HomeMy WebLinkAboutItem 12 - Boulder Ponds Development Agreement
(reserved for recording information)
DEVELOPMENT CONTRACT
(Site grading, public sewer and water) Boulder Ponds
THIS DEVELOPMENT CONTRACT (the “Contract”) dated
, 2015, is entered into by and between the CITY OF LAKE ELMO, a Minnesota municipal
corporation (“City”), and OP4 Boulder Ponds, LLC (the “Developer”).
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve the
plat for Boulder Ponds (referred to in this Contract as the "plat"). The land is situated in the County of
Washington, State of Minnesota, and 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 as and when 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 improvements, or any buildings
until all the following conditions have been satisfied: 1) this Contract 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 and 1
required homeowner’s association documents have 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. 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. Park charges and area charges for
sewer and water 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 unless previously paid as part
of an earlier development phase.
5. 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.
6. 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 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 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 of this Contract 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
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Plan D – Final Landscape Plan 8. 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 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
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and the Developer's contractor. The Developer or its 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.
9. 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 receiving an invoice, for all engineering
administration and construction observation performed during the construction of the plat. If the amounts
remain unpaid after 30 days of the date of the invoice, 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 its 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.
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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.
10. 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.
11. 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)
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F. Wetland Mitigation:
• Board of Water and Soil Resources, WCA
G. Construction Dewatering:
• Minnesota Department of Natural Resources 12. TIME OF PERFORMANCE. The Developer shall install all required public improvements
by October 31, 2016, 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 the Developer to reflect cost increases and amending this Contract to
reflect 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. CONSTRUCTION ACCESS. Construction traffic access and egress for grading, public
utility construction, and street construction is restricted to access the subdivision via
the planned construction access off of Hudson Boulevard North. No construction traffic is permitted on
other adjacent local streets.
15. 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 its 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
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deemed an acceptable method of notification provided it is captioned “Notice pursuant to Development
Agreement”.
16. 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 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 after
submitting an invoice for such costs, the City may draw down the security to pay any costs incurred by the
City. 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 until such time as the public
improvements are accepted and the City may take such action as allowed by this Contract 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.
17. 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
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"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.
18. 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 "C". 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.
19. 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
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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 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.
20. 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.
21. PARK DEDICATION. The Developer shall pay a cash contribution of $143,648.38
in satisfaction of the City's park dedication requirements. This charge is based on the park dedication
requirement for all the residential areas to be platted within Boulder Ponds Preliminary Plat. No additional
fees in lieu of land dedication will be charged for future residential developments within the preliminary plat
area. The charge was calculated as follows: 2.57 acres (1.77 acres of park land provided subtracted from
4.34 acres of park land required) at $55,894.31 per acre per the agreed upon appraisal for the property.
22. SANITARY SEWER AND WATER UTILITY AVAILABILITY CHARGES (SAC
AND WAC). The Developer shall be responsible for the payment of all sewer availability charges (SAC)
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and all water availability charges (WAC) with respect to the Improvements required by the City and any
stat or metropolitan government agency. 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 SAC
amount to be paid by the Developer is $141,000. The water availability charge (WAC) 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
WAC amount to be paid by the Developer is $141,000. 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.
23. 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.
24. 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 $916.08 in payment for the first year
operating costs for street lights.
25. WETLAND MITIGATION. The Developer shall complete wetland mitigation/restoration
in accordance with the approved Plans and Specifications and in accordance with any applicable Watershed
or agency Permits. If the mitigation work is found to be incomplete or restoration is unsuccessful the City
may draw down the security at any time during the warranty period to be used by the City to perform
the work if the Developer fails to perform the work.
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26. 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 two model homes on lots
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. 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.
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; the as-constructed grading must be on file at the City for
the block where the building is to be located; and the required homeowner’s association documents have
been recorded with the Washington County Recorder's Office.
27. RESPONSIBILITY FOR COSTS.
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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, 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 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 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 attorneys' fees.
D. The Developer shall reimburse the City for costs incurred in the enforcement of this
Contract, including reasonable engineering and attorneys' fees.
E. 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.
F. The Developer shall pay in full all bills submitted to it by the City for obligations
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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’s adopted Fee Schedule. Upon request, the City will provide copies
of detailed invoices of the work performed.
28. CITY PAYMENTS. In the event City payments are required by Section 28.A below,
within thirty (30) days of the City’s final acceptance of the Improvements, pursuant to Section 20 of the
Contract, but only if the Developer is not in default to this Contract, the City shall pay to the Developer
the sums set forth in the attachment to this Contract as Exhibit B. The actual amount of the
reimbursement shall be based on actual construction costs which will be verified by the Developer to the
City in the Plans submitted to the City as required in Section 20. This payment by the City shall be the
City’s only responsibility with regard to construction of the Improvements and in no case shall act as a
waiver of any other right of the City under this Contract or under applicable laws, ordinances or rules.
A. City payments pursuant to this Contract shall be: $20, 633.55.
29. SPECIAL PROVISIONS. The following special provisions shall apply to plat
development:
A. Implementation of the recommendations listed in the March 4, 2015 and
March 13, 2015 Engineering memorandums.
B. Before the City signs the final plat, the Developer shall convey Outlots D, E, G, I
and L to the City by warranty deed, free and clear of any and all encumbrances.
C. The Developer shall install a temporary turnaround on any streets that will be
extended into adjacent developments in the future as directed by the City Engineer.
D. The Developer must obtain a sign permit from the City Building Official prior to
installation of any permanent subdivision identification signs.
E. The Developer shall provide for a minimum green belt/buffer of 100 feet around all
of the adjacent Stonegate subdivision. This buffer shall be secured by a covenant running in favor of the
City.
F. All trails shall be located within the easements or dedicated to the City. Title
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commitments shall be provided for all land so dedicated.
G. The Developer shall enter into a maintenance agreement with 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.
H. Any unencumbered 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.
I. (Other requirements).
30. MISCELLANEOUS.
A. The Developer may not assign this Contract without the written permission of the
City. 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 with the final plat. . No third- party beneficiary status is hereby
conferred. All outlots (except Outlots D, E, G, I and L) and common areas, including Outlots C, H, J and
K, shall be maintained in good order and repair by the Developer or a homeowner’s association
depending on which party owns the applicable Outlot, and, they it do not do so when requested by the
City, then the City may perform the work and assess the costs against the Developer or the individual
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lots within the plat of Boulder Ponds, as applicable, 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 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.
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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
Contract.
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 Contract.
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 Contract, 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 this Contract until it receives
assurances from Developer, deemed adequate by the City, that Developer will cure its default and
continue its performance under this Contract. Suspension of performance includes the right of the City to
withhold permits including, but not limited to, building permits.
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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 Contract or recover any amounts
due under this Contract from Developer, or immediately draw on the Letter of Credit, as set forth in this
Contract. 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 Contract 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 their obligations under this Contract 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 Contract.
34. WARRANTY. The Developer warrants all improvements required to be constructed by it
pursuant to this Contract against poor material and faulty workmanship. The Developer shall submit either
a letter of credit or cash escrow or a combination cash escrow and letter of credit in the amount of 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 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.
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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 (Outlot D
and Outlot J) shall be three (3) years following installation. The Developer shall also enter into a
maintenance agreement with the City for a period of three (3) years prior to acceptance of the landscaping
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 Contract, 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 $3,610,725.87. The amount of the security was calculated as follows:
CONSTRUCTION COSTS:
Streets (includes Sidewalks/Trails & Street Signs/ Traffic Control Signs)
$ 1,084,326.92
Sanitary Sewer
$ 405,450.61
Watermain $349,673.91
Surface Water Facilities (pipe, ponds, rain gardens, etc.)
$ 721,027.26
Grading
$68,194.00
Erosion Control $48,406.00
Street Lighting
Xcel to Install, to be pre-paid directly by Developer
Landscaping
$ 204,302.00
Tree Preservation and Restoration
$0 (included with Erosion Control)
Wetland Mitigation and Buffers
Separate letter of credit through Watershed District
Monuments
$4,700.00 (100 per single family lot; $50 per townhome lot)
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Miscellaneous Facilities N/A
Developer’s Record Drawings
$2,500
Construction Sub-Total $ 2,888,580.70
Total Project Securities (at 125% Construction Costs) $ 3,610,725.87
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 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 $1,805,362.94 of the security provided in accordance with
paragraph 34. above may be released when: (1) Developer’s obligations under this Contract 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 $902,681.48 of the security provided in
accordance with paragraph 34. above may be released when: (1) Developer’s obligations under this
Contract 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) the improvements are accepted by the City in writing and satisfactory evidence of
payment, such as lien waivers, are provided.
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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.
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)
$141,000.00
Water Availability Charge (WAC)
$141,000.00
Park Dedication
$143,648.38
Street Light Operating Fee
$916.08
City Base Map Upgrading
$1,175.00
City Engineering Administration
Escrow
$50,000 (Based on two months of
administration/observation)
Total Cash Requirements $477,739.46
Less Credit for 5th Street ROW
Acquisition Costs
Adjusted Total Cash Requirements
$41,846.00
$435,893.46
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: 11455 Viking Drive, Suite 350, 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
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than thirty (30) days prior to the execution of the plat.
CITY OF LAKE ELMO (SEAL)
BY:
, Mayor
AND
, City Clerk
STATE OF MINNESOTA )
( ss. COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this day of , 2015, 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
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DEVELOPER:
BY: Its
STATE OF MINNESOTA )
( ss. COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2 , by
the
of OP4 Boulder Ponds, LLC, a Minnesota limited liability company.
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
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EXHIBIT “A” TO
DEVELOPMENT CONTRACT
Legal Description of Property Being Final Platted as Boulder Ponds
That part of the East Half of the Northwest Quarter of the Southwest Quarter and the West Half of the West Half of the Southwest Quarter in Section 34, Township 29, Range 21, Washington County, Minnesota, lying
North of the North line of Minnesota Department of Transportation Right of Way Plat No. 82-43 filed March 22, 1982, as Document No. 429592.
AND
That part of the East Half of the Southwest Quarter of Section 34, Township 29, Range 21,Washington County, Minnesota as described as commencing at the northwest corner of said East Half of the Southwest
Quarter; thence South 00 degrees 02 minutes 55 seconds West, assumed bearing, along the west line of
said East Half a distance of 7S6.99 feet to the point of beginning of the parcel to be described; thence South 16 degrees 08 minutes SS seconds East, along the centerline of the pipeline Easement described in
Document No. 3172091, a distance of 437.96 feet; thence South 89 degrees 55 minutes 22 seconds West
a distance of 122.17 feet to said west line of said East Half; thence North 00 degrees 02 minutes SS seconds East along said west line a distance of 420.85 feet to the point of beginning.
AND
That part of Lot l, Block 1, Eagle Point Business Park 3rd Addition, Washington County, Minnesota described as beginning at the northeast corner of said Lot l, Block 1; thence South 89 degrees 38 minutes
02 seconds West, assumed bearing, along the north line of said Lot 1 a distance of 28.08 feet; thence
South 03 degrees 47 minutes 08 seconds East a distance of 426.49 feet to the east line of said Lot 1; thence North 00 degrees 00 minutes 40 seconds West along said east line of Lot 1 a distance of 425.74
feet to the point of beginning.
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EXHIBIT “B” TO
DEVELOPMENT CONTRACT
City Oversizing Payment Calculation
Boulder Ponds Phase I - Oversizing Sanitary Sewer
Costs based on Enebak's Unit Pricing 3/5/15
Preliminary Final Preliminary Final
Description Unit Quan Quan Unit Price Total Total
SANITARY SEWER
8" PVC SDR35 (10' - 12') LF 372 0 $ 27.13 $ 10,092.36 $ -
8" PVC SDR35 (12' - 14') LF 225 0 $ 27.63 $ 6,216.75 $ -
8" PVC SDR35 (14' - 16') LF 52 0 $ 28.13 $ 1,462.76 $ -
8" PVC SDR35 (16' - 18') LF 130 0 $ 78.53 $ 10,208.90 $ -
8" PVC SDR35 (18' - 20') LF 235 0 $ 78.53 $ 18,454.55 $ -
8" PVC SDR26 (20' - 22') LF 200 0 $ 78.53 $ 15,706.00 $ -
8" PVC SDR26 (22' - 24') LF 186 0 $ 78.53 $ 14,606.58 $ -
8" PVC SDR26 (24' - 26') LF 180 0 $ 78.53 $ 14,135.40 $ -
8" PVCSDR26 (26' - 28') LF 295 0 $ 78.53 $ 23,166.35 $ -
8" PVCSDR26 (28' - 30') LF 308 0 $ 78.53 $ 24,187.24 $ -
12" PVC SDR35 (10' - 12') LF 0 372 $ 33.90 $ - $ 12,610.80
12" PVC SDR35 (12' - 14') LF 0 225 $ 34.40 $ - $ 7,740.00
12" PVC SDR35 (14' - 16') LF 0 52 $ 34.90 $ - $ 1,814.80
12" PVC SDR35 (16' - 18') LF 0 130 $ 85.30 $ - $ 11,089.00
12" PVC SDR35 (18' - 20') LF 0 235 $ 85.30 $ - $ 20,045.50
12" PVC SDR26 (20' - 22') LF 0 200 $ 87.86 $ - $ 17,572.00
12" PVCSDR26 (22' - 24') LF 0 186 $ 89.86 $ - $ 16,713.96
12" PVCSDR26 (24' - 26') LF 0 180 $ 89.86 $ - $ 16,174.80
12" PVCSDR26 (26' - 28') LF 0 295 $ 89.86 $ - $ 26,508.70
12" PVCSDR26 (28' - 30') LF 0 308 $ 92.86 $ - $ 28,600.88
Oversizing Difference
$ 138,236.89 $ 158,870.44 $ 20,633.55
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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 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 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 forty-five (45) 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 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. 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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