Loading...
4.5 SR 01-16-2024Request for Action To Item Number Ma Tor and CinT Council 4.5 Agenda Section Meeting Date Prepared by Consent January 16, 2024 Zack Carlton, Communit�r Development Director Item Description Reviewed by Development Agreement Lennar's Bradford Cal Pormer, Cit�r Administrator Park Reviewed by Action Requested Approve, byT motion, the Development Agreement for Bradford Park. Background/Discussion The Cit�T Council approved the final plat of the first phase of Bradford Park on November 6, 2023. The plat includes 82 single-family lots and is the first phase of a multi-addition subdivision. The conditions for the approval of the resolution for the Final Plat include a requirement that a Development Agreement be signed and recoYded. Staff have drafted the Development AgYeement outlining the costs, responsibilities, and required securinT in the form of a Letter of Credit and escro`v deposits and are seeking Council approval. The agreement also outlines the park dedication requirements included in the preliminaryT plat approvaL This first addition will not include land dedication for park uses, but the agreement recognizes that an area within the plat will be dedicated for park purposes `vith a future addition. The developeY and the cityr attorneyr have reviewed the document and Yecommend approval. Financial Impact None Mission/Policy/Goal OpportunityT to live, work, and p1ayT Responsibl�r grow Attachments ■ Development Agreement The Elk River Vision A 2a�elcolning co�nlnunity 2a�ith T evolutiona� y and spizzted T esou� cefulness, exceptional se�vice, and coln�nunity engagelnent that encou�ages and ins�iz•es pTo�pe�zty. rowEREo ar �I'1 ���� Up�iited.• August 2020 Development Agreement Bradford Park Final Plat approved by the Elk River City Council November 6, 2023 Development Agreement Januaryr 16, 2024 229031d2 Table of Contents 1. `�Jarranty of Developer ....................................................................................................................................... 1 2. Right to Proceed .................................................................................................................................................. 1 3. Development Plans .............................................................................................................................................. 2 4. Improvements ...................................................................................................................................................... 2 5. Additional Regulato�` APProvals ...................................................................................................................... 3 6. Installation of Improvements ............................................................................................................................ 3 7. City Installed Improvements .............................................................................................................................. 5 8. Fees and Security for Developer's Performanc .............................................................................................. 9. Responsibilin- for Costs ..................................................................................................................................... 10. General Provisions Binding Effect .................................................................................................................. 11. Park Dedication ................................................................................................................................................... 12. Development Plan .............................................................................................................................................. 13. Landscaping ......................................................................................................................................................... 14. Surface and Groundwater Management .......................................................................................................... 15. Default ................................................................................................................................................................. 5 7 7 .8 .9 .9 10 16. Issuance of Building and Occupance Permits ............................................................................................... 11 17. Model Homes ..................................................................................................................................................... 11 18. Miscellaneous ......................................................................................................................................................11 19. Notices .................................................................................................................................................................13 EXHIBIT A RESOLUTION NO. 23-43 EXHIBIT B LEGAL DESCRIPTION EXHIBIT C FINAL PLAT EXHIBIT D COST ESTIMATE FORl�7 EXHIBIT E DEVELOPMENT PLAN CHECKL,IST EXHIBIT F TITLE C01��IITTMENT EXHIBIT G PRELIMINARY PLAT EXHIBIT H SUNINIARY OF PAYMENTS DUE 229osi�2 DEVELOPMENT AGREEMENT FOR Bradford Park THIS AGREEMENT (the Agreement), made and entered into this 16th day of January 2024, by and between the CITY OF ELIs RIVER, a municipal corporation organized under the laws of the State of Minnesota (the City), and U.S. Home, LLC a Delaware limited liability company, (the Developer). WITNESSETH: ��1HEREAS, the De�=eloper 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 Cit�r Council adopted Resolution No. 23-43 on November 6, 2023, (attached as Exhibit B hereto) granting final plat approval to the Subdivisions, subject to several conditions, inclucling a condition that De�=eloper 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. Warrant� of Develo�er. Developer hereby warrants and represents to the City, as inducement to the Cin�'s entering into this Agreement, that Developer is owner of certain real property legally described in Exhibit B attached hereto consisting of 37.33 acres of unimproved land located in the City of Elk Ri�rer, Sherburne County, Minnesota. The Developer intends to improve and develop such property for single family residential uses, to be known as BRADFORD PARI� (the Development). The final plat is attached as Exhibit C. 2. Right to Proceed. Within the Subdivision, the Developer may not grade or otherwise disturb the earth, remove trees, unless authorized by a separate permit or letter; work to construct sewer lines, water lines, streets, utilities, public or private improvements, or any buildings may not proceed until all the following conditions have been satisfied: (1) this Agreement has been fully executed by 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 plats for the Subdivision have 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. 229031d2 3. Develo�ment Plans. The Subdivision shall be developed in accordance with the following plans (The Plans). The Plans shall not be attached to this Agreement. ��ith 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 — Landscape Plan Plan E— Storm water Management Plan detailing long term ownership, maintenance schedules and procedures for all stormwater facilities as required by the Cit�-'s MS4 permit Plan F— Development Plan required by Section 12 hereto 4. Im�rovements. In accordance with the application materials submitted by Developer, the preliminary and final plats of the Subdivision, the City Council Resolutions 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 appro�red grading and drainage plan and construction of retaining walls (Site Grading); (02) Streets, as required by the Cit�r, inclucling 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) Sanitary sewers and laterals, as required by the City, including all pipes, manholes, pumping stations, building services and other appurtenances (Sanitary Sewer Improvements) ; (06) Watermain and laterals, as required by the City and Elk River Municipal Utilities, including all necessary pipes, hydrants, valves, building services and other appurtenances (Watermain Improvements) ; (07) Landscaping, trees, seed, turf as required by City Ordinance and any additional landscape Improvements required by the City (Landscape Improvements). 2 229031d2 (08) Temporary and permanent erosion and sediment control measures as required by the City's MS4 permit and the 1�1PCA National Pollutant Discharge Elimination S��stem construction stormwater permit (Stormwater Management Improvements). (09) Survey 1�lonuments. Durable iron survey monuments shall be set, pursuant to Minnesota Statutes, Section 505.02, Subd. 1, witl�in 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. (10) Mailboxes, in a style and location approved by the City of E1k River Post Office, shall be pro�rided prior to occupancy of any unit. 5. Additional Regulator� A�rovals. All additional regulatory approvals required for construction of the Improvements or de�Telopment 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 e�sting road rights of ways. 6. Installation of Im�rovements. The Improvements will be installed at De�=eloper'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 b�� De�=elo�er. 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. 23-43, and to do so on or before October 31, 2024, 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 securit�- 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) Aooroval of Contractor. The City resen=es 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. 3 229031d2 (05) Su�ervision and Cit�- Services. Construction and installation plans and acti�rity 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 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 accurate record drawings can be produced and 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 Cit�- standards as a condition of Cit�- acceptance. In addition, the City may, at the City's discretion and at the Developer's expense, have one or more Cit�- inspectors and an independent testing firm 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 De�reloper'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. (B) Upon City Inspector observing unacceptable installation of improvements, the City shall notify the contractor or the developer to cease installation. The installation of the improvement shall not resume until agreement is reached between the City and the Developer on acceptable installation at the developers sole expense. (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, liabilit�- 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 liabilit�- 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 thirt�r (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.d�f file and .pdf formats, all prepared in accordance with City standards. All constructed �ublic utilities shall be field surve�ed after construction with all location, elevation, and data attributes information, deliverable to the Cin- in an a�nroved sub-foot accurate GIS/GPS format. (09) Cit�- Acce�tance. The Cit�- 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 seeded and stabilized and functioning 4 229031d2 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. (11) Faithful Performance of Construction Contracts. Develo�er will full� and faithfull�erform the installation and construction of the Im�rovements in accordance with the a�oro�?ed �lans and soecifications therefore and shall com�l� with all terms of anv and all contracts entered into b� the Develo�er for the installation and construction of all such Im�rovements, at no ex�ense to the Cin-. (12) Warrant�. Developer hereb� warranties the workmanshi� and materials res�ecting such Improvements for a�eriod of two (2� �-ears following the Cin-'s final acceptance of the Im�rovements and agrees to re�air or re�lace, as directed b�- the Cit� and at De�=elo�er's sole cost and ex�ense, an� work or materials that become defective, in the sole o�inion of the Cit� within said two (� `-ear �eriod e�ren though notice thereof be given b`- the Cit�- after said two (2� �-ear �eriod. (13) Deeds. The De�=eloper will convey to the City Outlots _ and _ by warranty deed, free and clear and anv encumbrances. . Cit� Installed Im�rovements. (01) The Subdivision will have no City installed Improvements. Fees and Securit� for Develo�er's Performance. (01) Cit� Administration and Construction Observation Fees. Developer shall reimburse the City for all the Cit�-'s costs and expenses incurred in the processing of the Subdi�=ision 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 equit�r to which the City shall become a party in reference to the De�=eloper's interest in the Development. Reimbursement shall be due and payable to the City within thirt�r (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 securit��. 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 Cit�� 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. Upon acceptance of all completed improvements, as required by this agreement, any remaining balance will be returned to the developer within 30 day s. 229osi�2 (02) Securit�� for Develo�ers 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 De�Teloper has filed with the Cit�- a cash deposit or an irrevocable and unconditional Letter of Credit acceptable to the City, in the amount �2,966,706.29. 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 Improvements, to complete on-site Landscape Improvements, and to mal�e payment of any amounts due hereunder. (B) The securit�- provided in accordance with the above may be released periodically upon receipt of an invoice identifying work completed to date. The amount released each period will equal the amount of work completed by the Developer by the date of submittal, 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 fift�r 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. (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 Cit�r 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 Cit�r 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 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 current amount (03) Maintenance Bond. The Developer shall �ost maintenance bonds in the �nount of twennr- five �ercent �25%) of final certified construction costs to secure the warrant�r in Section 6�12) hereof. The Cit�- shall retain ten percent �10%) of the securit�� �osted b�- the Developer until the maintenance bonds are furnished to the Cit�r or until the warrant�period ex�ires, whiche�Ter first occurs. The retainage mav be used to pa�- for warrann- work�grading, erosion control, and as built surve�� escrow. (04) Water A�=ailabilit�- Char�es. Developer shall pay the `�Jater Availabilin- Charge identified in the city's fee schedule at the time of Final Plat recording. The current amount is Thirty-One Thousand, Nine Hundred eighty and 00/100 dollars ($31,980.00), ($390 per lot). The balance of Water Availability Charges per unit shall be paid at the time of building permit, by the permit applicant. 229031d2 9. Res�onsibilit� for Costs. (01) Except as otherwise specified herein, the Developer shall pay all costs incurred by it or the Cit�r in conjunction with the development of the Subdivision, including but not limited to Soil and ��later 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 cit�- 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, d�unages, 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 attorney s' 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 Cit�- 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 Subdi�rision 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, Cit�r sewer connection charges, and builcling permit fees. 10. 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. (01) 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 whatsoe�=er the validity of the remainder of this Agreement. (02) `�Jaiver. Any ��aiver, 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. (03) Construction Times. All construction activities authorized by this agreement shall be confined to the following hours of operation: 229031d2 Monday - Friday 7:00 AM unti19:00 PM Saturday 8:00 AM unti15:00 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. (04) Street Construction. No street construction will be allowed after October 15 or prior to May 15 unless approved by the City Engineer. (05) Snow�lowing. 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. (06) Mailboxes. All mailboxes be clustered, and in a style and location acceptable to the City of Elk River. (07) Histor�r. 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. 11. Park Dedication. The approved preliminary plat includes 315 single-family homes, requiring a land dedication of 26.56 acres. The Developer will satisfy the park dedication requirements through a land dedication outlined in the approval of the preliminary plat, which approval requires dedication of a total of 27.37 acres of park land for the development. The proposed land dedication exceeds the required dedication by 0.81 acres and the overage will be credited to a future development on property immediately adjacent to and abutting the approved preliminary plat. _ acres of park land are required to be dedicated with this plat. However, the park dedication required for this plat shall be provided with a future phase of the development consistent with the requirements identified in the July 17, 2023, memo of the Community Development Director. Any future changes to the preliminary plat must include the dedication of _ acres of park land required for this plat. 12. Develo�ment 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 builcling permit within the Subdi�=ision. The De�=elopment Plan will identify, for each lot in the Subdivision those items noted on the checl�list 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. 13. Landsca�ing. Developer shall cause the homebuilder to install two over story (deciduous) trees in the boulevard of each Lot. 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. (02) In the event the landscaping, including trees and establishment of turf, is not complete at the time of Certificate of Occupancy, the Cin- 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 229031d2 landscaping improvement. The cash deposit shall be no less than �1,000.00. Upon 48 hour written notice to the Developer or current property owner; 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 propert�r or lot, and shall not be liable for trespass. The Cit�r 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) Dewatering. Due to the variable nature of groundwater levels and stormwater flows, it will be the De�=eloper'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 weflands 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 Cit�� 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 Cit�� 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 Cit��'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 Cinr may tal�e such action as it deems appropriate to control erosion. The City will endeavor to notify the Developer in ad�Tance of any proposed action, but failure of the Cit�- to do so will not affect the Developer's and City�'s rights or obligations hereunder. The City shall invoice the De�=eloper for corrective erosion control measures installed by the Cit�r. The Developer shall reimburse the Cit�- for any cost the City incurred for such work within thirty (30) days in accordance with Section 9 hereto, 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. `�Jithin 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, have been constructed on public easements or land owned by the Cit��. The "as constructed" plan shall include field verified elevations of the following: (a) cross sections of storm water treatment/infiltration 229031d2 basins; (b) location and elevations along all swales, wetlands, wetland mitigation areas if any, locations and dimensions of borrow areas/stockpiles, and installed "conser�ration area" posts; and (c) lot corner elevations and house pads, and all other items listed in the City Code. The Cit�� will withhold issuance of building permits until the approved certified grading plan is on file with the Cit�� 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 Cinr 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) C1ea�Uo. The Developer shall clean dirt, debris, trash, and other refuse from all streets and adjacent properties that has resulted from construction work by the De�=eloper, home builders, subcontractors, their agents or assigns, until all requirements of this agreement have been satisfied. 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 S�stem Rec�uirements. Prior to the commencement of any work, the Developer shall provide a signed Storm Water Pollution Prevention Plan for Cit�r 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) Munici�al Se�arate Storm Sewer S�-stem Rec�uirements. All stormwater management activities shall comply with the City MS4 permit. 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 Cit�- 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 gi�ren written notice of the work in default, not less than forty-eight (48) hours in advance. This Agreement is a license for the Cinr to act, and it shall not be necessary for the Cit�- to seek a Court order for permission to enter the land. When the Cit�- 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 De�=eloper, may declare all amounts to be paid by the Developer pursuant to this Agreement, , due and payable in full, with interest in accordance with Section 9 hereto. 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. 16. Issuance of Building and Occu�anc� Permits. (01) Building Permits. (A) After the recording of the Final Plat, the Planned Unit Development Agreement, and this Agreement, the city may issue building permits for Lots 1— 10, Block 6. Issuance of 10 229031d2 building permits will require documentation that all utilities have been installed, inspected, and approved in accordance with state and local standards. (B) 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 gas, electric, and large (public) utilities are installed and available for the individual parcel, and streets are paved throughout the subdivision with the first lift of pavement to the acceptance of the City Engineer. 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 pa�Ting) are completed, approved by the Cit�- Engineer and accepted by the City. Temporary certificates of occupancy may be issued for sites with model permits; howe�=er, such certificates will not allow the structure to be transferred to a new owner for the purpose of occupancy. (02) Notice to Homebuvers. 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 e�stence of this contract and the obligations and restrictions created herein prior to the completion of the sale. Further, Developer agrees to sa�=e 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. Model Homes. (01) The City will issue building permits for the construction of up to six (6) 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 occupanc5) for any building constructed on any lot or parcel in the Subdi�=ision 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; howe�rer, such certificates will not allow the structure to be transferred to a new owner for the purpose of occupancy. 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) Incor�oration b� Reference. The exhibits 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 Re�lacement This Agreement is in addition to andis not in replacement of the terms and conditions of the Petition for Public Improvements and �Xlaiver of Right to Public Hearing and Right to Object relating to the Subdivision executed by Developer. (04) Regulator�� Com�liance. 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 11 229031d2 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 Cit�- under this Agreement. (06) Breach. Breach of the terms of this Agreement by the De�=eloper shall be grounds for denial of building permits, including lots sold to third parties. (07) Severabilinr. 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) D�nage to Im�rovements. If builcling permits are issued prior to the acceptance of Improvements, the De�reloper 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 disturbed areas are seeded or stabilized 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 Cit�r'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 propert�- 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 propert�- 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 acquise public liabilit�r 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. L.imits 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. T`he 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, a�Tailable 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 e�sting may be exercised from time to time as often and in such order as may be deemed expedient by the Cit�� and shall not be a waiver of the right to exercise at any time thereafter any other right, power or remedy. 12 229031d2 (13) Assignment The Developer may not assign this Agreement without the written permission of the City Council. The De�reloper'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 E1k River Attn: City Administrator 13065 Orono Parkway Elk River, Minnesota 55330 If to the Developer at: U.S. Homes, LLC Attn: Joseph Jablonski 16305 36� Avenue N, Suite 600 Plymouth, MN 55446 �Ke�nain�ler of page intentionally l� blankJ [Signaturepage.r to follo�aJ 13 229031d2 IN `�1ITNESS 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 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 Cit�r Clerk, respectively, for the Cit�r of E1k River, Minnesota. Notary Public 14 229031d2 DEVELOPER: : STATE OF MINNESOTA ) ) ss. COUNTY OF ) Jon Aune Its: Vice President This instrument was acknowledged before me this day of , , by Jon Aune, Vice President of U.S. Home, LLC a Delaware limited liability company. Notary Public This instrument was drafted by: Cit�- of Ell� Ri�Ter 13065 Orono Parkway E1k River, MN 55330 15 229031d2 EXHIBIT A Resolution No. 23-43 A-1 229031d2 EXHIBIT B Legal Description r1ll that paYt of the South Ha1f of the NoYthwest QuarteY and that paYt of the NoYth Ha1f of the Southwest Quarter, all in Section 36, To�vnship 33 North, Range 26 West, Sherburne CountyT, Minnesota, described as follows: Beginning at the West Quarter corner of said Section 36; thence North 00 degrees 22 minutes 42 seconds West (assumed bearing) on the �vest line of said Northwest Quarter, 1329.37 feet to the northwest corner of the South Half of the North�vest Quarter of said Section 36; thence South 89 degYees 15 minutes 25 seconds East on the noYth line of said South Half of the NoYthwest QuaYter, 1485.35 feet; thence South 09 degrees 50 minutes 04 seconds East, 334.87 feet; thence South 33 degrees 40 minutes 54 seconds West, 641.03 feet; thence South 89 degYees 37 minutes 36 seconds West, 443.76 feet; thence South 00 degYees 22 minutes 24 seconds East, 518.90 feet; thence South 89 degrees 37 minutes 36 seconds West, 737.27 feet to a point on the west line of the Southwest Quarter of said Section 36; thence North 00 degrees 22 minutes 24 seconds West on said west line, 79.88 feet to the point of beginning. D-1 z29osi�a EXHIBIT C Final Plat of BRADFORD PARK D-2 229osi�2 EXHIBIT D Cost Estimate Forms D-3 z29osi�a 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. E�sting 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: debarl�ing or destroying fallen diseased trees prior to April 15, not lea�=ing roots exposed and avoiding mechanical damage on remaining trees. E-1 229031d2 EXHIBIT F Title Committment H-1 229031d2 EXHIBIT G Preliminary Plat of BRADFORD PARK I-1 229osi�2 EXHIBIT H Summary of Payments Due i$148,335.31 iCity Fees Escrow Deposit iSection 8(01) � i$31,980.00 �Xlater Availabiliry Charge iSection 8(04) L$180,315.31----------------------= Total------------------------------------------------------------------------------------------------------------�------------------------------� J-1 z29osi�a