4.9 SR 12-02-2024The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional service, and community
engagement that encourages and inspires prosperity
Request for Action
To
City Council
Item Number
4.9
Meeting Date
December 2, 2024
Prepared By
Zack Carlton, Community Development Director
Item Description
Development Agreement Update: Bradford Park
Reviewed by
Cal Portner
Tina Allard
Action Requested
Approve, by motion, an update to the development agreement with Lennar, increasing the number of model
homes permitted by the city.
Background/Discussion
The first phase of Lennar's Bradford Park Subdivision has been under construction this summer. They have
made good progress thus far but have run into some issues that have delayed the completion of their public
improvements. These delays limit their ability to pull building permits to construct additional homes within the
development. Their development agreement with the city prohibits the city from issuing permits until all
public improvements have been installed.
Lennar has requested city approval of certain building permits to begin construction, notably, those without
required sidewalks. Staff reviewed their request and are comfortable treating these additional permits as
model homes, which allows the issuance of permits. However, a certificate of occupancy will not be approved
until all public improvements are completed. The proposed amendment increases the number of model
homes from 6 to 20.
The staff's recommendation of approval is not without concern. First, installing the sidewalk during the
construction of a home will impact the developers' ability to continue to work on the home. Driving
equipment on concrete not fully cured increases the likelihood of damaging the sidewalk. Staff have worked
with developers in the past to create a temporary bridge during the curing process, but these have typically
ended with damaged sidewalks and the developer replacing the impacted section. There should be zero traffic
across the sidewalks until they have fully cured, and approved by engineering staff.
Second, depending on the timing of the sidewalk work in the spring, the homes may be ready for sale before
sidewalk completion. Issuing the building permit under the model home standard prohibits the issuance of a
certificate of occupancy until all improvements, except the final lift of pavement, are installed and approved by
the city engineer. This scenario is not uncommon and the building department receives calls from prospective
buyers asking why the city will not issue the occupancy permit for their model home. Lennar's development
team will need to convey this standard to their sales team to ensure homes are not scheduled for closing
before full acceptance of all public improvements.
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Financial Impact
None
Mission/Policy/Goal
Meet changing needs - agile.
Support the growth and development of the community.
Attachments
1. Request for Building Permits
2. Development Agreement update 12-2-2024
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Request for Building Permits without Sidewalk Completion
Lennar is requesting the issuance of building permits for lots in Bradford Park 1st Addition so that we may continue to
build homes throughout the winter. The development agreement requires installation of sidewalks prior to permit
issuance. The roadways shown below in yellow have been paved and small utilities will be installed beginning at the end
of November.
Michels does not allow developers to schedule small utility installation prior to roads being paved. We paved the streets
on October 23, 2024 and
immediately called to
schedule small utility
installation. Michels’ first
crew availability was
November 18, 2024. With a
construction timeline of two
weeks that puts completion
at approximately December
2, 2024. Sidewalks cannot
be installed prior to
installation of small utilities
so unfortunately, due to
weather constraints, we will
not be able to install
sidewalks in 2024. We
commit to making sidewalk
installation a priority in the
Spring of 2025 as soon as
weather allows.
The snaphot on the
right is taken from the
Bradford Park address
map and illustrates in
yellow the addresses
Lennar may seek
building permits for
prior to sidewalk
installation.
Thanks,
Josh Metzer
Land Entitlement Mgr
Lennar
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229031v2
Development Agreement
Bradford Park
Final Plat approved by the Elk River City Council
November 6, 2023
Development Agreement
January 16, 2024
Updated
December 2, 2024
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Table of Contents
1. Warranty of Developer........................................................................................................................................1
2. Right to Proceed...................................................................................................................................................1
3. Development Plans..............................................................................................................................................2
4. Improvements.......................................................................................................................................................2
5. Additional Regulatory Approvals.......................................................................................................................3
6. Installation of Improvements.............................................................................................................................3
7. City Installed Improvements..............................................................................................................................5
8. Fees and Security for Developer’s Performanc...............................................................................................5
9. Responsibility for Costs.......................................................................................................................................7
10. General Provisions Binding Effect....................................................................................................................7
11. Park Dedication....................................................................................................................................................8
12. Development Plan................................................................................................................................................8
13. Landscaping...........................................................................................................................................................9
14. Surface and Groundwater Management...........................................................................................................9
15. Default.................................................................................................................................................................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 FORM
EXHIBIT E DEVELOPMENT PLAN CHECKLIST
EXHIBIT F TITLE COMMITTMENT
EXHIBIT G PRELIMINARY PLAT
EXHIBIT H SUMMARY OF PAYMENTS DUE
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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 ELK 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).
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. 23-43 on November 6, 2023, (attached as
Exhibit B hereto) granting final plat approval to the Subdivisions, 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 37.33 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 BRADFORD PARK (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.
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3. 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 – Landscape Plan
Plan E – 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 F – Development Plan required by Section 12 hereto
4. Improvements. 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 approved grading and drainage plan and construction
of retaining walls (Site Grading);
(02) Streets, as required by the City, including grading, graveling and stabilizing, constructing and
vegetating of berms, swales and boulevards, planting trees on boulevards, permanent street surfacing
with bituminous material, installing concrete curbs, gutters and driveway approaches, and installing
traffic control street signs as required the City Engineer and installing street lights as required by the
local utility (Street Improvements);
(03) Sidewalks, as required by the City (Sidewalk Improvements);
(04) Storm sewers, as required by the City, including all necessary pipes, manholes, catch basin,
ditches, inlets, retention areas and other appurtenances (Storm Sewer Improvements) ;
(05) 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).
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(08) 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).
(09) 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.
(10) Mailboxes, in a style and location approved by the City of Elk River Post Office, shall be
provided prior to occupancy of any unit.
5. 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.
6. 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. 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 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.
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(05) Supervision and City Services. Construction and installation plans and activity shall be
reviewed by and subject to the supervision of the City. Developer will cause the contractor(s) to inform
the City’s representatives of the schedule to complete the Improvements as required in the 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 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 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 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.
(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, 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 seeded and stabilized and functioning
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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. 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.
(13) Deeds. The Developer will convey to the City Outlots A and D by warranty deed, free and
clear and any encumbrances.
7. City Installed Improvements.
(01) The Subdivision will have no City installed Improvements.
8. 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. Upon acceptance of all completed improvements, as required by this agreement,
any remaining balance will be returned to the developer within 30 days.
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(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
$3,856,841.00. 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 make payment of any amounts due hereunder.
(B) The security 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 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.
(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 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 post maintenance bonds in the amount of twenty-
five percent (25%) of final certified construction costs to secure the warranty in Section 6 (12) hereof.
The City shall retain ten percent (10%) of the security posted by the Developer until the maintenance
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) Water Availability Charges. Developer shall pay the Water Availability 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.
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9. 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.
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 whatsoever the validity of the remainder of this Agreement.
(02) 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.
(03) Construction Times. All construction activities authorized by this agreement shall be confined
to the following hours of operation:
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Monday - Friday 7:00 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.
(04) Street Construction. No street construction will be allowed after October 15 or prior to
May 15 unless approved by the City Engineer.
(05) 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.
(06) Mailboxes. All mailboxes be clustered, and in a style and location acceptable to the City of
Elk River.
(07) 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.
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.
1.61 acres (26,551 square feet) 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. 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.
13. Landscaping. 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 City may issue a certificate of occupancy and require the
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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. 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 property or lot, and shall not be liable for trespass. The City may also require a deposit as part
of the building permit fee to secure compliance with the landscaping requirements.
14. Surface and Groundwater Management.
(01) 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. The City shall invoice the
Developer for corrective erosion control measures installed by the City. The Developer shall reimburse
the City 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. 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, have been
constructed on public easements or land owned by the City. The “as constructed” plan shall include
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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, debris, trash, and other refuse from all streets and
adjacent properties that has resulted from construction work by the Developer, 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 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.
15. Default.
(01) Remedies. In the event of default by the Developer as to any of the work to be performed by
it hereunder, the City may, at its option, perform the work and the Developer shall promptly reimburse
the City for any expense incurred by the City, provided the Developer, except in an emergency as
determined by the City, is first given written 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 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.
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16. Issuance of Building and Occupancy 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
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 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.
17. Model Homes.
(01) The City will issue building permits for the construction of up to twenty (20) 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.
18. Miscellaneous.
(01) Filing of Final Plat and Developer Agreement. Before construction commences on the
Improvements, the Final Plat of the Subdivision and this Developer Agreement must be filed and
recorded and all necessary easements shall have been conveyed to the City, unless the City authorizes
in writing the commencement of limited construction activities.
(02) Incorporation by Reference. 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.
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(03) No Replacement. This Agreement is in addition to and is not in replacement of the terms and
conditions of the Petition for Public Improvements and Waiver of Right to Public Hearing and Right
to Object relating to the Subdivision executed by Developer.
(04) Regulatory Compliance. The Developer represents to the City that the Subdivision complies
with all city, county, metropolitan, state, and federal laws and regulations, including but not limited to:
subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that
the plat does not comply, the City may, at its option, refuse to allow construction or development work
in the Subdivision until the Developer does comply. Upon the City’s demand, the Developer shall
cease work until there is compliance.
(05) Third Parties. Third parties shall have no recourse against the City under this Agreement.
(06) Breach. Breach of the terms of this Agreement by the Developer shall be grounds for denial
of building permits, including lots sold to third parties.
(07) 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 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 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.
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(12) No Waiver. Each right, power or remedy herein conferred upon the City is cumulative and in
addition to every other right, power or remedy, express or implied, now or hereafter arising, available
to City, at law or in equity, or under any other agreement, and each and every right, power and remedy
herein set forth or otherwise so existing may be exercised from time to time as often and in such order
as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time
thereafter any other right, power or remedy.
(13) Assignment. The Developer may not assign this Agreement without the written permission
of the City Council. The Developer’s obligation hereunder shall continue in full force and effect even
if the Developer sells one or more lots, the entire plat, or any part of it.
19. Notices. All notices and demands specified herein shall be deemed appropriately and timely
given when delivered personally or deposited in the United States mail to the addresses hereinafter set
forth by certified mail (return receipt requested). The addresses of the parties hereto are as follows until
changed by written notice given as above:
If to the City at: City of Elk River
Attn: City Administrator
13065 Orono Parkway
Elk River, Minnesota 55330
If to the Developer at: U.S. Homes, LLC
Attn: Joseph Jablonski
16305 36th Avenue N, Suite 600
Plymouth, MN 55446
[Remainder of page intentionally left blank]
[Signature pages to follow]
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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
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
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DEVELOPER:
By:
Jon Aune
Its: Vice President
STATE OF MINNESOTA )
) ss.
COUNTY OF ____________ )
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:
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
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EXHIBIT A
Resolution No. 23-43
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EXHIBIT B
Legal Description
All that part of the South Half of the Northwest Quarter and that part of the North Half of the
Southwest Quarter, all in Section 36, Township 33 North, Range 26 West, Sherburne County,
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 west line of said Northwest Quarter, 1329.37 feet to the
northwest corner of the South Half of the Northwest Quarter of said Section 36; thence South 89
degrees 15 minutes 25 seconds East on the north line of said South Half of the Northwest Quarter,
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 degrees 37 minutes 36 seconds
West, 443.76 feet; thence South 00 degrees 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.
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EXHIBIT C
Final Plat of BRADFORD PARK
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EXHIBIT D
Cost Estimate Forms
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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.
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EXHIBIT F
Title Committment
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EXHIBIT G
Preliminary Plat of BRADFORD PARK
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EXHIBIT H
Summary of Payments Due
$148,335.31 City Fees Escrow Deposit Section 8 (01)
$31,980.00 Water Availability Charge Section 8 (04)
$180,315.31 Total
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