HomeMy WebLinkAbout# 13 - CC Report Wildflower Developers Agreement 8-4-15
MAYOR & COUNCIL COMMUNICATION
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DATE: 8/4/15
REGULAR
ITEM # 13 RESOULTION 2015-063
AGENDA ITEM: Wildflower at Lake Elmo (Phase 1) Developer’s Agreement
SUBMITTED BY: Kyle Klatt, Community Development Director
THROUGH: Clark Schroeder, Interim City Administrator
REVIEWED BY: Jack Griffin, City Engineer Dave Synder, City Attorney
SUGGESTED ORDER OF BUSINESS:
- Introduction of Item .....................................Community Development Director
- Report/Presentation………………………...Community Development Director
- Questions from Council to Staff ............................................. Mayor Facilitates
- Call for Motion ............................................................... Mayor & City Council
- Discussion ....................................................................... Mayor & City Council
- Action on Motion .................................................................... Mayor Facilitates
POLICY RECCOMENDER: Staff is recommending that the City Council approve a
developer’s agreement associated with the first phase of the Wildflower at Lake Elmo development. The agreement has been drafted based on the model agreement previously reviewed by the Council.
FISCAL IMPACT: Direct Payments to Developer – TBD: the project development plans
include some oversizing of water and sewer lines. The City is reviewing the developer’s estimates for the oversizing costs, and is asking that the amount as currently included in the agreement be subject to review and approval by the City Engineer. Future financial impacts
include maintenance of streets, trails, sanitary sewer mains, watermains and other public
infrastructure, maintenance of storm water ponding areas (after three years), monthly lease
payments for street lights, and other public financial responsibilities typically associated with a new development. The agreement requires a payment from the developer for AUAR cost reimbursement constituent with the City’s fee schedule.
City Council Meeting [Regular Agenda Item 13]
August 4, 2015
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SUMMARY AND ACTION REQUESTED: The City Council is being asked to authorize
execution of a developer’s agreement for the first phase of the Wildflower at Lake Elmo. The
attached agreement has been reviewed by the City Staff, and all recommend changes specific to
the Wildflower project have been incorporated into the document as drafted. This agreement must be executed before any construction activity, outside of the previously authorized grading
work, may proceed on the site. The recommended motion to take action on the request is as
follows:
“Move to adopt Resolution 2015-063 approving the developer’s agreement for Wildflower at Lake Elmo”
LEGISLATIVE HISTORY/STAFF REPORT: One of the conditions attached to the
resolution approving the Wildflower Final Plat and Plan specifies that the developer enter into a
Developer’s Agreement prior to the execution of the plat by City officials. Staff has drafted such an agreement consistent with the City’s developer’s agreement template, and this document is
attached for consideration by the City Council. Please note that the document as drafted contains
some modifications to the original template based on some of the unique aspects of the
Wildflower development. The key aspects of the agreement include the following components:
• That all improvements to be completed by November 30, 2016.
• That the developer provide a letter of credit in the amount of $4,552,426 related to the cost of the proposed improvements.
• That the developer provide a cash deposit of $426,050 for SAC and WAC charges, engineering administration, one year of street light operating costs and other City fees. These fees include the AUAR fee of $230 per unit which is required for all projects
within the Village Planning Area and intended to reimburse the City’s for its expenses in
preparing the Village AUAR.
• The agreement includes no required park fees in lieu of land dedication. The developer is
asking that the proposed park land, trail, and preservation areas be accepted for all
required park dedications.
• A City payment for utility oversizing of $49,915. The calculations for this amount are
still being reviewed by the City Engineer. Staff is recommending that approval of the
agreement be conditioned upon the review and approval of the oversizing payment by the City Engineer.
• The agreement includes the updated letter of credit reduction schedule that was approved
for recent projects and provides for a better connection between the work that will be occurring in the field and the timing of this work.
City Council Meeting [Regular Agenda Item 13]
August 4, 2015
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The City Engineer has not approved the final construction plans for the project, and no work will
be allowed to commence on the site until these plans are approved by the City (this plan review
is close to being completed).
BACKGROUND INFORMATION (SWOT):
Strengths: The developer’s agreement has been drafted to guarantee that the
improvements associated with the Wildflower development plans will installed in
accordance with City specifications.
Execution of the developer’s agreement and compliance with all conditions in the
agreement will allow the developer to record the Final Plat.
The proposed first phase improvements include the extensive trail system that will
provide a significant amenity to this development and the surrounding areas.
Weaknesses: The City will assume responsibility for future maintenance of the public improvements.
Opportunities: The proposed improvements will provide for infrastructure connections
to adjacent properties, and in particular, will include a stub to extended sewer service
north of the project site.
Threats: The City will need to provide construction observation throughout the course of the project (these costs will be covered under an Engineering Administration Escrow).
RECOMMENDATION: Based on the above Staff report, Staff is recommending that the City
Council approve the Developer’s Agreement for Wildflower at Lake Elmo and that the Council
direct the Mayor and Staff to execute this document upon a final review of the oversizing
payment request by the City Engineer. The suggested motion to adopt the Staff recommendation is as follows:
“Move to adopt Resolution 2015-063 approving the developer’s agreement for Wildflower at
Lake Elmo”
ATTACHMENTS:
1. Resolution 2015-063
2. Wildflower at Lake Elmo Developer’s Agreement – Final Draft
RESOLUTION NO. 2015-063
A RESOLUTION APPROVING THE DEVELOPER’S AGREEMENT FOR WILDFLOWER AT LAKE ELMO (PHASE 1)
WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing
under the laws of the State of Minnesota; and
WHEREAS, Robert Engstrom Companies, 4801 West 81st Street, #101, Bloomington,
MN (“Applicant”) has previously submitted an application to the City of Lake Elmo (“City”) for
a Final Plat for Wildflower at Lake Elmo; and
WHEREAS, the Lake Elmo City Council considered and approved the Preliminary Plat request for Wildflower at Lake Elmo at a meeting held on April 7, 2015; and
WHEREAS, The Lake Elmo City Council adopted Resolution No. 2015-060 on July 21,
2015 approving the Final Plat for Wildflower at Lake Elmo; and
WHEREAS, Condition (7) of said Resolution No. 2015-060 establishes that, prior to the
execution of the Final Plat by City officials, the Applicant is to enter into a Developer’s
Agreement with the City; and
WHEREAS, the Applicant and City have agreed to enter into such a contract, and a copy of the Developer’s Agreement was submitted to the City Council for consideration at its August
4, 2015 meeting.
NOW, THEREFORE, based on the information received, the City Council of the City
of Lake Elmo does hereby approve the Developer’s Agreement for Wildflower at Lake Elmo and authorizes the Mayor and City Clerk to execute the document subject to final review and
approval of the requested utility oversizing payments by the City Engineer.
Passed and duly adopted this 4th day of August 2015 by the City Council of the City of Lake
Elmo, Minnesota.
__________________________________
Mike Pearson, Mayor ATTEST:
________________________________
Julie Johnson, City Clerk
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(reserved for recording information)
DEVELOPMENT CONTRACT
(Public sewer and water) Wildflower at Lake Elmo
AGREEMENT dated , 2015, by and between the CITY OF LAKE
ELMO a Minnesota municipal corporation (“City”), and Robert Engstrom Companies, a
Minnesota corporation (the “Developer”).
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve the
plat for Wildflower at Lake Elmo (referred to in this Contract as the "plat"). The land is situated in the
County of Washington, State of Minnesota, and is legally described in the attached 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 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 and
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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. Except as provided for
herein, 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.
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 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
and the Developer's contractor. The Developer or his engineer shall schedule a pre-construction meeting
at a mutually agreeable time at the Lake Elmo Public Works Building 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
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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. After 30 days 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 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.
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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 November 30, 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 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.
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 39th Street. Construction access to the site shall be allowed via
an existing driveway easement from State Highway 5 (Stillwater Boulevard) until such time that
the 39th Street right-of-way is capable of supporting access construction for construction
equipment. 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 their representatives are required to supervise
and coordinate all construction activities for all improvements and must notify the City in writing stating
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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”.
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, 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.
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.
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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.
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 "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.
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
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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 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 City Council has accepted the developer’s plans for a
shared park with the development to the west of the plat, an extensive paved public trail system,
and a large, privately owned nature conservancy area as meeting the developer’s obligations for
the plat. No additional land or fees in lieu of land dedication are required.
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
state 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 amount to be paid by the Developer is
$180,000.
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 amount to be paid by the Developer is
$180,000 . 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 $750 in payment for the first year operating
costs for street lights.
25. 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 six model homes on lots
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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; and the as- constructed grading must be on file at the
City for the block where the building is to be located.
26. 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, the Developer hereby authorizes the
City to commence an Interpleader action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the
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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
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.
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27. CITY PAYMENTS. In the event City payments are required by Section 27.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 19. 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: $49,914.50
28. SPECIAL PROVISIONS. The following special provisions shall apply to plat
development:
A. Implementation of the recommendations listed in the July 8, 2015
Engineering memorandum and subject to approval of the final construction plans by the City Engineer.
B. In conjunction with the recording of the final plat, the developer shall convey
Outlots B, C, J, and K to the City by warranty deed. These areas represent storm water infiltration basins
or land to be used for park purposes.
C. The Developer must obtain a sign permit from the City Building Official prior to
installation of any permanent subdivision identification signs.
D. All trails shall be located on outlots to be deeded to the City or within easements
dedicated to the City of Lake Elmo. Title commitments shall be provided for all land so dedicated.
E. The Developer shall observe any State or County requirements for work within or
adjacent to their respective right-of-way.
F. The Developer shall record a Declaration of Covenants, Conditions, Restrictions,
and Easements (hereinafter “Declaration”) along with the plat. The Declaration shall require the Wildflower
at Lake Elmo Homeowners Association to be responsible for maintenance of landscaping installed in areas
outside of land dedicated as public park and open space on the final plat.
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G. The final construction plans shall include a trail connection along Lake Elmo Avenue
between the existing trail outlet to Lake Elmo Avenue and the boundary between the Wildflower
development and the property south of Wildflower.
H. The developer shall establish a legally binding agreement to prevent further
residential or commercial development of all outlots planned for open space or conservation uses
I. The developer shall provide a completed bituminous driveway connection to the
Smith property at 11514 Stillwater Boulevard North as part of the improvements associated with Phase 1
of the development.
J. The developer shall complete the planting and removal work at the Eischen property
at 11647 Stillwater Boulevard North as described in a private agreement between the developer and
Eischen family as part of Phase 1 of the development. Other mitigation measures as previously agreed to
between the developer and any private parties shall be completed in accordance with such agreements.
K. The natural habitat areas within the development shall be privately owned and
maintained by the Wildflower HOA. All trails other than those designated for public use and located within
public easements, public right-of-way, or on City-owned land shall be privately owned and maintained.
29. 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.
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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 and common areas, including Outlots A,D, E, F, H, I, L, M, N, O and P and I shall be maintained in
good 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 Wildflower at Lake Elmo 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
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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.
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.
30. 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.
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.
31. 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
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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..
32. ENFORCEMENT BY CITY; DAMAGES. The Developers acknowledge the right of the
City to enforce the terms of this Agreement against the Developers, by action for specific performance or
damages, or both, or by any other legally authorized means. The Developers also acknowledge that their
failure to perform any or all of their obligations under this Agreement may result in substantial damages to
the City; that in the event of default by the Developers, 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.
33. 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 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,
18
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 to be
deeded to the City (Outlots J and K) 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.
34. 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 $4,552,426. The amount of the security was calculated as follows:
CONSTRUCTION COSTS:
1) Grading
797,490 $996,863
2) Sanitary Sewer $335,686 $419,608
3) Watermain
$343,489 $429,361
4) Streets
$944,628 $1,180,785
5) Surface Water Facilities (pipe, ponds, rain gardens, etc.)
$637,813 $797,266
6) Erosion Control
Included in grading amount
7) Sidewalks/Trails $362,762 $453,453
8) Street Lighting
Xcel to Install, to be pre-paid directly by developer
9) Street Signs and Traffic Control Signs
$11,572 $14,465
10) Landscaping
$200,000 $250,000
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11) Tree Preservation and Restoration Included in landscaping
12) Wetland Mitigation and Buffers
Separate letter of credit through Watershed District
13) Monuments
$6,000 $7,500
14) Miscellaneous Facilities
N/A N/A
15) Developer’s Record Drawings
$2,500 $3,125
Construction Sub-Total $3,641,940
Total Project Securities (at 125% Construction Costs) $4,552,426
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 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.
35. 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. Upon completion of grading operations, including temporary site restoration,
Developer shall submit an as-built grading survey to the City. Upon inspection of the site and approval of
the as-built survey by the City, 100%, or $996,863, of the grading security shall be released.
B. Up to 75% of the remaining security provided in accordance with paragraph
33 may be released at the following stages of construction and project approvals by the City.
a. Construction Categories 2 and 3: The amount of $636,727 may be released
when all sanitary sewer and watermain utilities have been installed, all testing has been successfully
20
completed, utility record drawings have been verified, and the utilities are considered ready for use by the
City Engineer.
b. Construction Categories 4-6: The amount of $1,483,538 may be released
when all streets, sidewalks, trails, storm sewer, and storm water facilities have been installed and tested,
and have been found to be complete to the satisfaction of the City Engineer including all corrective work for
any identified punch list items, but not including the final wear course.
c. Construction Categories 7-15: The amount of $546,407 may be released
when all remaining 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
workfor any identified punch list items, but not including the final wear course.
C. The final portion of the remaining security amounts in paragraph 33 above
(25%) shall be retained as security until: (1) all improvements have been completed, including bituminous
wear course, (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.
36. 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) $180,000
Water Availability Charge (WAC) $180,000
Park Dedication
N/A
Street Light Operating Fee
$750
City Base Map Upgrading
Village AUAR Fee
$1,500
$13,800
City Engineering Administration
Escrow
$50,000 (Based on two months of
administration/observation)
Total Cash Requirements $426,050
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37. NOTIC0 ES. 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: Robert Engstrom Companies, 4801 West 81st Street, #101, Bloomington, MN. 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.
38. 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.
CITY OF LAKE ELMO
(SEAL)
BY: , Mayor
AND , City Clerk DEVELOPER:
BY:
Its
22
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 , 2 , by
the of .
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo
3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
23
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
24
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
25
EXHIBIT “A”
TO DEVELOPMENT CONTRACT
Legal Description of Property Being Final Platted as Wildflower at Lake Elmo
______________________________
26
EXHIBIT “B”
TO DEVELOPMENT CONTRACT
City Overszing Payment Calculation
______________________________
Item # Contract Item Unit Unit Price Quantity Amount
SS-15 10" PVC SDR 26, 14'-16' Depth LF $58.00 75 $4,350.00
SS-16 10" PVC SDR 26, 16'-18' Depth LF $58.00 795 $46,110.00
SS-17 10" PVC SDR 26, 18'-20' Depth LF $58.00 420 $24,360.00
SS-17 10" PVC SDR 26, 20'-22' Depth LF $58.00 316 $18,328.00
SS-17 10" PVC SDR 26, 22'-24' Depth LF $58.00 268 $15,544.00
SS-22 4" PVC SDR 26 Riser Pipe VF $17.00 92.5 $1,572.50
SS-23 10"x4" PVC Service WYE EA $225.00 18 $4,050.00
SS-25 Sanitary Sewer Manhole Extra Depth VF $95.00 83.20 $7,904.00
Total Plan Sanitary Sewer Estimate Amount $122,218.50
Item # Contract Item Unit Unit Price Quantity Amount
SS-1 8" PVC SDR 26, 10'-12' Depth LF $37.50 75 $2,812.50
SS-8 8" PVC SDR 26, 14'-16' Depth LF $37.50 455 $17,062.50
SS-9 8" PVC SDR 26, 16'-18' Depth LF $37.50 530 $19,875.00
SS-10 8" PVC SDR 26, 18'-20' Depth LF $37.50 230 $8,625.00
SS-11 8" PVC SDR 26, 20'-22' Depth LF $37.50 316 $11,850.00
SS-12 8" PVC SDR 26, 22'-24' Depth LF $37.50 268 $10,050.00
SS-22 4" PVC SDR 26 Riser Pipe VF $17.00 70.5 $1,198.50
SS-23 8"x4" PVC Service WYE EA $105.00 18 $1,890.00
SS-25 Sanitary Sewer Manhole Extra Depth VF $95.00 79.20 $7,524.00
Total Development Only Sanitary Sewer Estimate Amount $80,887.50
Bid Estimate
ENGINEER'S ESTIMATE
FOR
UTILITY AND STREET CONSTRUCTION
WILDFLOWER AT LAKE ELMO - 1st PHASE-OVERSIZING
IN
LAKE ELMO, MN
July 31, 2015
Plan Date: 7-22-15
Section A1 - Plan Sanitary Sewer - 1st Phase
Bid Estimate
Section A2 - Development Only Sanitary Sewer - 1st Phase
Item # Contract Item Unit Unit Price Quantity Amount
WM-3 12" D.I.P. Class 52 LF $42.00 749 $31,458.00
WM-5 D.I.P. Fittings LB $3.10 1,900 $5,890.00
WM-10 12" Gate Valve & Box EA $2,200.00 4 $8,800.00
Total Plan Watermain Estimate Amount $46,148.00
Item # Contract Item Unit Unit Price Quantity Amount
WM-2 8" D.I.P. Class 52 LF $38.00 749 $28,462.00
WM-5 D.I.P. Fittings LB $3.10 775 $2,402.50
WM-10 8" Gate Valve & Box EA $1,675.00 4 $6,700.00
Total Development Only Watermain Estimate Amount $37,564.50
Total Plan Sanitary Sewer Estimate Amount $122,218.50
Total Development Only Sanitary Sewer Estimate Amount ($80,887.50)
SANITARY OVERSIZE COST $41,331.00
Total Plan Watermain Estimate Amount $46,148.00
Total Development Only Watermain Estimate Amount ($37,564.50)
WATERMAIN OVERSIZE COST $8,583.50
GRAND TOTAL OVERSIZE COST $49,914.50
Section B2 - Development Only Watermain - 1st Phase
Bid Estimate
Total Watermain Oversize Cost
Total Sanitary Oversizing Cost
Bid Estimate
Section B1 - Plan Watermain - 1st Phase
27
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