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HomeMy WebLinkAboutItem 06.j• • • ☐☐ 2 1 196589v4 (reserved for recording information) DEVELOPMENT CONTRACT (Developer Installed Improvements) BERRES RIDGE 4TH ADDITION CONTRACT dated ____________________, 2018, by and between the CITY OF LAKEVILLE, a Minnesota municipal corporation (“City”), and BERRES RIDGE DEV. CO., LLC, A Minnesota limited liability company (the “Developer”). 1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a plat for Berres Ridge 4th Addition (referred to in this Contract as the "plat"). The land is situated in the County of Dakota, State of Minnesota, and is legally described as: OUTLOTS F AND G, BERRES RIDGE 2ND ADDITION, DAKOTA COUNTY, MINNESOTA. 2. CONDITIONS OF PLAT APPROVAL. The City hereby approves the plat on condition that the Developer enter into this Contract, furnish the security required by it, and record the plat with the County Recorder or Registrar of Titles within 100 days after the City Council approves the final plat. 3. RIGHT TO PROCEED. Within the plat or land to be platted, the Developer may not grade or otherwise disturb the earth or remove trees, unless a grading permit has been approved by the City Engineer following approval of a preliminary plat by the City Council, construct sewer lines, water lines, streets, utilities, 2 196589v4 public or private improvements, or any buildings 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, and 4) the plat has been filed with the Dakota County Recorder or Registrar of Titles’ office. 4. PHASED DEVELOPMENT. If the plat is a phase of a multi-phased preliminary plat, the City may refuse to approve final plats of subsequent phases if the Developer has breached this Contract and the breach has not been remedied. Development of subsequent phases may not proceed until Development Contracts for such phases are approved by the City. Park dedication charges referred to in this Contract are not being imposed on outlots, if any, in the plat that are designated in an approved preliminary plat for future subdivision into lots and blocks. Such charges will be calculated and imposed when the outlots are final platted into lots and blocks. 5. PRELIMINARY PLAT STATUS. If the plat is a phase of a multi-phased preliminary plat, the preliminary plat approval for all phases not final platted shall lapse and be void unless final platted into lots and blocks, not outlots, within six (6) years after preliminary plat approval. 6. CHANGES IN OFFICIAL CONTROLS. For two (2) years from the date of this Contract, no amendments to the City’s Comprehensive Plan, except an amendment placing the plat in the current metropolitan urban service area, or official controls shall apply to or affect the use, development density, lot size, lot layout or dedications of the approved plat unless required by state or federal law or agreed to in writing by the City and the Developer. Thereafter, notwithstanding anything in this Contract to the contrary, to the full extent permitted by state law, the City may require compliance with any amendments to the City’s Comprehensive Plan, official controls, platting or dedication requirements enacted after the date of this Contract. 7. DEVELOPMENT PLANS. The plat shall be developed in accordance with the following plans. The plans shall not be attached to this Contract. With the exception of Plans A, B, C, and F the plans may be prepared, subject to the City Engineer’s approval, after entering the Contract, but before 3 196589v4 commencement of any work in the plat. The City Engineer may approve minor amendments to Plan B without City Council approval. The erosion control plan may also be approved by the Dakota County Soil and Water Conservation District. 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 Plan C - Tree Preservation Plan Plan D - Plans and Specifications for Public Improvements Plan E - Street Lighting Plan Plan F - Landscape Plan 8. IMPROVEMENTS. The Developer shall install and pay for the following: A. Sanitary Sewer System B. Water System C. Storm Sewer System D. Streets E. Concrete Curb and Gutter F. Street Lights G. Site Grading, Stormwater Treatment/Infiltration Basins, and Erosion Control H. Underground Utilities I. Setting of Iron Monuments J. Surveying and Staking K. Sidewalks and Trails L. Retaining Walls The improvements shall be installed in accordance with the City subdivision ordinance; City standard specifications for utility and street construction; and any other ordinances including Section 11-16-7 of the City Code concerning erosion and drainage and Section 4-1-4-2 prohibiting grading, construction activity, 4 196589v4 and the use of power equipment between the hours of 10 o’clock p.m. and 7 o’clock a.m. The Developer shall submit plans and specifications which have been prepared by a competent registered professional engineer to the City for approval by the City Engineer. The Developer shall instruct its engineer to provide adequate field inspection personnel to assure an acceptable level of quality control to the extent that the Developer’s engineer will be able to certify that the construction work meets the approved City standards as a condition of City acceptance. In addition, the City may, at the City’s discretion and at the Developer’s expense, have one or more City inspectors and a soil engineer inspect the work on a full or part-time basis. The Developer, its contractors and subcontractors, shall follow all instructions received from the City’s inspectors. The Developer’s engineer shall provide for on-site project management. The Developer’s engineer is responsible for design changes and contract administration between the Developer and the Developer’s contractor. The Developer or its engineer shall schedule a pre-construction meeting at a mutually agreeable time at the City with all parties concerned, including the City staff, to review the program for the construction work. 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, all prepared in accordance with City standards. In accordance with Minnesota Statutes 505.021, the final placement of iron monuments for all lot corners must be completed before the applicable security is released. The Developer’s surveyor shall also submit a written notice to the City certifying that the monuments have been installed following site grading, utility and street construction. 9. CONTRACTORS/SUBCONTRACTORS. City Council members, City employees, and City Planning Commission members, and corporations, partnerships, and other entities in which such individuals have greater than a 25% ownership interest or in which they are an officer or director may not act as contractors or subcontractors for the public improvements identified in Paragraph 8 above. 10. PERMITS. The Developer shall obtain or require its contractors and subcontractors to obtain all necessary permits, which may include: 5 196589v4 A. Dakota County for County Road Access and Work in County Rights-of-Way B. MnDot for State Highway Access C. MnDot for Work in Right-of -Way D. Minnesota Department of Health for Watermains E. MPCA NPDES Permit for Construction Activity F. MPCA for Sanitary Sewer and Hazardous Material Removal and Disposal G. DNR for Dewatering H. City of Lakeville for Building Permits I. MCES for Sanitary Sewer Connections J. City of Lakeville for Retaining Walls 11. 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. 12. TIME OF PERFORMANCE. The Developer shall install all required public improvements by November 30, 2019, with the exception of the final wear course of asphalt on streets. The final wear course on streets shall be installed between August 15th and October 15th the first summer after the base layer of asphalt has been in place one freeze thaw cycle. 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. 13. LICENSE. The Developer hereby grants the City, its agents, employees, officers and contractors a license to enter the plat to perform all work and inspections deemed appropriate by the City in conjunction with plat development. 14. EROSION CONTROL. Prior to initiating site grading, the erosion control plan, Plan B, shall be implemented by the Developer and inspected and approved by the City or Dakota County Soil and Water 6 196589v4 Conservation District. The City or Dakota County Soil and Water Conservation District may impose additional erosion control requirements if they would be beneficial. All areas disturbed by the grading operations shall be stabilized per the MPCA Stormwater Permit for Construction Activity. Seed shall be in accordance with the City’s current seeding specification which may include temporary seed to provide ground cover as rapidly as possible. All seeded areas shall be fertilized, mulched, and disc anchored as necessary for seed retention. The parties recognize that time is of the essence in controlling erosion. If the Developer does not comply with the MPCA Stormwater Permit for Construction Activity or with the erosion control plan and schedule or supplementary instructions received from the City or the Dakota County Soil and Water Conservation District, the City may take such action as it deems appropriate to control erosion. The City will endeavor to notify the Developer in advance of any proposed action, but failure of the City to do so will not affect the Developer’s and City’s rights or obligations hereunder. If the Developer does not reimburse the City for any cost the City incurred for such work within ten (10) days, the City may draw down the letter of credit to pay any costs. No development, utility or street construction will be allowed and no building permits will be issued unless the plat is in full compliance with the approved erosion control plan. 15. GRADING. The plat shall be graded in accordance with the approved grading development and erosion control plan, Plan “B”. The plan shall conform to City of Lakeville specifications. Within thirty (30) days after completion of the grading and before the City approves individual building permits (except two (2) model home permits on lots acceptable to the Building Official), the Developer shall provide the City with an “as constructed” grading plan certified by a registered land surveyor or engineer that all storm water treatment/infiltration basins and swales, have been constructed on public easements or land owned by the City. The “as constructed” plan shall include field verified elevations of the following: a) cross sections of storm water treatment/infiltration basins; b) location and elevations along all swales, wetlands, wetland mitigation areas if any, locations and dimensions of borrow areas/stockpiles, and installed “conservation area” posts; and c) lot corner elevations and house pads, and all other items listed in City Code Section 10- 3-5.NN. 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 are in place as determined by the City Engineer. The 7 196589v4 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. Before a building permit is issued, a cash escrow of $1,000.00 per lot shall be furnished to the City to guarantee compliance with the erosion control and grading requirements and the submittal of an as-built certificate of survey. Prior to the release of the required individual lot grading and erosion control security that is submitted with the building permit, an as-built certificate of survey for single family lots must be submitted to verify that the final as-built grades and elevations of the specific lot and all building setbacks are consistent with the approved grading plan for the development, and amendments thereto as approved by the City Engineer, and that all required property monuments are in place. If the final grading, erosion control and as-built survey is not timely completed, the City may enter the lot, perform the work, and apply the cash escrow toward the cost. Upon satisfactory completion of the grading, erosion control and as-built survey, the escrow funds, without interest, less any draw made by the City, shall be returned to the person who deposited the funds with the City. A certified as-built building pad survey must be submitted and approved for commercial, industrial or institutional developments prior to issuance of a building permit. 16. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from construction work by the Developer, home builders, subcontractors, their agents or assigns. Prior to any construction in the plat, the Developer shall identify in writing a responsible party and schedule for erosion control, street cleaning, and street sweeping. 17. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction required by this Contract and final acceptance by the City, the improvements lying within public easements shall become City property without further notice or action. 18. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. The Developer shall pay a fee for in-house engineering administration. City engineering administration will include 8 196589v4 monitoring 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. Fees for this service shall be three percent (3%) of construction costs identified in the Summary of Security Requirements if using a letter of credit, assuming normal construction and project scheduling. The Developer shall pay for construction observation performed by the City’s in-house engineering staff or consulting engineer. Construction observation shall include part or full time inspection of proposed public utilities and street construction and will be billed on hourly rates estimated to be five percent (5%) of the estimated construction cost. 19. STORM SEWER. Development of Berres Ridge 4th Addition includes the construction of public storm sewer systems. Storm sewer will be installed within the subdivision to collect and convey stormwater runoff generated from within the public right -of-way and lots to the public stormwater management basins located within Outlot B. The Developer shall construct a temporary storm sewer outlet for the temporary basin on Outlot A. The Developer shall remove this storm sewer in the future when the temporary basin is no longer necessary. The Trunk Storm Sewer Area Charge has not been collected on the parent parcels, and must be paid at the time of final plat approval, calculated as follows: Gross Area of Berres Ridge 4th Addition 3,385,787.00 s.f. Less Area of Outlot A (Future Development) (-) 2,512,965.00 s.f. Less Area of Outlot B (Future Development) (-) 381,637.00 s.f. Total = 491,185.00 s.f. 491,185.00 s.f. x $0.178/s.f. = $87,430.93 Net Area of Berres Ridge 4th Addition Area Charge Total The remainder of the Trunk Storm Sewer Area Charge will be collected at the time Outlots A and B are final platted into lots and blocks, at the rate in effect at the time of final plat. Final locations and sizes of all storm sewer facilities will be reviewed by City staff with the final construction plans. 9 196589v4 20. SANITARY SEWER. Development of Berres Ridge 4th Addition includes the extension of public sanitary sewer. Sanitary sewer will be extended within the subdivision to provide sanitary sewer service to the development. The Sanitary Sewer Availability Charge has not been collected on the parent parcels and must be paid at the time of final plat approval. The fee will be based on the current rate in effect at the time of final plat approval, calculated as follows: 28 units x $327.00 = $9,156.00 Total Units In Berres Ridge 4th Addition Sanitary Sewer Availability Charge Per Unit Sanitary Sewer Availability Charge Required With Berres Ridge 4th Addition 21. CONSTRUCTION ACCESS. Construction traffic access and egress for grading, utility and street construction is restricted to access the subdivision via Henley Lane by way of 200th Street. No construction traffic is permitted on the adjacent local streets. 22. PARKS AND SIDEWALK DEDICATION. Development of Berres Ridge 4th Addition includes the construction of public sidewalks. Five-foot wide concrete sidewalks, with pedestrian curb ramps, will be installed along one side of all local streets. The Park Dedication requirement has not been collected on the parent parcels and shall be satisfied through a cash contribution that must be paid at the time of final plat approval. The Park Dedication Fee will be based on the rate in effect at the time of final plat approval, calculated as follows: 28 units x $4,090.00 = $114,520.00 Total Units In Berres Ridge 4th Addition Park Dedication Fee Park Dedication Requirement 23. TRAFFIC CONTROL SIGNS AND STREET LIGHT OPERATION COSTS. A cash fee for traffic control signs in the amount of $1,850.00 is due with the platting of Berres Ridge 4th Addition. Street which consists of one stop and street blade combination at $450.00, one stop sign at $350.00, six nine- button delineators at $125.00 each, two future thru street signs at $75.00 each, and a mobilization fee of $150.00. If the street signs are installed during frost conditions, the Developer shall pay an additional $150.00 for each street sign location. 10 196589v4 A cash fee for one-year of streetlight operating expenses shall be paid at the time of final plat approval and is calculated as follows: 28 units x $35.40/unit. = $991.20 Total Units In Berres Ridge 4th Addition Streetlight Operating Fee Total 24. ENVIRONMENTAL RESOURCES EXPENSES. A cash fee for one-year of environmental resources expenses shall be paid at the time of final plat approval and is calculated as follows: 28 units x $41.68/unit = $1,167.04 Total Units In Berres Ridge 4th Addition Environmental Resources Fee Total 25. LANDSCAPING. Unless the lot already has two (2) trees on it, the Developer or lot purchaser shall plant sufficient trees so that there are at least two (2) trees on every lot in the plat, one of which must be planted in the front yard. Trees that are chosen by the Developer or property owner cannot cause a public nuisance, such as cotton producing trees, or trees that may become a public hazard due to insect infestation or weak bark. The minimum deciduous tree size shall be two and one-half (2½) inches caliper, balled and burlapped. Evergreen trees must be at least eight feet (8’) tall. The trees may not be planted in the right - of-way. The Developer or lot purchaser shall sod the front yard, boulevard, and side yards to the rear of the structure on every lot. Weather permitting, the trees, sod, and seed shall be planted within sixty (60) days after a home has received a certificate of occupancy. Before a building permit is issued, a cash escrow of $1,000.00 per lot shall be furnished the City to guarantee compliance with the landscaping requirements. If the landscaping is not completed in a timely manner, the City may enter the lot, perform the work, and apply the cash escrow toward the cost. Upon satisfactory completion of the landscaping the escrow funds, without interest, less any draw made by the City, shall be returned to the person who deposited the funds with the City. All trees shall be warranted to be alive, of good quality, and disease free for twelve (12) months after planting. Any replacements shall be warranted for twelve (12) months from the time of planting. The Developer or property owner is responsible for contacting the City when all the landscaping has been installed to set up an inspection. Fifty percent (50%) of the security will be released when all the landscaping has been installed and inspected by City staff and the remaining fifty 11 196589v4 percent (50%) will be released one year after the landscaping inspection and any warranty work has been completed. 26. DRAINAGE. Development of Berres Ridge 4th Addition includes the construction of a temporary and a permanent public stormwater management basin to collect and treat the stormwater runoff generated from the site. The basins will provide water quality treatment and rate control of the stormwater runoff generated from the Berres Ridge 4th Addition subdivision. A structural outlet for the permanent basin will not be constructed with the development improvements, as the downstream storm sewer will be constructed with future phases of the development. The basin will discharge overland to a temporary basin which discharges to public storm sewer, until the supporting sewer system is constructed with Phase 5 of Berres Ridge. The Developer shall stabilize and maintain the downstream swale until such time that the outlet is constructed. The permanent stormwater management basin will be located within Outlot B, and the temporary basin will be constructed on Outlot A. The Developer shall convey a temporary drainage and utility easement over the area of the basins and the temporary inflow and outflow swales at the time of final plat approval. 27. SPECIAL PROVISIONS. The following special provisions shall apply to plat development: A. Implementation of the recommendations listed in the February 15, 2018 Engineering Report. B. Developer shall place “Future Street Extension” signs and barricades at the north and east end of Harvest Drive and Henley Lane until they are extended in the future. C. Prior to City Council approval of the final plat, the Developer shall furnish a boundary survey of the proposed property to be platted with all property corner monumentation in place and marked with lath and a flag. Any encroachments on or adjacent to the property shall be noted on the survey. The Developer shall post a $3,000.00 security for the final placement of interior subdivision iron monuments at property corners. The security was calculated as follows: thirty (30) lots/outlots at $100.00 per lot/outlots. The security will be held by the City until the Developer's land surveyor certifies that all irons have been set following site grading and utility 12 196589v4 and street construction. In addition, the certificate of survey must also include a certification that all irons for a specific lot have either been found or set prior to the issuance of a building permit for that lot. D. The Developer shall pay a cash fee for the preparation of record construction drawings and City base map updating. This fee is $90.00 per lot/outlot for a total charge of $2,700.00. E. The Developer shall be responsible for the cost of street light installation consistent with a street lighting plan approved by the City. Before the City signs the final plat, the Developer shall post a security for street light installation consistent with the approved plan. The estimated amount of this security is $7,200.00 and consists of six (6) post-top street lights at $1,200.00 each. F. The Developer is required to submit the final plat in electronic format. The electronic format shall be either AutoCAD.DWG file or a .DXF file. All construction record drawings (e.g., grading, utilities, streets) shall be in electronic format in accordance with standard City specifications. 28. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the terms of this Contract, payment of real estate taxes including interest and penalties, payment of special assessments, payment of the costs of all public improvements, and construction of all public improvements, the Developer shall furnish the City with a cash escrow, letter of credit or alternate security, in the form attached hereto, from a bank ("security") for $751,501.63. If an alternate security is furnished, the Developer shall also furnish a letter of credit for twenty-five percent (25%) of the alternate security amount to cover any contract increases. The amount of the security was calculated as follows: CONSTRUCTION COSTS: A. Sanitary Sewer $ 93,049.33 B. Watermain 140,614.76 C. Storm Sewer 70,352.67 D. Street Construction 285,827.75 E. Erosion Control, Stormwater and Filtration Basins, Restoration, Grading And Grading Certification 75,000.00 CONSTRUCTION SUB-TOTAL $ 664,844.51 13 196589v4 OTHER COSTS: A. Developer’s Design (3.0%) $ 19,945.34 B. Developer’s Construction Survey (2.5%) 16,621.11 C. City Legal Expenses (Est. 0.5%) 3,324.22 D. City Construction Observation (Est. 5.0%) 33,242.23 E. Developer’s Record Drawings (0.5%) 3,324.22 F. Street Lights 7,200.00 G. Lot Corners/Iron Monuments 3,000.00 OTHER COSTS SUB-TOTAL $ 86,657.12 TOTAL SECURITIES: $ 751,501.63 This breakdown is for historical reference; it is not a restriction on the use of the security. The bank shall be subject to the approval of the City Administrator. The City may draw down the security, on five (5) business days written notice to the Developer, for any violation of the terms of this Contract or without notice if the security is allowed to lapse prior to the end of the required term. If the required public improvements are not completed at least thirty (30) days prior to the expiration of the security, the City may also draw it down without notice. If the security is drawn down, the proceeds shall be used to cure the default. Upon receipt of proof satisfactory to the City that work has been completed and financial obligations to the City have been satisfied, with City approval the security may be reduced from time to time by ninety percent (90%) of the financial obligations that have been satisfied. Ten percent (10%) of the amounts certified by the Developer's engineer shall be retained as security until all improvements have been completed, all financial obligations to the City satisfied, the required "as constructed" plans have been received by the City, a warranty security is provided, and the public improvements are accepted by the City Council. The City’s standard specifications for utility and street construction outline procedures for security reductions. 29. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash requirements under this Contract which must be furnished to the City prior to the City Council signing the final plat: A. Park Dedication $ 114,520.00 14 196589v4 B. Sanitary Sewer Availability Charge 9,156.00 C. Trunk Storm Sewer Area Charge 87,403.93 D. Traffic Control Signs 1,850.00 E. Street Light Operating Fee 991.20 F. Environmental Resources Expenses 1,167.04 G. City Base Map Updating 2,700.00 H. City Engineering Administration (3% for letters of credit or 3.25% for alternate disbursement) 19,945.34 TOTAL CASH REQUIREMENTS $ 237,733.51 30. WARRANTY. The Developer warrants all improvements required to be constructed by it pursuant to this Contract against poor material and faulty workmanship. The warranty period for streets is one year. The warranty period for underground utilities is two years and shall commence following completion and acceptance by City Council. The one year warranty period on streets shall commence after the final wear course has been installed and accepted by the City Council. The Developer shall post maintenance bonds in the amount of twenty-five percent (25%) of final certified construction costs to secure the warranties. 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. The City’s standard specifications for utility and street construction identify the procedures for final acceptance of streets and utilities. 31. RESPONSIBILITY FOR COSTS. A. Except as otherwise specified herein, the Developer shall pay all costs incurred by it or the City in conjunction with the development of the plat, 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 Contract, review of construction plans and documents, and all costs and expenses incurred by the City in monitoring and inspecting development of the plat. B. 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 15 196589v4 approval and development. The Developer shall indemnify the City and its officers, employees, and agents for all costs, damages, or expenses which the City may pay or incur in consequence of such claims, including attorneys' fees. C. The Developer shall reimburse the City for costs incurred in the enforcement of this Contract, including engineering and attorneys' fees. D. 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 Contract. 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. E. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Contract within thirty (30) days after receipt. If the bills are not paid on time, the City may halt plat development and construction 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. Additionally, the Developer shall pay in full all bills submitted to it by the City prior to any reductions in the security for the development. F. In addition to the charges and special assessments referred to herein, other charges and special assessments may be imposed such as but not limited to sewer availability charges ("SAC"), City water connection charges, City sewer connection charges, and building permit fees. 32. DEVELOPER’S DEFAULT. In the event of default by the Developer as to any of the work to be performed by it hereunder, the City may, at its option, perform the work and the Developer shall promptly reimburse the City for any expense incurred by the City, provided the Developer, except in an emergency as determined by the City, is first given notice of the work in default, not less than forty-eight (48) hours in advance. This Contract 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. 33. MISCELLANEOUS. 16 196589v4 A. The Developer represents to the City that the plat 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 plat until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. B. Third parties shall have no recourse against the City under this Contract. C. Breach of the terms of this Contract by the Developer shall be grounds for denial of building permits, including lots sold to third parties. D. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Contract is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Contract. E. Grading, curbing, and one lift of asphalt shall be installed on all public and private streets prior to issuance of any building permits, except two (2) model homes on lots acceptable to the Building Official. Approval of an administrative permit in compliance with Chapter 27 of the City’s zoning ordinance is required prior to the construction of any model homes. F. If building permits are issued prior to the acceptance of public improvements, the Developer assumes all liability and costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, Developer, its contractors, subcontractors, material men, employees, agents, or third parties. No sewer and water connections or inspections may be conducted and no one may occupy a building for which a building permit is issued on either a temporary or permanent basis until the streets needed for access have been paved with a bituminous surface and the utilities are accepted by the City Engineer. G. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and 17 196589v4 approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. H. This Contract shall run with the land and may be recorded against the title to the property. In the event this Contract is recorded, the City covenants to provide a recordable Certificate of Completion promptly upon the completion of the work and responsibilities required herein, payment of all costs and fees required and compliance with all terms of the Contract. 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 Contract, 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. I. Insurance. Prior to execution of the final plat, Developer and its general contractor shall furnish to the City a certificate of insurance showing proof of the required insurance required under this Paragraph. Developer and its general contractor shall take out and maintain or cause to be taken out and maintained until six (6) months after the City has accepted the public improvements, such insurance as shall protect Developer and its general contractor and the City for work covered by the Contract including workers’ compensation claims and property damage, bodily and personal injury which may arise from operations under this Contract, whether such operations are by Developer and its general contractor or anyone directly or indirectly employed by either of them. The minimum amounts of insurance shall be as follows: Commercial General Liability (or in combination with an umbrella policy) $2,000,000 Each Occurrence $2,000,000 Products/Completed Operations Aggregate $2,000,000 Annual Aggregate The following coverages shall be included: Premises and Operations Bodily Injury and Property Damage Personal and Advertising Injury Blanket Contractual Liability Products and Completed Operations Liability 18 196589v4 Automobile Liability $2,000,000 Combined Single Limit – Bodily Injury & Property Damage Including Owned, Hired & Non-Owned Automobiles Workers Compensation Workers’ Compensation insurance in accordance with the statutory requirements of the State of Minnesota, including Employer’s Liability with minimum limits are as follows: • $500,000 – Bodily Injury by Disease per employee • $500,000 – Bodily Injury by Disease aggregate • $500,000 – Bodily Injury by Accident The Developer’s and general contractor’s insurance must be “Primary and Non-Contributory”. All insurance policies (or riders) required by this Contract shall be (i) taken out by and maintained with responsible insurance companies organized under the laws of one of the states of the United States and qualified to do business in the State of Minnesota, (ii) shall name the City, its employees and agents as additional insureds (CGL and umbrella only) by endorsement which shall be filed with the City. A copy of the endorsement must be submitted with the certificate of insurance. Developer’s and general contractor’s policies and Certificate of Insurance shall contain a provision that coverage afforded under the policies shall not be cancelled without at least thirty (30) days’ advanced written notice to the City, or ten (10) days’ notice for non-payment of premium. An Umbrella or Excess Liability insurance policy may be used to supplement Developer’s or general contractor’s policy limits on a follow-form basis to satisfy the full policy limits required by this Contract. J. Indemnification. To the fullest extent permitted by law, Developer agrees to defend, indemnify and hold harmless the City, and its employees, officials, and agents from and against all claims, actions, damages, losses and expenses, including reasonable attorney fees, arising out of Developer’s negligence or its performance or failure to perform its obligations under this Contract. Developer’s indemnification obligation shall apply to Developer’s general contractor, subcontractor(s), or anyone directly or indirectly employed or hired by Developer, or anyone for 19 196589v4 whose acts Developer may be liable. Developer agrees this indemnity obligation shall survive the completion or termination of this Contract. K. 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. L. The Developer may not assign this Contract 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, until the City’s issuance of a Certificate of Completion and Release. M. Retaining walls that require a building permit shall be constructed in accordance with plans and specifications prepared by a structural or geotechnical engineer licensed by the State of Minnesota. Following construction, a certification signed by the design engineer shall be filed with the Building Official evidencing that the retaining wall was constructed in accordance with the approved plans and specifications. All retaining walls identified on the development plans and by special conditions referred to in this Contract shall be constructed before any other building permit is issued for a lot on which a retaining wall is required to be built. N. Should the Developer convey any lot or lots in the Development to a third party, the City and the owner of that lot or those lots may amend this Development Contract or other city approvals or agreements for development or use of those lots without the approval or consent of the Developer or other lot owners in the Development. Private agreements between the owners of lots within the Development for shared service or access and related matters necessary for the efficient use of the Development shall be the responsibility of the lot owners and shall not bind or restrict City authority to approve applications from any lot owner in the Development. 20 196589v4 34. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, its employees or agents, or mailed to the Developer by certified mail at the following address: 10519 165th Street West, Lakeville, Minnesota 55044 Notices to the City shall be in writing and shall be either hand delivered to the City Administrator, or mailed to the City by certified mail in care of the City Administrator at the following address: Lakeville City Hall, 20195 Holyoke Avenue, Lakeville, Minnesota 55044. [The remainder of this page has been intentionally left blank. Signature pages follow.] 21 196589v4 CITY OF LAKEVILLE BY: ___________________________________________ Douglas P. Anderson, Mayor (SEAL) AND __________________________________________ Charlene Friedges, City Clerk STATE OF MINNESOTA ) )ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this ________ day of ______________, 2018, by Douglas P. Anderson and by Charlene Friedges, the Mayor and City Clerk of the City of Lakeville, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. ______________________________________________ NOTARY PUBLIC 23 196589v4 FEE OWNER CONSENT TO DEVELOPMENT CONTRACT RICHARD J. BERRES AND ROBERTA J. FOILES, AS CO-TRUSTEES OF THE JOANNE BERRES MARITAL TRUST DATED NOVEMBER 8, 2011, fee owner of all or part of the subject property, the development of which is governed by the foregoing Development Contract, affirms and consents to the provisions thereof and agrees to be bound by the provisions as the same may apply to that portion of the subject property owned by the Trust. Dated this _____ day of ____________, 2018. JOANNE BERRES MARITAL TRUST DATED NOVEMBER 8, 2011 By: Richard J. Berres, Co-trustee By: Roberta J. Foiles, Co-trustee STATE OF MINNESOTA ) )ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this ________ day of ______________, 2018, by Richard J. Berress and Roberta J. Foiles, as Co-Trustees of the Joanne Berres Marital Trust dated November 8, 2011, on its behalf. _________________________________________ NOTARY PUBLIC DRAFTED BY: CAMPBELL KNUTSON Professional Association Grand Oak Office Center I 860 Blue Gentian Road, Suite 290 Eagan, Minnesota 55121 651-452-5000 AMP/cjh 24 196589v4 [BANK LETTERHEAD] IRREVOCABLE LETTER OF CREDIT No. ___________________ Date: _________________ TO: City of Lakeville 20195 Holyoke Avenue Lakeville, Minnesota 55044 Dear Sir or Madam: We hereby issue, for the account of (Name of Developer) and in your favor, our Irrevocable Letter of Credit in the amount of $____________, available to you by your draft drawn on sight on the undersigned bank. The draft must: a) Bear the clause, "Drawn under Letter of Credit No. __________, dated ________________, 2_____, of (Name of Bank) "; b) Be signed by the City Administrator or Finance Director of the City of Lakeville. c) Be presented for payment at (Address of Bank) , on or before 4:00 p.m. on November 30, 2_____. This Letter of Credit shall automatically renew for successive one-year terms unless, at least forty-five (45) days prior to the next annual renewal date (which shall be November 30 of each year), the Bank delivers written notice to the Lakeville Finance Director that it intends to modify the terms of, or cancel, this Letter of Credit. Written notice is effective if sent by certified mail, postage prepaid, and deposited in the U.S. Mail, at least forty-five (45) days prior to the next annual renewal date addressed as follows: Lakeville Finance Director, Lakeville City Hall, 20195 Holyoke Avenue, Lakeville, MN 55044, and is actually received by the Finance Director at least thirty (30) days prior to the renewal date. This Letter of Credit sets forth in full our understanding which shall not in any way be modified, amended, amplified, or limited by reference to any document, instrument, or agreement, whether or not referred to herein. This Letter of Credit is not assignable. This is not a Notation Letter of Credit. More than one draw may be made under this Letter of Credit. This Letter of Credit shall be governed by the most recent revision of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600. We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly honored upon presentation. [NAME OF BANK] BY: ____________________________________ Its ______________________________ 25 196589v4 ALTERNATE SECURITY AGREEMENT _________________, 2____ City of Lakeville 20195 Holyoke Avenue Lakeville, Minnesota 55044 Attention: City Administrator RE: Alternate Security Agreement Plat Name: Gentlemen: ______________________________ ("Developer") is developing real property within the corporate boundaries of Lakeville (the "City") which is being platted as ____________________________ (the "Subdivision"). The Developer has entered into a Development Contract with the City dated ________________________, as amended (the "Development Contract"). The Development Contract requires the Developer to complete certain improvements and other work in the Subdivision in a particular manner and within a particular time. The Development Contract requires that the Developer provide to the City certain security to assure the City that the Developer will comply with the Development Contract and that the Subdivision improvements and other required work will be installed and paid for by the Developer as and when required by the Development Contract. The Developer desires to provide to the City alternative security in the form of this letter agreement and the City is willing to accept this letter agreement as alternative security. The ______________________________________ ("Bank") irrevocably pledges to fund and disburse $_______________ in accordance with the Disbursement Agreement dated _______________, 2_____, a copy of which is attached hereto as Exhibit "A". Any bankruptcy, insolvency, other financial difficulty of the Developer, or default by the Developer under any agreements entered into between the Bank and the Developer shall not affect the Bank's irrevocable obligations to disburse funds pursuant to this agreement and pursuant to the aforementioned Disbursement Agreement. Neither the Bank nor the Developer may take any action, such as but not limited to amending or terminating the Bank's loan agreement or the Disbursement Agreement, that could impair the City's ability to draw down funds pledged to payment of the cost of the Subdivision improvements and to performance of the Development Contract. The Bank agrees to honor this covenant under all circumstances. Sincerely, BANK: DEVELOPER: BY: ____________________________ BY: ____________________________ Its Its 26 196589v4 Exhibit "A" to Alternate Security Agreement _________________, 2_____ RE: Disbursement Agreement Plat Name: Gentlemen: This letter addresses the operating procedures under which the City of Lakeville (herein "City") will authorize disbursement of funds pursuant to the letter agreement dated _______________, 2_____, between _________________________________ ("Lender"), the City, and ______________________________________ (hereinafter "Developer") for the above-referenced development. 1. Certification of Work. __________________________ (the "Private Engineer") shall certify on behalf of the City the progress of construction of the Subdivision improvements at the completion of each stage of construction. Each certification shall set forth the quality of workmanship, stage of construction according to the plans and specifications, the dollar amount of work completed to the date of certification, and the dollar amount of disbursement necessary to pay for the most recently certified work. 2. Delivery of Certification; Approval by City. The Private Engineer shall mail by certified mail, postage prepaid, return receipt requested, or hand deliver, each certification contemporaneously to the Lender, the Developer, and the City. The City may perform its own independent inspection of the Subdivision improvements and give contemporaneous written approval or rejection to Lender and the Developer regarding any item in the most recently received certification. The City will make its best effort to reply within ten (10) working days after the postmark date or date of acknowledgment of hand delivery of such certification. 3. Disbursement and Retainage. If the City approves the certification, the Lender may rely upon the certification and may disburse no more than ninety percent (90%) of the sums certified by the Private Engineer. Ten percent (10%) of all certified sums (the "Retainage") shall be retained until the final inspection by the City. The Retainage shall be disbursed 91 days after the City completes its final inspection and approves of the Subdivision improvements. If the City objects to any item in a certification, the Lender shall not disburse any funds relating to that item until the City has given its written consent. 4. Suspension and Termination of Private Inspections. The City may terminate or suspend the right of the Private Engineer to certify work. The City may exercise this suspension or termination right by giving contemporaneous written notice to the Developer and the Lender by personal delivery or by mailing such notice by certified mail, postage prepaid, return receipt requested. Any such suspension or termination shall be prospective only, effective only upon receipt of notice by all parties to whom notice must be given, and shall not affect any certification issued by the Private Engineer prior to such suspension or termination. If the City does suspend or terminate the Private Engineer's certification rights, the City shall, upon periodic requests by the Developer, promptly make inspections of the Subdivision and certify to the Lender that the work completed and the amount to be disbursed is acceptable to the City. Notwithstanding any provision of 27 196589v4 this paragraph, the City may independently inspect and certify any work on the Subdivision prior to any payment for such work pursuant to this Agreement. 5. Final Inspection. Pursuant to the Development Contract, the City Engineer of the City shall make a final inspection of the Subdivision. The Private Engineer shall have absolutely no right to act on the City's behalf in making this final inspection. The City Engineer may object to any construction defects discovered during the final inspection regardless of when they occurred. The City's failure to object to any earlier certification by the Private Engineer shall not be deemed a waiver of the City's right to demand the correction of defective work discovered during the final inspection. 6. Default. If the Developer defaults upon its obligations under the Development Contract and does not diligently proceed to cure the default within ten (10) days after the City gives the Developer written notice of it, the Lender shall disburse the undisbursed remaining balance of the Subdivision Improvement Amount to the City upon receiving written notice from the City addressed to both the Lender and the Developer. This notice shall be signed by the Mayor or the Clerk of the City. 7. Term of Agreement. This Agreement shall commence on the date hereof and shall expire upon the fifth anniversary of the date hereof. 8. In Lieu of Letter of Credit. This Agreement is in lieu of the letter of credit normally required by the City to secure the completion of residential subdivision improvements. 9. Successors and Assigns. The terms, conditions and provisions of this Agreement shall be for the benefit of and binding upon the parties to this Agreement, their successors and assigns. IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year first above written. LENDER: _______________________ CITY OF LAKEVILLE BY: ___________________________ Its BY: ___________________________ Douglas P. Anderson, Mayor DEVELOPER: AND __________________________ __________________________ Charlene Friedges, City Clerk BY _____________________________ Its 1 2 • • 3                                                                                                                         PH-ENG-115237-PHASING-COVER 1 BERRES RIDGE PHASING PLAN LAKEVILLE, MINNESOTA PHASING PLAN Know what's below. before you dig.Call R I hereby certify that this plan was prepared by me or under my direct supervision and that I am a duly Licensed Professional Engineer under the laws of the State of Minnesota c OFBERRES RIDGE PHASE PLAN LAKEVILLE, MINNESOTA BERRES RIDGE DEVELOPMENT COMPANY LLC. 10519 165TH STREET WEST 10-06-2016 NAP JMM Name Reg. No.Date Revisions Date Designed Drawn 2016 Pioneer Engineering, P.A. Mendota Heights, MN 55120 2422 Enterprise Drive (651) 681-1914 Fax: 681-9488www.pioneereng.com LANDSCAPE ARCHITECTSLAND SURVEYORSLAND PLANNERSCIVIL ENGINEERS 47504 10-06-2016 Brian N. Molinaro LAKEVILLE, MN 55044 1 1ST ADDITIONBERRES RI D GE BERR ES RI D G E 2ND A D DI TI O N BERRES R IDGEFUTURE PHASE BERRES RIDGE 1ST ADDITIONBERRES RIDGE4TH ADDITIONREGISTERED PROFESSIONAL CIVIL ENGINEER PREPARED BY PIONEER ENGINEERING, P.A. REGISTERED PROFESSIONAL LAND SURVEYOR DEVELOPER REG. NO. 42299 BRIAN N. MOLINARO PETER J. HAWKINSON REG. NO. 47504 BERRES RIDGE DEVELOPMENT COMPANY LLC. 10519 165TH STREET WEST LAKEVILLE, MN 55044 PROPOSED DEVELOPMENT ZONING RS-3 TOTAL SINGLE FAMILY UNITS: 28 TOTAL UNITS: 28 SITE DATA: TOTAL AREA: 77.7269 ACRES TOTAL LOT AREA: 8.9823 ACRES TOTAL OUTLOT AREA: 66.4509 ACRES TOTAL RIGHT-OF-WAY AREA: 2.2938 ACRES PRESENT ZONING: RS-3 Front: Garage foundation to R-O-W =30' House foundation to R-O-W =30' Side =10' Rear=30' Corner =20' MIN AREA: LOT AREA =11,000 SF CORNER LOT AREA =12,500 SF LOT WIDTH: LOT WIDTH =85' CORNER LOT WIDTH =100' SETBACKS RS-3 Wetland Buffer =20' Rear=10' Side Lowest Opening = EOF+1' Lowest Floor = HWL+3' LOCATION MAP 04-ENG-115237-SHEET-COVR 1.10 BERRES RIDGE 4TH ADDITION COVER SHEET Know what's below. before you dig.Call R UTILITY, STREET & GRADING CONSTRUCTION PLAN LAKEVILLE, MINNESOTA I hereby certify that this plan was prepared by me or under my direct supervision and that I am a duly Licensed Professional Engineer under the laws of the State of Minnesota c 15OFBERRES RIDGE 4TH ADDITION LAKEVILLE, MN BERRES RIDGE DEVELOPMENT COMPANY 10519 165TH STREET WEST 11-27-17 NAP/BNM BNM/NCR Name Reg. No.Date Revisions 1. 12-22-17 City Comments Date Designed Drawn 2017 Pioneer Engineering, P.A. Mendota Heights, MN 55120 2422 Enterprise Drive (651) 681-1914 Fax: 681-9488www.pioneereng.com LANDSCAPE ARCHITECTSLAND SURVEYORSLAND PLANNERSCIVIL ENGINEERS 47504 11-27-17 Brian N. Molinaro LAKEVILLE, MN 55044 SHEET INDEX LEGEND SHEET COVER SHEET 1.10 1.20 PLAN & PROFILE 3.20 PLAN & PROFILE 4.10 - 4.11 PLAN & PROFILE DRAINTILE PLAN STORM SEWER STRUCTURE SCHEDULE 3.30 CITY DETAILS 5.10 - 5.13 2.10-2.11 3.10-3.11 SANITARY SEWER & WATERMAIN CONSTRUCTION STORM SEWER CONSTRUCTION STREET CONSTRUCTION MnDOT DETAILS 5.20 GRADING PLAN G1.1-G1.3 EROSION CONTROL PLAN G1.4-G1.6 GRADING DETAILS G1.7-G1.8 LANDSCAPE PLAN L1. TREE PRESERVATION PLAN T1. CIVIL ENGINEERS LAND PLANNERS LAND SURVEYORS LANDSCAPE ARCHITECTS CIVIL ENGINEERS LAND PLANNERS LAND SURVEYORS LANDSCAPE ARCHITECTS CIVIL ENGINEERS LAND PLANNERS LAND SURVEYORS LANDSCAPE ARCHITECTS • • • • BBEERRRREESS RRIIDDGGEE 44TTHH AADDDDIITTIIOONN –– FFIINNAALL PPLLAATT FFEEBBRRUUAARRYY 1155,, 22001188 PPAAGGEE 22 OOFF 88 BBEERRRREESS RRIIDDGGEE 44TTHH AADDDDIITTIIOONN –– FFIINNAALL PPLLAATT FFEEBBRRUUAARRYY 1155,, 22001188 PPAAGGEE 33 OOFF 88 BBEERRRREESS RRIIDDGGEE 44TTHH AADDDDIITTIIOONN –– FFIINNAALL PPLLAATT FFEEBBRRUUAARRYY 1155,, 22001188 PPAAGGEE 44 OOFF 88 BBEERRRREESS RRIIDDGGEE 44TTHH AADDDDIITTIIOONN –– FFIINNAALL PPLLAATT FFEEBBRRUUAARRYY 1155,, 22001188 PPAAGGEE 55 OOFF 88 BBEERRRREESS RRIIDDGGEE 44TTHH AADDDDIITTIIOONN –– FFIINNAALL PPLLAATT FFEEBBRRUUAARRYY 1155,, 22001188 PPAAGGEE 66 OOFF 88 BBEERRRREESS RRIIDDGGEE 44TTHH AADDDDIITTIIOONN –– FFIINNAALL PPLLAATT FFEEBBRRUUAARRYY 1155,, 22001188 PPAAGGEE 77 OOFF 88 BBEERRRREESS RRIIDDGGEE 44TTHH AADDDDIITTIIOONN –– FFIINNAALL PPLLAATT FFEEBBRRUUAARRYY 1155,, 22001188 PPAAGGEE 88 OOFF 88