HomeMy WebLinkAboutItem 16 - Hunters Crossing 1st Add Developers Agreement 9-30-14 Final(reserved for recording information)
DEVELOPMENT CONTRACT
(Public sewer and water)
Hunters Crossing 1st Addition
AGREEMENT dated _______________, 2014, by and between the CITY OF LAKE
ELMO a Minnesota municipal corporation (“City”), and The Ryland Group, Inc., a Maryland
corporation, (the “Developer”).
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to
approve the plat for Hunters Crossing 1st Addition (referred to in this this Contract as the “plat”).
The land is situated in the County of Washington, State of Minnesota, and is legally described in
Exhibit “A”:
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 (180) days after the City Council
approves the final plat.
3. RIGHT TO PROCEED. Unless separate written approval has been given by the
City, 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
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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 Washington County
Recorder’s Office, and 4) the City’s Community Development Director has issued a letter that all
conditions have been satisfied, a preconstruction conference has been held, and that the
Developer may proceed.
4. The Required HOA documents shall be recorded with the Washington County
Recorder’s Office within 30 days of the plat being recorded with the County.
5. PHASED DEVELOPMENT. This 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.
Area charges for sewer 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.
6. PRELIMINARY PLAT STATUS. 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 five (5) years after preliminary plat approval.
7. CHANGES IN OFFICIAL CONTROLS. For two (2) years from the date of this
Contract, no amendments to the City’s Comprehensive Plan or official controls shall apply to or
affect the residential use development density, lot size, lot layout or dedications of the approved
final 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
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Comprehensive Plan, official controls, platting or dedication requirements enacted after the date
of this Contract.
8. DEVELOPMENT PLANS. The plat shall be developed in accordance with the
following plans and at the Developer’s sole expense. The plans shall not be attached to this
Contract. If the plans vary from the written terms of this Contract, the written terms shall control.
The plans are:
Plan A - Final Plat
Plan B - Final Grading, Drainage, and Erosion Control Plans
Plan C - Final Sanitary Sewer, Water Main, Storm Sewer, and Street Plans
Plan D - Final Landscape Plan
9. IMPROVEMENTS. The Developer shall install and pay for the following:
A. Streets
B. Sanitary Sewer
C. Watermain
D. Surface Water Facilities (pipe, ponds, rain gardens, etc.)
E. Grading and Erosion Control
F. Sidewalks/Trails
G. Street Lighting
H. Underground Utilities
I. Street Signs and Traffic Control Signs
J. Landscaping and Street Trees
K. Tree Preservation and Reforestation
L. Wetland Mitigation and Buffers
M. Monuments Required by Minnesota Statutes
The improvements shall be installed in accordance with the City subdivision ordinance and the
City’s Engineering Design and Construction Standards Manual and pursuant to the direction of
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the City Engineer. 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’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 his engineer shall schedule a pre-construction
meeting at a mutually agreeable time at the City Hall with all parties concerned, including the City
staff, to review the program for the construction work.
All labor and work shall be done and performed in the best and most workmanlike manner
and in strict conformance with the approved plans and specifications. No deviations from the
approved plans and specifications will be permitted unless approved in writing by the City
Engineer. The Developer agrees to furnish to the City a list of contractors being considered for
retention by the Developer for the performance of the work required by the Contract. The
Developer shall not do any work or furnish any materials not covered by the plans and
specifications and special conditions of this Contract, for which reimbursement is expected from
the City, unless such work is first ordered in writing by the City Engineer as provided in the
specifications.
10. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION
OBSERVATION. Prior to the commencement of any construction activity authorized under this
agreement, the Developer shall submit an escrow for City Engineering Administration and
Construction Observation in an amount provided under paragraph 36. Summary of Cash
Requirements. Thereafter, the Developer shall reimburse the City each month, within 30 days of
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receiving an invoice, for all engineering administration and construction observation performed
during the construction of the plat at normal City rates for such Services. If Developer fails to pay
the invoiced amount within such 30-day period, and such failure continues for an additional five
(5) business days after written notice from the City of such failure, the City may draw upon the
escrow and stop the work on site until said escrow has been replenished in its full amount. City
engineering administration will include monitoring of construction progress and construction
observation, consultation with Developer and his engineer on status or problems regarding the
project, coordination for testing, final inspection and acceptance, project monitoring during the
warranty period, and processing of requests for reduction in security. Construction observation
may be performed by the City’s in-house staff or consulting engineer. Construction observation
shall include, at the discretion of the city, part or full time inspection of proposed public utilities
and street construction. Services will be billed on an hourly basis at normal City rates therefore.
The direction and review provided through the inspection of the improvements should not
be considered a substitute for the Developer required management of the development.
Developer will cause the contractor(s) to furnish the City with a schedule of proposed operations
at least five (5) days prior to the commencement of construction of each type of Improvement.
City shall inspect all Developer Installed Improvements during and after construction for
compliance with approved plans and specifications. Developer will notify the City Engineer at
such times during construction as the City Engineer requires for inspection purposes. Such
inspection is pursuant to the City’s governmental authority, and no agency or joint venture
relationship between the City and Developer is thereby created.
11. 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.
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12. PERMITS. The Developer shall obtain or require its contractors and
subcontractors to obtain all necessary permits, including but not limited to:
A. Right-of-Way Excavations and Obstructions:
• City of Lake Elmo, Right-of-Way Utility Installation(s)
• City of Lake Elmo, Right-of-Way Obstruction(s)
• Washington County, Utility Installations(s)
• Washington County, Street or Driveway Access(s)
• Minnesota Department of Transportation, Utility Installation
• Minnesota Department of Transportation, Right-of-Way Permit
B. Watermain Extensions:
• Minnesota Department of Health
C. Sanitary Sewer Extensions:
• Minnesota Pollution Control Agency
• Metropolitan Council Environmental Services
D. Stormwater Management:
• Valley Branch, Brown’s Creek or South Washington Watershed
District Permit
E. Erosion, Sedimentation Control:
• Minnesota Pollution Control Agency, General NPDES Stormwater Permit
• SWPPP (Stormwater Pollution Prevention Plan)
F. Wetland Mitigation:
• Board of Water and Soil Resources, WCA
G. Construction Dewatering:
• Minnesota Department of Natural Resources
13. TIME OF PERFORMANCE. The Developer shall install all required public
improvements by October 31, 2015, with the exception of the final wear course of asphalt on
streets. The Developer shall have the option of installing the wearing course of streets within one
(1) year following initial commencement of work on the required basic improvements or installing
it after the first course has weathered a winter season, consistent with warranty requirements,
however final acceptance of the improvements will not be granted until all work is completed
including the final wear course. 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
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the Developer to reflect cost increases and amending this agreement to reflect the extended
completion date. Final wear course placement outside of this time frame must have the written
approval of the City Engineer.
14. 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.
15. CONSTRUCTION ACCESS. Construction traffic access and egress for grading,
public utility construction, and street construction is restricted to access the
subdivision via the planned temporary access off of Lake Elmo Avenue. Once access to 5th Street
is opened all access to the site shall take place from 5th Street and the Lake Elmo Avenue
temporary access will be closed. No construction traffic is permitted on other adjacent local
streets.
16. CONSTRUCTION SEQUENCE AND COMPLIANCE. The City will require the
developer to construct the improvements in a sequence which will allow progress and compliance
points to be measured and evaluated. The Developer and/or their representatives are required
to supervise and coordinate all construction activities for all improvements and must notify the
City in writing stating when the work is ready for the inspection at each of the measurable points
defined in the following paragraphs 16., 17. and 18. For the purpose of this paragraph, Electronic
message (email) shall be deemed an acceptable method of notification provided it is captioned
“Notice pursuant to Development Agreement”.
17. 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. Erosion
control practices must comply with the approved plans and specifications for the plat, with all
watershed district permits and with Minnesota Pollution Control Agency’s Best Management
Practices. The City may impose additional erosion control requirements as deemed necessary.
The parties recognize that time is of the essence in controlling erosion. If the Developer does not
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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. 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 security 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.
If building permits are issued prior to the acceptance of public improvements, the
developer assumes all responsibility for erosion control compliance throughout the plat and the
City may take such action as allowed by this agreement against the Developer for any
noncompliant issue as stated above. Erosion control plans for individual lots will be required in
accordance with the City’s building permit requirements, or as required by the City or City
Engineer.
18. GRADING PLAN. The plat shall be graded in accordance with the approved
grading drainage and erosion control plan, Plan “B”. The plan shall conform to Engineering Design
and Construction Standards Manual. All grading shall be completed within the Subdivision prior
to the preparation and submittal of the as-constructed grading plan.
Within thirty (30) days after completion of the grading, the Developer shall provide the City
with a “record” grading plan certified by a registered land surveyor or engineer that all trails, ponds,
swales, and ditches have been constructed on public easements or land owned by the City. The
“record” plan shall contain site grades and field verified elevations of the following: a) cross
sections of ponds; b) location and elevations along all swales, emergency overflows, wetlands,
wetland mitigation areas if any, ditches, locations and dimensions of borrow areas/stockpiles; c)
lot corner elevations and house pads; and d) top and bottom of retaining walls. The City will not
issue any building permits until the approved certified record grading plan is on file with the City.
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19. STREET AND UTILITY IMPROVEMENTS. All storm sewers, sanitary sewers,
watermain, and streets shall be installed in accordance with the approved Plans and
Specifications for Public Improvements, Plan “D”. The plan shall conform to the City’s Engineering
Design and Construction Standards Manual. Curb and gutter and the first lift of the bituminous
streets, sidewalks, the boulevards graded, street signs installed, and all restoration work on the
site shall be completed in accordance with the approved plans. Once the work is completed, the
developer or its representative shall submit a written request to the City asking for an inspection
of the initial improvements. The City will then schedule a walk- through to create a punch list of
outstanding items to be completed. Upon receipt of the written punch list provided by the City,
the punch list items must be completed by the Developer and the City notified to re- inspect the
improvements. The final bituminous wear course may be installed in accordance with paragraph
12. above.
20. STREET MAINTENANCE DURING CONSTRUCTION. The Developer shall
be responsible for all street maintenance until the streets are accepted by the City in writing.
Warning signs shall be placed when hazards develop in streets to prevent the public from traveling
on same and to direct attention to detours. If and when streets become impassable, such streets
shall be barricaded and closed. In the event residences are occupied prior to completing streets,
the Developer shall maintain a smooth surface and provide proper surface drainage to insure that
the streets are passable to traffic and emergency vehicles. The Developer shall be responsible
for keeping streets within and without the subdivision clean of dirt and debris that may spill, track,
or wash onto the street from Developer’s operation. The Developer may request, in writing, that
the City keep the streets open during the winter months by plowing snow from the streets prior to
final acceptance of said streets. The City shall not be responsible for repairing the streets
because of snow plowing operations. Providing snow plowing service does not constitute final
acceptance of the streets by the City. The Developer shall contract for street cleaning within and
immediately adjacent to the development. At a minimum, scraping and sweeping shall take place
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on a weekly basis. A copy of this contract shall be approved by the City before grading is started.
The contract shall provide that the City may direct the contractor to clean the streets and the
contractor will bill the Developer.
21. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and
construction required by this Contract, the improvements lying within public easements shall
become City property. Prior to acceptance of the improvements by the City, the Developer must
furnish the City with a complete set of reproducible “record” plans, an electronic file of the “record”
plans in accordance with the City’s Engineering Design and Construction Standards Manual
together with the following affidavits:
- Developer/Developer Engineer’s Certificate
- Land Surveyor’s Certificate
certifying that all construction has been completed in accordance with the terms of this Contract.
All necessary forms will be furnished by the City. Upon receipt of “record plans” and affidavits,
and upon review and verification by the City Engineer, the City Engineer will accept the completed
public improvements.
22. PARK DEDICATION. The Developer shall pay a cash contribution of
$__________ in satisfaction of the City’s park dedication requirements. This charge is based on
the park dedication requirement for all the areas to be platted within the Hunters Crossing Plat.
No additional fees in lieu of land dedication will be charged for future developments within the
preliminary plat area. The charge was calculated as follows: _______ acres (______ acres of
park land provided subtracted from _______ acres of park land required) at $__________ per
acre per the City’s appraisal for the property.
23. SANITARY SEWER AND WATER UTILITY AVAILABILITY CHARGES (SAC
AND WAC). The Developer shall be responsible for the payment of all sewer availability charges
(SAC) and all water availability charges (WAC) with respect to the Improvements required by the
City and any state or metropolitan government agency. Consistent with a previous agreement
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with the City, the developer shall be responsible for paying the WAC fees for the entire subdivision
(including all future phases).
The sewer availability charge (SAC) in the amount of $3,000.00 per REU shall be paid by
the Developer prior to the City recording the final plat. The total amount to be paid by the
Developer is $66,000.
The water availability charge (WAC) in the amount of $3,000.00 per REU for the entire
subdivision area shall be paid by the Developer prior to the City recording the final plat. The total
amount to be paid by the Developer is $153,000.
In addition, a sewer connection charge in the current amount of $1,000.00 per REU, a Met
Council sewer availability charge in the current amount of $2,435.00 per REU, and a water
connection charge in the current amount of $1,000.00 per REU will be collected by the City at the
time the building permit is issued for each lot. These amounts are charged at the time of building
permit in accordance with the latest city fee schedule.
24. TRAFFIC CONTROL SIGNS. Traffic control signs shall be included as part of the
public street improvements, and the installation costs shall be included in the street construction
calculations.
25. STREET LIGHTS. The Developer is responsible for the installation of street lights
consistent with a street lighting plan approved by the City. The Developer shall coordinate the
installation of street lights with Xcel Energy in conjunction with the other improvements, and
agrees to pay Xcel Energy for all upfront costs associated with the street lighting system, including
underground cables, posts, lamps, ballasts, starters, photocells, and glassware. All street lights
will be leased by the City upon final acceptance of the system. The Developer shall also pay
$_________ in payment for the first year operating costs for street lights (# of poles x $6.94 x 12).
26. WETLAND MITIGATION. The Developer shall either (i) complete wetland
mitigation/restoration in accordance with the approved Plans and Specifications and in
accordance with any applicable Watershed or agency Permits or (ii) purchase or otherwise obtain
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applicable wetland credits in lieu of mitigation. If any mitigation work performed by Developer is
found to be incomplete or restoration is unsuccessful and if Developer fails to remedy such default
within fifteen (15) days after written notice from the City (provided, however, that in the event of a
bona fide emergency, the City shall only be required to give such notice as is practicable under
the circumstances) the City may draw down the security at any time during the warranty period if
the Developer fails to take corrective measures to be used by the City to perform the work.
27. BUILDING PERMITS/CERTIFICATES OF OCCUPANCY.
A. Public sewer and water, curbing, and one lift of asphalt shall be installed
on all public and private streets prior to issuance of any building permits, except one model home
on a lot acceptable to the Community Development Director.
B. Prior to issuance of building permits, wetland buffer monuments shall be
placed in accordance with the City’s zoning ordinance if applicable. The monument design shall
be approved by the Community Development Department.
C. Written certification of the as-constructed grading must be on file at the City
for the block where the building is to be located.
D. Breach of the terms of this Contract by the Developer, including
nonpayment of billings from the City, shall be grounds for denial of building permits and/or
withholding of other permits, inspection or actions, including lots sold to third parties, and the
halting of all work in the plat.
E. 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, their
contractors, subcontractors, materialmen, employees, agents, or third parties.
F. No sewer and water connection permits may be issued until the streets
needed for access have been paved with a bituminous surface and the utilities are tested and
approved by the City Engineer.
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G. The City will not issue a certificate of occupancy for any building
constructed on any lot or parcel in the Plat, including any model homes authorized under this
agreement, until Public sewer and water, curbing, and one lift of asphalt is installed on all public
and private streets; all utilities are tested and approved by the City Engineer; and the
as- constructed grading must be on file at the City for the block where the building is to be located.
28. RESPONSIBILITY FOR COSTS.
A. 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 paid,
and the laborers, materialmen, or others are seeking payment from the City, and in the future
event that such claims have not been resolved by Developer within thirty (30) days after written
notice from the City, the Developer hereby authorizes the City to commence an Interpleader
action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Courts, to draw
upon the letters of credit in an amount up to 125 percent of the claim(s) and deposit the funds in
compliance with the Rule, and upon such deposit, the Developer shall release, 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 payment of attorneys’
fees pursuant to this Contract.
B. 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 legal, planning, engineering and 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, all at normal City rates therefor. All amounts incurred and due at the
time, must be fully paid prior to execution and release of the final plat for recording.
C. 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
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resulting from plat 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 reasonable attorneys’ fees.
D. The Developer shall reimburse the City for costs incurred in the
administration and enforcement of this Contract, including reasonable 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. Bills not paid within
thirty (30) days shall be assessed a late fee per the City of Lake Elmo adopted Fee Schedule.
Upon request, the City will provide copies of detailed invoices of the work performed.
29. SPECIAL PROVISIONS. The following special provisions shall apply to plat
development:
A. Implementation of the recommendations listed in the September 3, 2014
Engineering memorandum.
B. Within 30 days of the plat being recorded with Washington County, the
Developer shall convey Outlots A, B and E to the City by warranty deed, free and clear of any and
all encumbrances.
C. The Developer must obtain a sign permit from the City Building Official prior
to installation of any permanent subdivision identification signs.
D. The developer shall provide written authorization satisfactory to the City
from the property owner to the east of Hunters Crossing to allow the proposed drainage
improvements and discharge of storm water on to their property in addition to a utility easement
across the affected property for said improvements.
E. The Developer shall enter into a maintenance agreement with and
satisfactory to the City that clarifies the individuals or entities responsible for any landscaping
installed in areas outside of land dedicated as public park and open space on the final plat.
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F. Any land under which public trails are located will be accepted as park land
provided the Developer constructs said trails within the dedicated areas as part of the public
improvements for the subdivision and easements are provided where required by the City.
G. The City will not issue building permits for more than 25 lots within Hunter’s
Crossing until such time that the temporary access is closed and access to 5th Street is provided.
H. The final construction plans for any additional final plat within Hunter’s
Crossing shall include, at a minimum, the southern portion of 5th Street. At this time these plans
are prepared they shall include the construction of all improvements within the Lake Elmo Avenue
(CSAH 17) right-of-way as required by Washington County and further described in the review
letter received from the County dated September 2, 2014
30. MISCELLANEOUS.
A. 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.
B. 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 City Engineer evidencing that the retaining wall was constructed
in accordance with the approved plans and specifications. All retaining walls identified on the
development plans or 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.
C. Appropriate legal documents regarding Homeowner Association
documents, covenants and restrictions relating to the plat approval and outlots and conveyances,
as approved by the City Attorney, shall be filed within 30 days of the recording of the final plat
with the Washington County Recorder’s Office. No third- party beneficiary status is hereby
conferred. All outlots and common areas, including Outlots C and D shall be maintained in good
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order and repair by a homeowner’s association, and if it does not do so, then the City may perform
the work and assess the costs against the individual lots within the plat of Hunters Crossing and
without regard to the formalities or requirements of Minn. Stat. § 429.
D. Developer 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, public liability
and property damage insurance covering personal injury, including death, and claims for property
damage which may arise out of Developer’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
plat. The certificate shall provide that the City must be given thirty (30) days advance written
notice of the cancellation of the insurance.
E. Third parties shall have no recourse against the City under this Contract.
F. 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.
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 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. The Developer covenants with the City, its successors and assigns, that the
Developer has fee title to 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
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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. 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.
J. 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.
31. EVENTS OF DEFAULT. The following shall be “Events of Default” under this
Agreement and the term “Event of Default” shall mean, whenever it is used in this Agreement,
any one or more of the following events:
A. Subject to unavoidable delays, failure by Developers to commence and
complete construction of the Public Improvements pursuant to the terms, conditions and
limitations of this Agreement and the continuance of such failure for a period of thirty (30) days
after written notice thereof (provided, however, that in the event of a bona fide emergency, the
City shall only be required to give such notice as is practicable under the circumstances).
B. Failure by Developers to substantially observe or perform any material
covenant, condition, obligation or agreement on their part to be observed or performed under this
Agreement and the continuance of such failure for a period of thirty (30) days after written notice
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thereof (provided, however, that in the event of a bona fide emergency, the City shall only be
required to give such notice as is practicable under the circumstances).
32. REMEDIES ON DEFAULT. Whenever any Event of Default occurs, the City,
subject to any rights of third parties agreed to by the City pursuant to this Agreement, or otherwise
by written, executed instrument of the City, may take any one or more of the following:
A. The City may suspend its performance under the Agreement until it
receives assurances from Developers, deemed adequate by the City, that Developers will cure
their default and continue their performance under the Agreement. Suspension of performance
includes the right of the City to withhold permits including, but not limited to, building permits.
B. The City may initiate such action, including legal or administrative action,
as is necessary for the City to secure performance of any provision of this agreement or recover
any amounts due under this Agreement from Developers, or immediately draw on the Letter of
Credit, as set forth in this Agreement. In the event of any uncorrected failure to maintain any
common area or landscape areas, the City may undertake to do the work and assess the costs
to the individual lots within the plat without regard to the formalities or requirements of Minn. Stat.
§ 429..
33. ENFORCEMENT BY CITY; DAMAGES. The Developer acknowledges the right
of the City to enforce the terms of this Agreement against the Developer, by action for specific
performance or damages, or both, or by any other legally authorized means. The Developer also
acknowledges that its failure to perform any or all of its obligations under this Agreement may
result in substantial damages to the City; that in the event of default by the Developer, the City
may commence legal action to recover all damages, losses and expenses sustained by the City;
and that such expenses may include, but are not limited to, the reasonable fees of legal counsel
employed with respect to the enforcement of this Agreement.
34. WARRANTY. The Developer warrants all improvements required to be
constructed by it pursuant to this Contract against poor material and faulty workmanship. The
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Developer shall submit either a cash deposit or letter of credit for twenty-five percent (25%) of the
amount of the original cost of the improvements.
A. The required warranty period for materials and workmanship for the utility
contractor installing public sewer and water mains shall be two (2) years from the date of final
written City acceptance of the work.
B. The required warranty period for all work relating to street construction,
including concrete curb and gutter, sidewalks and trails, materials and equipment shall be subject
to one (1) year from the date of final written acceptance, unless the wearing course is placed
during the same construction season as the bituminous base course. In those instances, the
Developer shall guarantee all work, including street construction, concrete curb and gutter,
sidewalks and trails, material and equipment for a period of two (2) years from the date of final
written City acceptance of the work.
C. The required warranty period for sod, trees, and landscaping is two growing
seasons following installation.
D. The required warranty for landscaping within storm water infiltration areas
(Outlots A and E) shall be three (3) years following installation. The developer shall also enter
into a funded maintenance agreement with the City for a period of three (3) years prior to
acceptance of the landscaping for within these storm water infiltration areas. Said maintenance
agreement shall include requirements for the proper care of native plantings and the elimination
of weeds and invasive species.
35. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the
terms of this agreement, 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 an irrevocable letter of credit, in the form attached hereto, from a bank, cash escrow or a
combination cash escrow and Letter of Credit (“security”) for $ 1,004,402. The amount of the
security was calculated as follows:
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CONSTRUCTION COSTS:
Streets $232,526
Sanitary Sewer $150,984
Watermain $175,893
Surface Water Facilities (pipe, ponds, rain gardens, etc.) $152,565
Grading $NA –With Grading Permit [Include estimate, will replace grading permit]
Erosion Control $NA –With Grading Permit [Include estimate, will replace grading permit]
Sidewalks/Trails $Included in Streets [Breakout separately from streets]
Street Lighting Xcel to Install, to be pre-paid directly
by developer
Street Signs and Traffic Control Signs $2,400
Landscaping $36,900 [Update to include seeding,
sodding, mulch, and infiltration basin restoration]
Tree Preservation and Restoration $NA –With Grading Permit [Include
estimate, will replace grading permit]
Wetland Mitigation and Buffers Separate letter of credit through Watershed District
Monuments $1,980
Pond Filtration $47,774
Developer’s Record Drawings $2,500
Construction Sub-Total $803,522
Total Project Securities (at 125% Construction Costs) $1,004,402
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, without notice, for any violation of the terms of this Contract or if the security is allowed
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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. If the security is drawn down, the proceeds shall be used to cure the default.
36. REDUCTION OF SECURITY. Upon written request by the Developer and upon
receipt of proof satisfactory to the City Engineer that work has been completed and financial
obligations to the City have been satisfied, with City Engineer approval the security may be
reduced as follows:
A. Up to 50%, or $502,201of the security provided in accordance with
paragraph 32. above may be released when: (1) Developer’s obligations under this Agreement
have been completed and the Public Improvements have been found to be complete to the
satisfaction of the City including all corrective work for any identified punch list items, but not
including the final wear course; and (2) completion of the Improvements is done to the satisfaction
of the City and evidence of such is provided by the City in writing and satisfactory evidence of
payment, such as lien waivers are provided.
B. Up to an additional 25%, or $251,100 of the security provided in
accordance with paragraph 32. above may be released when: (1) Developer’s obligations under
this Agreement have been completed and the Improvements have been found to be complete to
the satisfaction of the City including all corrective work for any identified punch list items and
including the final wear course; and (2) Improvements are accepted by the City in writing and
satisfactory evidence of payment, such as lien waivers, are provided.
C. Twenty percent (25%) of the amounts certified by the Developer’s engineer
shall be retained as security until: (1) all improvements have been completed, (2) iron monuments
for lot corners have been installed, (3) all financial obligations to the City satisfied, (4) the required
“record” plans have been received and approved by the City, (5) a warranty security is provided,
and (6) the public improvements are accepted by the City.
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37. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash
requirements under this Contract which must be furnished to the City at the time of final plat
approval:
Sewer Availability Charge (SAC) $66,000
Water Availability Charge (WAC) $153,000
Park Dedication $________
Street Light Operating Fee $________
City Base Map Upgrading $550
City Engineering Administration Escrow $50,000 (Based on two months of administration/observation)
Total Cash Requirements $________
38. 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: 7599 Anagram Drive, Eden Prairie, MN 55344. 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: Lake Elmo
City Hall, 3800 Laverne Avenue N. Lake Elmo, Minnesota 55042.
39. EVIDENCE OF TITLE. Developer shall furnish the City with evidence of its fee
ownership of the property being platted by way of an attorney’s title opinion or title insurance
policy dated not earlier than thirty (30) days prior to the execution of the plat.
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CITY OF LAKE ELMO
By: , Mayor (SEAL) AND , City Clerk
DEVELOPER: THE RYLAND GROUP, INC.
By: Its:
24
STATE OF MINNESOTA ) ( ss.
COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this day of __________, 2____, by ____________________ and by ____________________, the Mayor and City Clerk of the City of Lake Elmo, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council.
NOTARY PUBLIC
STATE OF MINNESOTA ) ( ss. COUNTY OF )
The foregoing instrument was acknowledged before me this _____ day of __________, 2014, by The Ryland Group, Inc., a Maryland corporation, for and on behalf of the corporation.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo
3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
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FEE OWNER CONSENT
TO DEVELOPMENT CONTRACT
________________________________________, 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 subject property owned by them.
Dated this ____ day of __________, 2____.
STATE OF MINNESOTA ) ( ss.
COUNTY OF ) The foregoing instrument was acknowledged before me this _____ day of __________, 2____, by ______________________________.
NOTARY PUBLIC DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
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MORTGAGE CONSENT
TO DEVELOPMENT CONTRACT
________________________________________, which holds a mortgage on the subject property, the development of which is governed by the foregoing Development Contract, agrees that the Development Contract shall remain in full force and effect even if it forecloses on its mortgage.
Dated this _____ day of __________, 2____.
STATE OF MINNESOTA )
( ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ____ day of __________, 2___, by ______________________________.
NOTARY PUBLIC DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
A-1
EXHIBIT “A”
TO DEVELOPMENT CONTRACT
Legal Description of Property Being Final Platted as Hunters Crossing ______________________________
IRREVOCABLE LETTER OF CREDIT
No. ______________ Date: ____________
TO: City of Lake Elmo 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 at its offices in Minnesota.
The draft must:
a) Bear the clause, “Drawn under Letter of Credit No. __________, dated __________, 2____, of (Name of Bank)“;
b) Be signed by the Mayor or City Administrator of the City of Lake Elmo.
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 sixty (60) days prior to the next annual renewal date (which shall be November 30 of each year), the Bank delivers written notice to the Lake Elmo City Administrator 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 sixty (60) days prior to the next annual renewal date addressed as follows: City Administrator, City Hall, 3800 Laverne Ave. N. Lake Elmo Minnesota 55042 and is actually
received by the City Administrator at least forty-five (45) 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. 500.
We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly honored upon presentation.
By: Its:
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