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1f1. HSZ Development, Dev Contract I - 1 CITYOF 1 kItt CHANHASSEN 1 T f 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 MEMORANDUM TO: Don Ashworth, City Manager FROM: Larry Brown, Staff Engineer 1 DATE: July 22 , 1988 SUBJ: Approval of Development Contract for Seven Forty-One Crossing HSZ Development File No. 88-17 ( private) 1 Attached is the development contract as prepared by the City Attorney which incorporates the City Council' s conditions of approval from the plat and plans and specifications review 1 process. Since the completion of the HSZ site is dependent upon the construction of the cul-de-sac for West 64th Street within the 1 Reed property , it is recommended that the financial securities cover all costs for the following items: 1 i. All construction for the Seven Forty-One Crossing site. 2 . Construction for the cul-de-sac for West 64th Street. ' 3. The lefthand turn lane off of Highway 7 for Oriole Lane. 4. All turn lanes and bypass lanes on Trunk Highway 41 necessi- tated by this development. 5 . All storm sewer and ponding sites necessitated by this development. It is therefore recommended that the City Council approve the attached development contract for the Seven Forty-One Crossing 1 and authorize its execution. Attachment: Development Contract ✓/) • CITY OF CHANHASSEN I DEVELOPMENT CONTRACT (Developer Installed Improvements) r SEVEN FORTY-ONE CROSSING SPECIAL PROVISIONS r AGREEMENT dated , 19 , by and between the CITY OF CHANHASSEN, a Minnesota municipal corporation , (the "City") , and HSZ DEVELOPMENT, LTD. , a Minnesota corporation (the "Developer" ) . 1. Request for Plat Approval. The Developer has asked the City to approve a plat for SEVEN FORTY-ONE CROSSING ( referred r to in this Contract as the "plat") . The land is legally described on the attached Exhibit "A" . 2. Conditions of Plat Approval. The City hereby r approves the plat on condition that the Developer enter into this Contract and furnish the security required by it . 3. 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 Plan A, the plans may be prepared, subject to City approval, after entering the Contract , but before commencement of any work in the plat. If the plans vary from the written terms of this Contract , the written terms shall control. The plans are: Plan A--Plat dated "Received July 13 , 1988" , prepared by Peters , Price & Samson Land Surveyors , Ltd. r Plan B--Grading , Drainage, and Erosion Control Plan dated , 19 , prepared by Barrientos & Associates , Inc. Plan C--Plans and Specifications for Improvements dated , 19 , prepared by Barrientos & Associates , Inc. 4. Improvements. The Developer shall install and pay for the following: A. Sanitary Sewer System on 64th Street B. Water System on 64th Street C. 64th Street including Cul-de-sac D. Concrete Curb and Gutter E. Street Sign F. Street Light G. Site Grading H. Setting of Lot and Block Monuments I. Surveying and Staking SP-1 1 ' 1 J. Construction of Turn Lane for Westbound TH 7 K. Construction of 8-foot Bituminous Trail from 64th Street to TH 41 L. Storm Sewer System from the site to Herman Field Park M. Erosion Control N. Landscaping II5. Time of Performance. The Developer shall install all required improvements by November 30 , 1989. The Developer I 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 Ithe extended completion date. 6. Security. To guarantee compliance with the terms of this Contract , payment of special assessments , payment of the I costs of all public improvements and construction of all public improvements, the Developer shall furnish the City with a letter of credit from a bank, cash escrow, or equivalent ( "Security") I for $ The amount of the security was calculated as 110% of the following: Sanitary sewer $ II Watermain $ Storm sewer $ Street $ I Street light and sign $ Erosion Control $ Engineering, surveying , I and inspection $ Trail $ Turn Lane on TH 7 $ Landscaping $ ITOTAL COST OF PUBLIC IMPROVEMENTS $ I This breakdown is for historical reference; it is not a restric- tion on the use of the security. The security shall be subject to the approval of the City. The security shall be for a term II ending December 31 , 1989 . The City may draw down the security , without notice, for any violation of the terms of the Contract. If the required public improvements are not completed at least thirty ( 30 ) days prior to the expiration of the security , the II City may also draw it down. If the security is drawn down , the draw shall be used to cure the default . With City approval, the security may be reduced from time to time as financial obliga- ' tions are paid, but in no case shall the security be reduced to a point less than 25% of the original amount until all improvements are complete and accepted by the City. I 7. 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 Iregistered mail at the following address: II SP-2 HSZ Development, Ltd. ' Attn: Roger Zahn , President 123 North Third Street Suite 805 Minneapolis , MN 55401 Telephone: ( 612 ) Notices to the City shall be in writing and shall be either hand- ' delivered to the City Manager , or mailed to the City by registered mail in care of the City Manager at the following address: ' Chanhassen City Hall 690 Coulter Drive P. O. Box 147 Chanhassen, Minnesota 55317 Telephone: (612) 937-1900 8. Other Special Conditions. A. The Developer shall obtain and comply with the Watershed District permit . B. Hay bales shall be placed and staked around all storm sewer inlets. C. Wood fiber blanket or equivalent shall be used to stabilize all disturbed slopes greater than 3 :1 . ' D. The applicant shall obtain and comply with all conditions of the permits from the Minnesota Department of Transportation. E. Calculations verifying adequate pressure con- ditions for the sprinkler system of the proposed retail building shall be submitted for approval by the City Engineer prior to the issuance of a building permit . F. The proposed sanitary sewer and watermain systems internal to the site shall be constructed and maintained as private utilities. The City will not be responsible for any maintenance of the utilities (with the exception of public storm sewer drainage facilities) internal to the site. G. An acceptable traffic sign and pavement marking plan shall be submitted to the City Engineer prior to the issuance of a building permit . H. Plans and specifications which address the spe- cific alignment, installation , and erosion control for the pro- posed storm sewer system must be submitted and approved by the City Engineer prior to the issuance of a building permit . I. The applicant shall submit a revised erosion control plan subject to the approval of the City Engineer prior to the issuance of a building permit . SP-3 r 1 ' ' J. Before the City signs the final plat , the Developer shall convey to the City the following easements legally described on the attached Exhibit: Pond, Trail on 64th Street , and Cul-de-Sac on West 64th Street . K. Before the City signs the final plat, the ' Developer shall obtain and submit to the City Attorney for his approval an agreement signed by Gary Reed, Jane Reed, and Roger Reed in which they agree to hold harmless and indemnify the City, its officers, agents , and employees from any damages, claims , ' judgements , and the like resulting from the partial vacation of West 64th Street and the necessary realignment of driveways. 9. General Conditions. The general conditions of this Contract , approved by the City Council on February 22 , 1988 , are attached as Exhibit "Jr and incorporated herein. 1 I 1 SP-4 CITY OF CHANHASSEN I BY : Thomas L. Hamilton , Mayor (SEAL) BY: Don Ashworth, City Manager DEVELOPER: HSZ DEVELOPMENT, LTD. BY: I Its STATE OF MINNESOTA ) ss . COUNTY OF CARVER ) The foregoing instrument was acknowledged before me this day of , 1988, by Thomas L. Hamilton , Mayor, and by Don Ashworth, City Manager , of the City of Chanhassen, a Minnesota municipal corporation , on behalf of the corporation and pursuant to the authority granted by its City Council. 1 Notary Public STATE OF MINNESOTA ) I ss . COUNTY OF CARVER ) The foregoing instrument was acknowledged before me this I day of , 19 , by the of HSZ Development , Ltd. , a Minnesota corporation , on its behalf . Notary Public DRAFTED BY: Grannis , Grannis , Farrell & Knutson , P.A. 403 Norwest Bank Building 161 North Concord Exchange South St. Paul , MN 55075 ( 612) 455-1661 I SP-5 1 , CONSENT , fee owners of all or part of the subject property, the development of which is governed by the foregoing Development Contract , affirm ' and consent to the provisions thereof and agree to be bound by the provisions as the same may apply to that portion of the sub- ject property owned by them. Dated this day of , 19 STATE OF MINNESOTA ) ' COUNTY OF ) ss.) 111 day foregoing instrument was acknowledged before me this day of , 19 , by Notary Public ' DRAFTED BY: Grannis , Grannis , Farrell & Knutson , P.A. 403 Norwest Bank Building 161 North Concord Exchange South St. Paul, MN 55075 ( 612) 455-1661 1 1 SP-6 II CITY OF CHANHASSEN DEVELOPMENT CONTRACT (Developer Installed Improvements) EXHIBIT "B" GENERAL CONDITIONS 1. Right to Proceed. Within the plat or land to be platted, the Developer may not grade or otherwise disturb the earth, remove trees, construct sewer lines, water lines, streets, utilities public or private improvements, or any buildings until all the following ' conditions have been satisfied: 1) this agreement has been fully executed by both parties and filed with the City Clerk, 2) the necessary ' security has been received by the City, 3) the plat has been recorded with the County Recorder's Office of the County where the plat is located, and 4) the City Engineer has issued a written letter that the foregoing conditions have been satisfied and then the Developer may proceed. ' 2. 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. 3. Effect of Subdivision Approval. 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 urban service area 11, 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. ' 4. Improvements. The improvements specified in the Special Provisions of this Contract shall be installed in accordance with City ' standards, ordinances, and plans and specifications which have been prepared and signed by a competent registered professional engineer ' furnished to the City and approved by the City Engineer. The Developer shall obtain all necessary permits from the Metropolitan Waste Control Commission and other agencies before proceeding with construction. 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 or his engineer shall schedule a preconstruction meeting at a mutually agreeable time at the City Council chambers with all parties ' concerned, including the City staff, to review the program for the construction work. Within sixty (60) days after the completion of the ' improvements and before the security is released, the Developer shall ' supply the City with the following: (1) a complete set of reproducible Mylar as-built plans, (2) two complete sets of blue line as-built plans, -8- (3) two complete sets of utility tie sheets, (4) location of buried fabric used for soil stabilization, (5) location stationing of all utility stubs, and (6) bench mark network. 5. 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. 6. Erosion Control. Before the site is rough g raded and before any utility construction is commenced or building permits are issued, the erosion control plan, Plan B, shall be implemented by the Developer and inspected and approved by the City. The City may impose ' additional erosion control requirements if they would be beneficial. All areas disturbed by the excavation and backfilling operations shall be reseeded forthwith after the completion of the work in that area. Except II as otherwise provided in the erosion control plan, seed shall be certified seed to provide a temporary 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 erosion control plan and schedule or supplementary instructions received from the City, the City may take such action as it deems appropriate to control erosion at the Developer's expense. 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. No development will be allowed and no building permits will be issued unless the plat is in full compliance with the erosion control requirements. Erosion control -9- I ' needs to be maintained until vegetation cover has been restored, even if ' after construction as been completed and accepted. After completion of construction the City will remove the silt fences. To pay for the ' removal, before the City signs the final plat the Developer shall pay the City a fee of $1. 00 per foot of silt fence that is required to be rconstructed in accordance with the erosion control plan for the plat, Plan B. ' 7. Clean up. The Developer shall daily clean, on and off ff site, dirt and debris from streets and the surrounding area that has resulted from construction work by the Developer, its agents or assigns. 8. Acceptance and Ownership of Improvements. Upon completion and acceptance by the City of the work and construction required by this ' Contract, the improvements lying within public easements shall become ' City property. After completion of the improvements, a representative of the contractor, and a representative of the Developer's engineer will make a final inspection of the work with the City Engineer. Before the City accepts the improvements, the City Engineer shall be satisfied that ' all work is satisfactorily completed in accordance with the approved ' plans and specifications and the Developer and his engineer shall submit a written statement attesting to same with appropriate contractor ' waivers. Final acceptance of the public improvements shall be by City Council resolution. ' 9. Claims. In the event that the City receives claims from labor, materialmen, or others that work required by this Contract has been performed, the sums due them have not been aid and the P laborers, ' materialmen, or others are seeking payment out of the financial guarantees posted with the City, and if the claims are not resolved at -10- least ninety (90) days before the security required by this Contract will expire, the Developer hereby authorizes the City to commence an Inter leader action P pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Courts, to draw upon the letters of credit in I an amount up to 125% of the claim(s) and deposit the funds in compliance with the Rule, and upon such deposit, the Developer shall release, 1 discharge, and dismiss the City from any further proceedings as it pertains to the letters of credit deposited with the District Court except that the Court shall retain jurisdiction to determine attorneys' ' fees. 10. Park and Trail Dedication. Prior to the issuance of ' building permits for residential construction within the plat, the Developer, its successors or assigns, shall pay to the City the park and trail dedication fees then in force pursuant to Chanhassen City Ordinances and City Council resolutions. 11. Landscaping. Unless the lot already has one tree on it, ' the Developer shall plant a tree on every lot in the plat. Suitable trees include: Maples Ash Linden Basswood Green Ash Birch Honeylocust Ginko (male only) Hackberry Kentucky Coffee Tree Oak Other species of trees may be approved by the building inspector. Trees ' II which can cause a public nuisance, such as cotton producing trees, or can be a public hazard, such as bug infestation or weak bark, are , prohibited. The minimum tree size shall be two (2) inches caliper, either bare root in season, or balled and burlapped. The trees may not -11- ' ' I Ibe planted in the boulevard. The Developer shall sod the front yard, Iboulevard, side yards to the rear of the structure on every lot, and drainage ways. Weather permitting, the trees, sod, and seed shall be Iplanted before Certificates of Occupancy are issued for a lot. 12. Warranty. The Developer warrants all work required to be Iperformed by it against poor material and faulty workmanship for a period of one (1) year after its completion and acceptance by the City. IAll trees, grass, and sod shall be warranted to be alive, of g ood Iquality, and disease free at the time of planting. All trees shall be warranted for twelve (12) months from the time of planting. The IDeveloper shall post maintenance bonds or other security acceptable to the City to secure the warranties at the time of final acceptance. 1 13. Lot Plans. Prior to the issuance of building permits an Iacceptable Grading, Erosion Control, and Tree Removal Plan shall be submitted for each lot as required in the Special Provisions, for review Iand approval by the City Engineer. Each plan shall assure that drainage is maintained away from buildings and that tree removal is consistent Iwith City Ordinance. I14. Existing Assessments. Any existing assessments against the plat will be respread against the plat in accordance with City Istandards. 15. Street Lighting. Before the City signs the final plat, the IDeveloper shall pay the City a fee of $200. 00 for each street light installed in the plat. The fee shall be used by the City for furnishing Ielectricity for each light for twenty (20) months or until homes have Ibeen built on each lot in the plat, whichever first occurs. I -12- i . 16. Street Signs. All street name and traffic signs required II by the City as a part of the public improvements shall be furnished and I installed by the City at the sole expense of the Developer. 17. Responsibility for Costs. II A. The Developer shall pay an administrative fee in conjunction with the development of the plat to cover the cost of City II staff time and overhead. The fee shall be calculated as follows: i) if the cost of the construction of public I p improvements is less than $500, 000, three percent (3%) of construction costs; II ii) if the cost of the construction of public improvements is between $500, 000 and $1, 000, 000, two II percent (2%) of construction costs; iii) if the cost of the construction of public improvements is over $1, 000, 000, one and one-half II percent (1 1/2%) of construction costs. Before the City signs the final plat, the Developer shall deposit with II the City a fee based upon construction estimates. After construction is completed, the final fee shall be determined based upon actual II construction costs. The cost of public improvements is defined in paragraph 6 of the Special Provisions. II B. In addition to the administrative fee, the Developer I shall reimburse the City for all out-of-pocket costs incurred by the City in monitoring and inspecting development of the plat. I C. The Developer shall hold the City and its officers and employees harmless from claims made by itself and third parties for II damages sustained or costs incurred resulting from plat approval and development. The Developer shall indemnify the City and its officers I Y ers and employees for all costs, damages, or expenses which the City may pay or II incur in consequence of such claims, including attorneys' fees. II -13- II I . • • ' D. In addition to the administrative fee, the Developer shall reimburse the City for costs incurred in the enforcement of this ' Contract, including engineering and attorneys' fees. ' 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 all plat development work and construction, including but not limited to the issuance of building permits for lots which the Developer may or may not have sold, until the bills are paid in full. Bills not paid within thirty (30) days shall accrue interest at the rate ' of 8% per year. 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. 18. 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 is first given notice of the work in default, not ' less than four (4) days 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. -14- 1 II 19. Miscellaneous. A. Construction Trailers. Placement of on-site ' construction trailers and temporary job site offices shall be approved by the City Engineer as a part of the pre-construction meeting for ' installation of public improvements. Trailers shall be removed from the subject property within thirty (30) days following the acceptance of the ' public improvements unless otherwise approved by the City Engineer. B. Postal Service. The Developer shall provide for the maintenance of postal service in accordance with the local Postmaster's ' request. C. Third Parties. Third parties shall have no recourse ' against the City under this Contract. D. Breach of Contract. Breach of the terms of this Contract by the Developer shall be grounds for denial of building ' permits, including lots sold to third parties. E. Severability. 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. F. Delays. If building permits are issued prior to the completion and acceptance of public improvements, the Developer assumes ' all resulting liability and costs from delays in completion of public improvements and damage to public improvements caused by the City, , Developer, its contractors, subcontractors, materialmen, employees, agents, or third parties. G. Occupancy. Unless approved in writing by the City ' engineer, no one may occupy a building for which a building permit is -15- I . ' ' issued on either a temporary or permanent basis until the streets needed ' for access have been paved with a bituminous surface. H. Waivers/Amendments. 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 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. ' I. Release. This Contract shall run with the land and may be recorded against the title to the property . After the Developer has completed the work required of it under this Contract, at the Developer's request the City will execute and deliver to the Developer a release. ' J. Insurance. Developer shall take out and maintain until six (6) months after the City has accepted the public improvements, public liability and property damage insurance covering personal injury, including death, and claims for property damage which may arise out of tDeveloper's work or the work of its subcontractors or by one directly or ' indirectly employed by any of them. 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, and the Developer shall file with the City a certificate evidencing coverage prior to the City signing the lat. The certificate p shall provide that the City must be given ten (10) days advance written notice I ' -16- IMINI of the cancellation of the insurance. The certificate may not contain any disclaimer for failure to give the required notice. ' K. Remedies. 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. Assignability. 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. M. Construction Hours. Construction equipment may only be operated in the plat between 7: 00 a.m. and 6: 00 p.m. , Monday through Saturday. Operation of construction equipment is also prohibited on the following holidays: New Year's Day, Memorial Day, Labor Day, July 4th, Christmas Eve Day, and Christmas Day. I -17- '