
improvements, including 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 Development.
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 five percent (5%) 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 five percent (5%) 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) Security for Developers Performance.
(A) 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 (five-hundred and twelve thousand, and 00/100 Dollars ($512,000). 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
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Agreement, including Developer’s obligations to complete Improvements, to complete on-
site Landscape Improvements, and to make payment of any amounts due hereunder.
(B) The security provided in accordance with the above may be released 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 fifty thousand dollars ($50,000) 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 and to fulfill
the requirements of the Wetland Mitigation, if applicable.
(C) 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 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
(03) Warranty Period Security. To guarantee secure the warranty in Section 7 (12) the Developer shall
post maintenance bonds in the amount of twenty-five percent (25%) of final certified construction
costs or maintain the $50,000 Letter of Credit described in Section 9 (2). The City shall retain the
$50,000 Letter of Credit until bonds are furnished to the City or until the warranty period expires,
whichever first occurs. The retainage may be used to pay for warranty work, grading, erosion
control, and as built survey escrow.
(04) Grading, erosion control and as-built survey escrow. The Developer shall post a cash escrow of
$1,000.00 per lot to the City to guarantee compliance with the erosion control and grading
requirements and the submittal of an as-built certificate of survey. Prior to release of this escrow, an
as-built certificate of survey for single family lots must be submitted to verify that the final as-built
grades and elevations of the specific lot and all building setbacks are consistent with the approved
Plans for the development, and any amendments thereto as approved by the City Engineer, and that
all required property monuments are in place. If the final as-built surveys are not timely completed,
the City may enter the lot, perform the work, and apply the cash escrow toward the cost. Upon
satisfactory completion of the grading, erosion control and as-built survey, the escrow funds, without
interest, less any draw made by the City, shall be returned to the person who deposited the funds
with the City.
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(05) Surface Water Management Fee. Developer shall pay surface water management fees in the
amount of One Thousand, Nine Hundred Four and 00/100 dollars ($1,904.00), ($119.00 per lot) for
each lot in the Subdivision prior to release of the final plat for recording.
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
imposed on the city as a result of 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 of the 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”),
Municipal water connection charges, City sewer connection charges, and building permit fees.
11. General Provisions Binding 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.
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(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
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) Snowplowing. Until the Improvements are accepted by the City or an agreement expressly
reached in advance, the developer is responsible for snow removal and ensuring access by
Emergency Response equipment.
(07) Mailboxes. All mailboxes must be swing-way type approved by city.
(08) 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.
(09) 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 shall be paid for 16 lots in the amount of Twenty-Two
Thousand, Eight Hundred Fourteen and 88/100 dollars ($22,814.88), ($1,425.93 per lot).
13. Development Plan. A development plan “Development Plan” shall be submitted by Developer
and approved by the City Engineer or his designee prior to issuance of any building permit within the
Subdivision. The Development Plan will identify, for each lot in the Subdivision those items noted on the
checklist attached as Exhibit E to this Agreement. Approval of the Development Plan may be contingent
upon soil borings verifying elevations and compaction tests for proposed house pads.
14. Landscaping. Developer agrees to install one over story tree in the boulevard of each Lot, and
require one additional over story tree in the front yard of each Lot. For Lots not sold by April 30, 2019,
Developer agrees to install one tree in the front yard of all unsold lots. All required trees shall be 2 inches in
caliper.
(01) All residential landscaping requirements shall be completed prior to occupancy of the
dwelling unit, or by June 1 following occupancy if occupancy occurs October 15 through May 31.
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(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 cash deposit shall be no less than $1,000.00. 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.
15. Surface and Groundwater Management.
(01) Dewatering. 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
wetland approvals. The City shall receive a copy of the monitoring report annually for three years.
(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 and before the City approves individual
building permits (except up to three model home permits on lots acceptable to the Building Official
per section 18), 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,
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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
the City Code. The City will 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. The Developer certifies to the City that
all lots with house footings placed on fill have been monitored and constructed to meet or exceed
FHA/HUD 79G specifications. The soils observation and testing report, including referenced
development phases and lot descriptions, shall be submitted to the Building Official for review prior
to the issuance of building permits.
(05) Clean Up. 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.
16. 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 8 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.
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17. Issuance of Building and Occupancy Permits.
(01) Building Permits. The City will not issue any building permit (a permit issued for
construction of a structure to be sold and occupied by a new owner) for any lot or parcel in the
Subdivision until all small and large utilities are installed, streets are paved with the first lift of
pavement and vegetation is full established. 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 with model
permits; however, such certificates will not allow the structure to be transferred to a new owner for
the purpose of occupancy.
(02) Notice to Homebuyers. 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.
18. Model Homes.
(01) The City may issue building permits for the construction of up to three model homes on lots
approved by the Building Official 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.
19. 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
12
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) 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 portion of this Agreement.
(08) Damage to Improvements. If building permits are issued prior to the acceptance of
Improvements, the Developer assumes all liability and costs resulting in delays in completion of
public Improvements and damage to 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) 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 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.
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(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.
20. 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: 121 Monroe, LLC
Attn: William J. Christian
21000 Rogers Drive
Rogers, MN 55374
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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:
William J. Christian
Its: Chief Manager/President
15
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
A-1
EXHIBIT A
Resolution No. 18-58
B-1
EXHIBIT B
Legal Description
Lots 1, 2, and 3, Block 1;
Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13, Block 2;
Outlot A; All in MONROE ESTATES, Sherburne County, Minnesota
C-1
EXHIBIT C
Final Plat
D-1
EXHIBIT D
Construction Cost Form
E-1
EXHIBIT E
Development Plan Checklist
Development Plan Requirements
1. Lot and block numbers
2. Street Names
3. Storm sewer alignment with top and invert elevations. Also Flared ends with invert
elevations
4. Centerline Street elevations at 100 foot stations with high and low points
5. Centerline street percent grades
6. Cul-de-sac percent grade along curb
7. Building setback lines
8. Final Contours
9. All proposed driveway slopes
10. House pads with house style and elevations
11. Front and rear lot corner elevations
12. Spot elevations at the rear of the house pads if the drainage is to be directed around
the house pad to the front
13. Typical lot detail indicating where lot and house elevations are shown to.
14. Legend with type of house styles and grade difference for garage floor to walkouts or
lookouts.
15. Lot dimensions to the nearest foot
16. Typical street section
17. Drainage arrows at high points and major grade changes
18. Existing and proposed easements
19. Emergency overflows should be labeled and shown with spot elevations and
drainage arrows. Emergency overflows must be established for catch basins in the
street and in rear yards. Areas along rear lot lines which are below emergency
overflows elevations shall be designated as drainage easement on the final plat.
20. Wetland boundaries must be accurately shown
21. Development plan must be signed by a registered Land Surveyor or Engineer.
22. All trees within the subdivision that are to be preserved shall be fenced with a snow
fence at the drip line to prevent grading, compaction, or storage of equipment, debris
or materials. Staff shall inspect the fencing prior to grading. Cutting of trees between
April 15 and July 15 shall not be permitted. The Operator shall take other measures
deemed appropriate by the Sherburne County Forester to control oakwilt, such as,
but not limited to: debarking or destroying fallen diseased trees prior to April 15, not
leaving roots exposed and avoiding mechanical damage on remaining trees.
H-1
EXHIBIT F
Purposely left blank
I-1
EXHIBIT G
Title Commitment
J-1
EXHIBIT H
Summary of Payments Due
$25,600.00 City Fees escrow deposit Section 9 (01)
$16,000.00 Grading/ Erosion Control/As built escrow Section 9 (04)
$1,904.00 Surface Water Management Fee Section 9 (05)
$22,814.88 Park Dedication Section 12
$91,918.88 Total