HomeMy WebLinkAbout#09 - Lakewood Crossing 2nd Addition DASTAFF REPORT
DATE: 10/3/2017
REGULAR
MOTION
TO: City Council
FROM: Emily Becker, Planning Director
AGENDA ITEM: Lakewood Crossing 2nd Addition Development Agreement
REVIEWED BY: Jack Griffin, City Engineer Sarah Sonsalla, City Attorney
BACKGROUND:
On June 20, 2017, Council approved Preliminary and Final Plat and Planned Unit Development
Plans for Lakewood Crossing 2nd Addition by adoption of Resolution 2017-063. A development
agreement is required prior to recording the plat with Washington County.
ISSUE BEFORE COUNCIL:
The City Council is being asked to adopt Resolution 2017-104 approving the Development Agreement for Lakewood Crossing 2nd Addition.
REVIEW/ANALYSIS:
Staff has drafted the proposed Development Agreement which is attached for consideration by the
City Council. The key aspects of the agreement include the following components:
•The Developer shall install the final wear course of asphalt on the streets for required turn
lane improvements by October 31, 2018.
•Hudson Boulevard must remain open to traffic at all times during construction of the turnlane improvements, and street sweeping must be done daily during heavy tracking days
nad at a minimum weekly throughout the construction duration.
•No construction parking is allowed along Hudson Blvd including loading and unloadingof equipment.
•The Hudson Blvd turn lane must be completed prior to the issuance of a Certificate of
Occupancy for any building permit.
•Required park dedication is a fee in lieu of land at $4500 per acre at 3.82 acres, totaling$17,190.
•That the developer provide a cash deposit of $67,265.00 for parkland dedication,
engineering administration, and other City fees. Sewer availability charges and water
City Council – Staff Report
Meeting date: 10/3/2017
Page 2
availability charges will be paid at the time of building permit, as Residential Equivalency
Charges will not be determined until the time tenants are chosen for each building.
•That the developer provide security in the amount of $235,101.00 for sanitary sewer,watermain, surface water facilities, landscaping improvements, erosion and sedimentationcontrol, construction of the right turn lane on Hudson Boulevard, and developers recorddrawings.
•Security costs do not include grading, storm sewer, streets and sidewalks, trails, streetlighting, street and traffic signs, private utilities, tree preservation, wetland mitigation andbuffers, or monuments, as would normally be included in a residential subdivision, as theseimprovements are not applicable to this development.
The final construction plans for the project have not been approved. Once approved, the Plan
approval dates will be incorporated into this document prior to its execution by the developer and
the City. Only after execution of this Agreement, receipt of all fees and securities, insurance,
recording of the final plat other and the completion of a pre-construction meeting with the City,
construction can commence.
FISCAL IMPACT:
The future financial impacts include sanitary sewer mains, watermains, surface water facilities
(infiltration basin), landscaping improvements, erosion and sedimentation control, and other
public financial responsibilities typically associated with a new development. The City will collect
building permit fees, Sewer Accessibility Charges and Water Accessibility Charges at the time of
building permit, and special assessments and parkland dedication will be due prior to the recording
of the plat.
OPTIONS:
The City Council is being asked to consider the approval of the Developer’s Agreement and has
the following options:
1)Adopt Resolution 2017-104 approving the Development Agreement for LakewoodCrossing 2nd Addition.
2)Direct Staff to amend the draft Developer Agreement to bring back to the 10/17/2017 City
Council meeting.
RECOMMENDATION:
Staff recommends the City Council adopt Resolution 2017-104 approving the Development
Agreement for Lakewood Crossing 2nd Addition with the following motion:
“Move to adopt Resolution 2017-104 approving the developer’s agreement for Lakewood
Crossing 2nd Addition Plat and Planned Unit Development.”
ATTACHMENTS:
City Council – Staff Report
Meeting date: 10/3/2017
Page 2
•Resolution 2017-104
•Lakewood Crossing 2nd Addition Development Agreement
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(reserved for recording information)
DEVELOPMENT AGREEMENT
(Public sewer and water) Lakewood Crossing 2nd Addition
THIS DEVELOPMENT AGREEMENT is dated ______________, 2017, by and between the
CITY OF LAKE ELMO, a Minnesota municipal corporation (the “City”) and CM PROPERTIES
94 LIMITED PARTNERSHIP (the “Developer”).
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a
plat for Lakewood Crossing 2nd Addition (referred to in this Agreement as the “Subdivision”). The
property being platted is situated in the County of Washington, State of Minnesota, and is legally
described on Exhibit A.
2. CONDITIONS OF PLAT APPROVAL. The City hereby approves the Subdivision on
condition that the Developer enter into this Agreement, furnish the security required by it, and
record the plat with the County Recorder or Registrar of Titles within 120 days after the City
Council approves the final plat.
3. RIGHT TO PROCEED. This Agreement is intended to regulate the development of the
Property and the construction therein of certain public and private improvements. The Developer
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may not grade or otherwise disturb the earth, remove trees or construct public or private
improvements or any buildings within the Subdivision until all the following conditions precedent
have been satisfied:
A. the Developer has executed and recorded with Washington County all drainage and
utility easements required for the Subdivision by the City Engineer and Public Works
Director in the City’s standard form;
B. the Developer has executed and recorded with Washington County the storm water
maintenance and easement agreement in the City’s standard form;
C. this Agreement has been executed by the Developer and the City;
D. the required Security (as hereinafter defined) have been received by the City from or on
behalf of the Developer;
E. final construction plans and specifications have been submitted by the Developer and
approved by the City Engineer;
F. the Developer has paid the City for all legal, engineering, and administrative expenses
incurred by the City regarding the City approvals and has given the City the additional
City Engineering Administration Escrow required by this Agreement;
G. the Developer has paid any outstanding assessments and taxes for the property or
property being deeded to the City;
H. the Developer has fulfilled any park dedication requirements as specified under this
Agreement;
I. the Developer has received all necessary permits from the Minnesota Pollution Control
Agency (“MPCA”), the Minnesota Department of Health (“MDH”), the Department of
Natural Resources (“DNR”), applicable watershed districts, Washington County, and any
other agency having jurisdiction over the Subdivision;
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J. the Developer has provided the City with a certificate of insurance required by this
Agreement;
K. the Developer or the Developer’s engineer and the Developer’s contractor(s) have
initiated and attended a preconstruction meeting with the City Engineer, and City staff;
L. the final plat has been recorded with Washington County;
M. legal documents regarding easement and maintenance agreements, covenants, and
restrictions have been submitted, reviewed, and approved by the City Attorney;
N. the Developer has provided a title policy for all land being deeded to the City or dedicated
to the City in the plat; and
O. the City has issued a written notice that all above conditions have been satisfied and that
the Developer may proceed;
4. PHASED DEVELOPMENT. If the plat is a phase of a multi-phased preliminary plat,
the City may refuse to approve final plats of subsequent phases of the development if the
Developer is not in compliance with any term of this Agreement and the non-compliance has not
been remedied. Development of subsequent phases of the development may not proceed until
development agreements for such phases are approved by the City. Park dedication charges
and availability charges for sewer and water referred to in this Agreement are not being imposed
on outlots that are designated in the plat for future subdivision into lots and blocks, if any, in the
plat. Such charges will be calculated and imposed when these outlots, if any, are platted into lots
and blocks.
5. PRELIMINARY PLAT STATUS. If the Subdivision 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 years after preliminary plat
approval.
6. CHANGES IN OFFICIAL CONTROLS. For five years from the date of this Agreement,
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no amendments to the City's Comprehensive Plan or official controls shall apply to or affect the
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 Agreement to the contrary, to the full extent permitted by state
law, the City may require compliance with any changes to the City's Comprehensive Plan, official
controls, platting or dedication requirements enacted after the date of this Agreement.
7. DEVELOPMENT PLANS. The Developer agrees to develop the Property in
accordance with the City approvals, including the terms and conditions of approval of the final plat
as detailed in City Council Resolution No. 2017-063, and to construct all improvements in
accordance with the approved construction plans and specifications (collectively, the “Plans”)
prepared by a professional engineer registered in the State of Minnesota at its sole expense. All
terms and conditions of the City approvals are hereby incorporated by reference into this
Agreement. The documents which constitute the Plans are those on file with and approved by
the City and are listed on Exhibit B attached hereto. The Plans may not be modified by the
Developer without the prior written approval of the City.
8. IMPROVEMENTS. In developing the Subdivision in accordance with the Plans, the
Developer shall make or install at its sole expense the following public and private improvements
(collectively, the “Subdivision Improvements”):
A. Grading and erosion control;
B. Sanitary sewer;
C. Water system improvements;
D. Stormwater improvements (storm sewer pipe, control structures, ponds, BMPs,
etc.)
E. Streets and sidewalks;
F. Trails;
G. Underground private utilities;
H. Landscaping;
I. Street lighting and signage;
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J. Intersection improvements (turn lanes, by-pass lanes, traffic control, etc.);
K. Tree preservation and reforestation;
L. Wetland mitigation and buffers; and
M. Monuments required by Minnesota Statutes.
All improvements shall be installed in accordance with the approved Plans, the City
approvals, the City Code, the City’s Engineering Design and Construction Standards Manual, and
the City’s Landscape and Irrigation Standards. 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 Plans, the City approvals, the City Code, the City’s Engineering Design and
Construction Standards Manual, and the City’s Landscape and Irrigation 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 or a soil engineer inspect the Developer’s 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.
9. CITY ADMINISTRATION AND CONSTRUCTION OBSERVATION. At the time of the City’s approval of the final plat for the Subdivision, the Developer shall submit
to the City an amount to be escrowed by the City for City administration and construction
observation costs in an amount provided under paragraph 34 of this Agreement - Summary of
Cash Requirements. Thereafter, the Developer shall reimburse the City each month, within 30
days of receiving an invoice, for all administration and construction observation costs incurred by
the City during the construction of the Subdivision Improvements by the City’s engineering, public
works, planning, and landscape architecture staff and consultants. After 30 days of the invoice,
the City may draw upon the escrow and stop the work on site until the escrow has been
replenished in its full amount. City administration and oversight will include monitoring of
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construction progress and construction observation, consultation with the Developer and the
Developer’s professionals 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 the Security. 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 by the City on an hourly basis.
The direction and review provided by the City through the inspection of the Subdivision
Improvements should not be considered a substitute for the Developer-required management of
the construction of the Subdivision Improvements. The Developer must require the Developer’s
contractor(s) to furnish the City with a schedule of proposed operations at least five days prior to
the commencement of construction of each type of Subdivision Improvement. The City shall
inspect all Developer-installed Subdivision Improvements during and after construction for
compliance with the Plans, the City approvals, the City Code, the City’s Engineering Design and
Construction Standards Manual, and the City’s Landscape and Irrigation Standards. The
Developer will notify the City at such times during construction as the City 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 the 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 percent ownership interest or in which they are an
officer or director may not act as contractors or subcontractors for the Subdivision Improvements
identified in paragraph 8 above.
11. TIME OF PERFORMANCE. The Developer shall install all required Subdivision
Improvements by October 31, 2018, including the final wear course of asphalt on streets (turn
lanes). The Developer may, however, request an extension of time from the City. If an extension
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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.
12. MAINTENANCE DURING CONSTRUCTION. The Developer shall be responsible for
all maintenance of the Subdivision Improvements until the Subdivision Improvements are
accepted by the City in writing. The Developer is also responsible to locate all underground
utilities until the Subdivision is accepted in writing by the City. Warning signs shall be placed by
the Developer when hazards develop in streets to prevent the public from traveling on same and
to direct attention to detours. Hudson Boulevard must remain open to traffic at all times to ensure
that the streets are passable for traffic and emergency vehicles. The Developer shall be
responsible for keeping streets within and outside of the Subdivision clean and clear of dirt and
debris that may spill, track, or wash onto the street from the Developer’s operations. The
Developer shall contract for street cleaning for streets within and immediately adjacent to the
Subdivision. Street sweeping must be done daily during heavy tracking days and at a minimum
weekly throughout the duration of the construction.
13. LICENSE. The Developer hereby grants the City, its agents, employees, officers, and
contractors a license to enter the Property to perform all work and inspections deemed
appropriate by the City in conjunction with the development of the Property and this Agreement.
14. CONSTRUCTION ACCESS. Construction traffic access and egress for grading, public
utility construction, and street construction is restricted to access the Subdivision via Hudson
Boulevard North. No construction traffic is permitted on other adjacent local streets. No
construction parking is allowed along Hudson Boulevard including loading and unloading of
equipment. Construction parking must occur on the property within the Subdivision.
15. CONSTRUCTION SEQUENCE AND COMPLIANCE. The City will require the
Developer to construct the Subdivision Improvements in a sequence which will allow progress
and compliance points to be measured and evaluated. The Developer and the Developer’s
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representatives are required to supervise and coordinate all construction activities for all
Subdivision 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. EROSION CONTROL. All construction regarding the Subdivision Improvements shall
be completed in a manner designed to control erosion and in compliance with the City Code, the
City’s Engineering Design and Construction Standards Manual, all watershed district permits, the
MPCA’s best management practices, and other requirements including the City’s permit with the
MPCA for the municipal separate storm sewer system program. Prior to initiating any work on
the site, an erosion control plan must be implemented by the Developer and inspected and
approved by the City. Erosion and sediment control measures shall be coordinated with the
various stages of development. The City may impose additional erosion control requirements at
any stage in development as deemed necessary to maintain a compliant site. All areas disturbed
for site improvements must be reseeded by the Developer promptly after the work in the area is
complete unless construction of the next stage of the improvements will begin in that area within
seven days. 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 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
by the City unless the Subdivision is in full compliance with the approved erosion control plan.
If building permits are issued prior to the acceptance of public Subdivision Improvements,
the Developer assumes all responsibility for erosion control compliance throughout the
Subdivision and the City may take such action as allowed by this Agreement against the
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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. SITE GRADING. In order to construct the Subdivision Improvements and otherwise
prepare the Property for development, it will be necessary for the Developer to grade the
Subdivision. All grading must be done in compliance with this Agreement and the approved
grading plans. Within 30 days after completion of the grading, the Developer shall provide the
City with an “as built” grading plan and a certification by a registered land surveyor or engineer
as required in the City’s Engineering Design and Construction Standards Manual.
18. STREET AND UTILITY IMPROVEMENTS. All sanitary sewers, watermain, and turn
lane improvements, shall be installed in accordance with the approved Plans, the City approvals,
the City Code, and the City’s Engineering Design and Construction Standards Manual. Once the
work is completed, the Developer or the Developer’s 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.
19. LANDSCAPING AND TREE REPLACEMENT IMPROVEMENTS.
A. The Developer agrees to install landscaping in accordance with the approved Plans,
the City approvals, the City Code, the City’s Engineering Design and Construction
Standards Manual, and the City’s Landscape and Irrigation Standards. All
landscaping materials such as trees, shrubs, grasses, or other vegetation installed
by the Developer must be warrantied and maintained for a period of two years. The
two year warranty period shall be deemed to start once all required landscaping
identified as responsibility of Developer in the approved Plans has received
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acceptance by the City. The Developer agrees to have the installer of the
landscaping complete an inspection 30 days prior to the end of the two year warranty
period and provide the City with a written report identifying the condition of all
landscaping. In the event any landscaping installed by the Developer is deemed to
be in poor condition or dead, the Developer is to replace the landscaping with like
kind materials or as otherwise approved by the City.
B. The Developer shall be responsible for maintaining regular watering, fertilizing, and
over-seeding necessary to establish final lawns and yards as identified in the
approved Plans for outlots, public rights-of-way, and any disturbed areas outside the
Subdivision boundaries according to a landscape maintenance plan approved by the
City. The Developer agrees to achieve “substantial performance” on all seeded or
sodded areas disturbed during the construction of Subdivision Improvements. For
the purpose of this agreement “substantial performance” shall be defined for areas
seeded or sodded with a turf or lawn mix as “square foot turf areas with an average
blade height of three inches free of eroded, bare, or dead spots and free from
perennial weeds or unwanted grasses with no visible surface soil.” For areas seeded
with a native grass or flower mix “substantial performance” shall be defined as
“square foot native grass or flower areas with an average height of eight inches free
of eroded, bare, or dead spots and no visible surface soil.”
20. SIGNAGE, STREET LIGHTING AND OTHER UTILITIES. The Developer agrees to
install street signs, traffic and parking signs, and pavement markings within the Subdivision all in
accordance with the approved Plans and the City Engineering Design Standards Manual. Street
and traffic sign details shall be submitted by the Developer to the City for approval prior to
installation. In addition, the Developer shall be responsible for the cost and all coordination work
to extend private utilities along with street lighting within the Subdivision all in accordance with
the approved plans and right-of-way permits.
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21. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction
required by this Agreement, the Subdivision Improvements lying within public easements shall
become City property. Prior to acceptance of the public Subdivision Improvements by the City,
the Developer must furnish the City with a complete set of reproducible "record" plans and 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
Agreement. 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 that the public Subdivision
Improvements have been completed in accordance with the terms of this Agreement, the City
Engineer will accept the completed public Subdivision Improvements.
22. PARK DEDICATION. The Developer shall pay a cash contribution of $17,190.00 in
satisfaction of the City's park dedication requirements. The charge was calculated as follows:
3.82 acres at $4,500.00 per acre.
23. SANITARY SEWER AND WATER UTILITY AVAILABILITY CHARGES (SAC AND
WAC). The Developer shall be responsible for the payment of all sewer availability charges
(SAC) and all water availability charges (WAC) with respect to the Subdivision 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 REC will be payable
and collected by the City at the time the building permit is issued for each building.
The water availability charge (WAC) in the amount of $3,000.00 per REC will be payable
and collected by the City at the time the building permit is issued for each building.
In addition, a sewer connection charge in the amount of $1,000.00 per REC, a
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Metropolitan Council sewer availability charge in the amount of $2,485.00 per REC, and a water
connection charge in the amount of $1,000.00 per REC will be payable and collected by the City
at the time the building permit is issued for each building.
24. BUILDING PERMITS/CERTIFICATES OF OCCUPANCY.
A. No building permit shall be issued for any lot within the Subdivision, or within a
completed phase of the Subdivision in a City preapproved phasing plan, until such
time that sanitary sewer, water, storm sewer, and grading as-built plans have been
submitted and approved by the City. A “preapproved phasing plan” is defined as a
phased construction plan that has been submitted by the Developer and approved
by the City in advance of the preconstruction meeting for the Subdivision. Once the
construction has started, the City will not consider revisions to the phasing plan for
the purpose of issuing building permits.
B. Breach of the terms of this Agreement by the Developer, including nonpayment of
billings from the City, shall be grounds for denial of building permits, certificates of
occupancy, and withholding of other permits, inspection or actions and the halting of
all work in the Subdivision.
C. If building permits are issued prior to the acceptance of the public Subdivision
Improvements by the City, the Developer assumes all liability and costs resulting in
delays in completion of public Subdivision Improvements and damage to public
Subdivision Improvements caused by the City, Developer, the Developer’s
contractors, subcontractors, materialmen, employees, agents, or any third parties.
D. 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.
E. The Hudson Boulevard turn lane must be completed prior to the issuance of a
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certificate of occupancy for any building permit.
25. RESPONSIBILITY FOR COSTS.
A. In the event that the City receives claims from labor, materialmen, or others that work
required by this Agreement has been performed and the amounts due to 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 Security 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 funds deposited with the District Court, except that the Court shall
retain jurisdiction to determine attorneys' fees pursuant to this Agreement.
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 Subdivision, including but
not limited to legal, planning, engineering, and inspection expenses incurred in
connection with the City’s approval and acceptance of the plat and the Subdivision,
the preparation of this Agreement, the City’s review of construction plans and
documents, and all costs and expenses incurred by the City in monitoring and
inspecting development of the Subdivision. All amounts incurred and due to the City
at the time of the recording of the final plat must be fully paid by the Developer prior
to the City executing and releasing the final plat for recording.
C. The Developer shall hold the City and its officials, employees, and agents harmless
from claims made by itself and third parties for damages sustained or costs incurred
resulting from the City’s approval of the plat and the development of the Subdivision.
The Developer shall indemnify the City and its officials, employees, and agents for
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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
Agreement, 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 Agreement. 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 Property, or any portion of it.
F. The Developer shall pay in full all bills submitted to it by the City for obligations
incurred under this Agreement within 30 days after receipt. Bills not paid within 30
days shall be assessed a late fee per the City adopted fee schedule. Upon request,
the City will provide copies of detailed invoices of the work performed by the City
and its consultants.
26. SPECIAL PROVISIONS. The following special provisions shall apply to the
Subdivision:
A. The Developer must obtain a sign permit from the City prior to installation of any
sign.
27. MISCELLANEOUS. A. The Developer may not assign this Agreement without the written permission of the
City Council. The Developer's obligations hereunder shall continue in full force and
effect even if the Developer sells one or more lots, the entire Property, or any portion
of it.
B. Retaining walls that require a building permit shall be constructed in accordance with
plans and specifications prepared by a professional engineer licensed by the State
of Minnesota. Following construction, a certification signed by the design engineer
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shall be filed with the City Engineer evidencing that the retaining wall was
constructed in accordance with the approved Plans. All retaining walls identified on
the Plans or by special conditions referred to in this Agreement shall be constructed
before any other building permit is issued for a lot on which a retaining wall is
required to be built.
C. Legal documents regarding covenants and restrictions shall be submitted to the City
prior to recording of the final plat for review and approval by the City Attorney.
D. The Developer shall take out and maintain or cause to be taken out and maintained
until six months after the City has accepted the public Subdivision 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 $1,500,000 for each occurrence; limits for property damage shall be not
less than $200,000 for each occurrence; or a combination single limit policy of
$1,500,000 or more. The City shall be named as an additional insured on the policy,
and the Developer shall file with the City a certificate of insurance evidencing
coverage prior to the City signing the plat. The certificate shall provide that the City
must be given 30 days’ advance written notice of the cancellation of the insurance.
E. Third parties shall have no recourse against the City under this Agreement.
F. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this
Agreement is for any reason held invalid, such decision shall not affect the validity
of the remaining portion of this Agreement.
G. The action or inaction of the City shall not constitute a waiver or amendment to the
provisions of this Agreement. To be binding, amendments or waivers shall be in
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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 Agreement shall not be
a waiver or release.
H. This Agreement shall run with the land and may be recorded against the title to the
Property at the Developer’s expense. The Developer covenants with the City, its
successors and assigns, that the Developer has fee title to the Property being final
platted and has obtained consents to this Agreement, in the form attached hereto,
from all parties who have an interest in the Property, including, but not limited to,
mortgagees; 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 Subdivision and the Subdivision
Improvements comply or will comply 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
Subdivision is not in compliance, the City may, at its option, refuse to allow
construction or development work in the Subdivision until it is brought into
compliance. Upon the City’s demand, the Developer shall cease work until there is
compliance.
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28. 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 the Developer to commence and complete
construction of the public Subdivision Improvements pursuant to the terms,
conditions, and limitations of this Agreement.
B. Failure by the Developer to substantially observe or perform any material covenant,
condition, obligation, or agreement on its part to be observed or performed under
this Agreement.
29. REMEDIES ON DEFAULT. Whenever any Event of Default occurs, the City, subject
to any rights of third parties agreed to by the City pursuant to this Agreement, or otherwise by
written, executed instrument of the City, may take any one or more of the following:
A. The City may suspend its performance under the Agreement until it receives
assurances from the Developer, deemed adequate by the City, that Developer will
cure its default and continue its 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 the Developer, or immediately
draw on the Security, as set forth in this Agreement.
30. ENFORCEMENT BY CITY; DAMAGES. The Developer acknowledges the right of
the City to enforce the terms of this Agreement against the Developer, by action for specific
performance or damages, or both, or by any other legally authorized means. In the event of a
default by the Developer as to construction or repair of any of the Subdivision Improvements or
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any other work or undertaking required by this Agreement, the City may, at its option, perform the
work and the Developer shall promptly reimburse the City for any expense incurred by the City.
This Agreement is a license for the City to act, and it shall not be necessary for the City to seek
an order from any court for permission to enter the Subdivision for such purposes. If the City
does such work, the City may, in addition to its other remedies, levy special assessments against
the land within the Subdivision to recover the costs thereof. For this purpose, the Developer, for
itself and its successors and assigns, expressly waives any and all procedural and substantive
objections to the special assessments, including, but not limited to, hearing requirements, and
any claim that the assessments exceed the benefit to the land so assessed. The Developer, for
itself and its successors and assigns, also waives any appeal rights otherwise available pursuant
to Minnesota Statutes Section 429.081.
The Developer also acknowledges that its failure to perform any or all of the Developer’s
obligations under this Agreement may result in substantial damages to the City; that in the event
of default by the Developer, the City may commence legal action to recover all damages, losses
and expenses sustained by the City; and that such expenses may include, but are not limited to,
the reasonable fees of legal counsel employed with respect to the enforcement of this Agreement.
31. WARRANTY. During the warranty period, the Developer warrants that all Subdivision
Improvements will be free from defects and that they will continue to meet all technical
specifications and standards. During the warranty period, the Developer agrees to repair or
replace any Subdivision Improvement, or any portion or element thereof, which shows signs of
failure, normal wear and tear excepted. If the Developer fails to repair or replace a defective
Subdivision Improvement during the warranty period, the City may repair or replace the defective
portion and may use the Security to reimburse itself for such costs. The Developer agrees to
reimburse the City fully for the cost of all Subdivision Improvement repair or replacement if the
cost thereof exceeds the remaining amount of the Security. Such reimbursement must be made
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within 45 days of the date upon which the City notifies the Developer of the cost due under this
paragraph. The Developer hereby agrees to permit the City to specially assess any unreimbursed
costs against any lots in the Subdivision which have not been sold to buyers if the Developer fails
to make required payments to the City. The Developer, on behalf of itself and its successors and
assigns, acknowledges the benefit to the lots within the Subdivision of the repair or replacement
of the Subdivision Improvements and hereby consents to such assessment and waives the right
to a hearing or notice of hearing or any appeal thereon under Minnesota Statutes, Chapter 429.
A. The required warranty period for all work relating to the public sewer and water shall
be two years from the date of final written City acceptance of the work.
B. The required warranty period for all work relating to the Hudson Boulevard turn lane
shall be one year from the date of final written City acceptance of the work.
C. The required warranty period for sod, trees, and landscaping shall be two years from
the date of final written City acceptance of the installation.
32. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the
terms of this Agreement, payment of special assessments, payment of the costs of all public
Subdivision Improvements, and construction of all public Subdivision Improvements, the
Developer shall furnish the City with an irrevocable letter of credit or a cash escrow or a
combination of a cash escrow and letter of credit (the “Security") in the amount of $235,100.00.
The bank originating the letter of credit shall be determined by the City to be solvent and
creditworthy. The letter of credit shall substantially be in the form attached to this Agreement and
must be approved by the City. The amount of the Security was calculated as itemized on Exhibit
C. If at any time the City reasonably determines that the bank issuing the letter of credit no longer
satisfies the City’s requirements regarding solvency and creditworthiness, the City shall notify the
Developer and the Developer shall provide to the City within 45 days a substitute for the letter of
credit from another bank meeting the City’s requirements. If the Developer fails to provide the
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City within 45 days with a substitute letter of credit from an issuing bank satisfactory to the City,
the City may draw under the existing letter of credit.
This breakdown is for historical reference; it is not a restriction on the use of the Security.
The City may draw down the Security, without notice, for any violation of the terms of this
Agreement or if the Security is allowed to lapse prior to the end of the required term. If the required
public Subdivision Improvements are not completed at least 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 by the City to cure the default.
33. REDUCTION OF SECURITY. Upon written request by the Developer and upon receipt
of proof satisfactory to the City Engineer that work has been completed in accordance with the
approved Plans and the terms of this Agreement and that all financial obligations to the City have
been satisfied, the City Engineer may approve reductions in the Security in the following
instances:
A. Upon completion of grading operations, including temporary site restoration. The
Developer must submit an as-built grading survey to the City that at a minimum
establishes the as-built grades at all lot corners and downstream drainage
conveyance systems and storm water ponds. Upon inspection of the site and
approval of the as-built survey by the City, 100 percent, or $0, of the Security
associated with grading may be released. This Security reduction does not include
amounts related to erosion and sedimentation control.
B. Up to 75 percent of the Security associated with the itemization on Exhibit C may
be released upon completion of the following key milestones of the project as
determined by the City Engineer:
1. Construction Categories 2 and 3: The amount of $73,410.00 may be released
when all sanitary sewer and watermain utilities have been installed, all testing
and televising has been successfully completed, sanitary sewer as-built inverts
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have been verified, and the utilities are considered ready for use by the City
Engineer.
2. Construction Categories 4 and 5: The amount of $0 may be released when the
Hudson Boulevard turn lane has been installed, the drainage system within the
right-of-way has been installed and tested, and both have been found to be
complete to the satisfaction of the City Engineer including all corrective work
for any identified punch list items and including verification of storm sewer as-
built inverts.
3. Construction Categories 6-10 and 14-17: The amount of $10,571.00 may be
released when all remaining Developer’s obligations under this Agreement
have been completed including: (1) bio retention facilities; (2) iron monuments
for lot corners have been installed, if required; (3) all financial obligations to the
City satisfied; (4) the required "record" plans in the form of the City standards
have been received and approved by the City; and (5) the public Subdivision
Improvements are accepted by the City Engineer and the City Council.
4. Construction Categories 11, 12, and 13: The amount of $28,125.00 may
be released when landscaping Subdivision Improvements have been installed
to the satisfaction of the City including all corrective work for any identified
punch list items.
C. Twenty-five percent of the original Security amount, excluding grading and
landscaping improvements shall be retained until: (1) all Subdivision
Improvements have been fully completed and accepted by the City, including all
corrective work and warranty punch list items; (2) all financial obligations to the
City have been satisfied; and (3) the warranty period has expired.
D. Twenty-five percent of the original Security amount associated with landscaping
shall be retained by the City until: (1) all landscaping Subdivision Improvements
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have been fully completed and accepted by the City, including all corrective work
and warranty punch list items being completed by the Developer; (2) all financial
obligations to the City have been satisfied; and (3) the warranty period has expired.
E. It is the intent of the parties that the City at all times have available to it Security in
an amount adequate to ensure completion of all elements of the Subdivision
Improvements and other obligations of the Developer under this Agreement,
including fees or costs due to the City by the Developer. To that end and
notwithstanding anything herein to the contrary, all requests by the Developer for
a reduction or release of the Security shall be evaluated by the City in light of that
principle.
34. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash
requirements under this Agreement which must be paid to the City prior to recording the final plat:
Park Dedication: $17,190 Special Assessments Due: $0
City Base Map Upgrading ($25.00 per parcel): $75 City Engineering Administration Escrow: $50,000 TOTAL CASH REQUIREMENTS: $67,265
35. 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: 3460 Washington Drive, Suite 100, Eagan, MN 55122. 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.
36. EVIDENCE OF TITLE. The Developer shall furnish the City with evidence of fee
ownership of the property being platted by way of a title commitment dated not earlier than 30
days prior to the execution of the plat.
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37. COMPLIANCE WITH LAWS. The Developer agrees to comply with all laws,
ordinances, regulations, and directives of the state of Minnesota and the City applicable to the
Subdivision. This Agreement shall be construed according to the laws of the Minnesota.
38. SEVERABILITY. In the event that any provision of this Agreement shall be held invalid,
illegal, or unenforceable by any court of competent jurisdiction, such holding shall pertain only to
such section and shall not invalidate or render unenforceable any other provision of this
Agreement.
39. NON-WAIVER. Each right, power, or remedy conferred upon the City by this Agreement
is cumulative and in addition to every other right, power or remedy, express or implied, now or
hereafter arising, or available to the City at law or in equity, or under any other agreement. 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.
If either party waives in writing any default or nonperformance by the other party, such waiver
shall be deemed to apply only to such event and shall not waive any other prior or subsequent
default.
40. COUNTERPARTS. This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be an original and shall constitute one and the same Agreement.
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CITY OF LAKE ELMO By: ____________ __________________ Mike Pearson Its: Mayor By: __________________ _____________ Julie Johnson Its: City Clerk
STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this ___ day of ________________, 20___, by Mike Pearson and Julie Johnson, the Mayor and City Clerk, respectively, 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 _________________, 20___, by _______________________, the _______________________of CM PROPERTIES 94 LIMITED PARTNERSHIP, a Minnesota limited partnership on behalf of the partnership.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
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507745v1 SJS LA515-34
A-1
507745v1 SJS LA515-34
EXHIBIT A TO DEVELOPMENT CONTRACT Legal Description of Property Being Final Platted Outlot A, Lakewood Crossing, according to the recorded plat thereof, Washington County, Minnesota.
B-1
507745v1 SJS LA515-34
EXHIBIT B TO DEVELOPMENT CONTRACT List of Plan Documents
The following documents prepared by Carlson McCain constitute the Plans: THOSE DOCUMENTS BY AS FOLLOWS: SHEET TITLE REVISION DATE C1 of 12 Title Sheet
C2 of 12 Existing Conditions & Removals Plan
C3 of 12 Site & Sign Plan C4 of 12 Grading, Drainage & Erosion Control Plan
C5 of 12 Stormwater Pollution Prevention Plan
C6 of 12 Utility Plan
C7 of 12 Details
C8 of 12 Details
C9 of 12 Details
C10 of 12 Details (CMP System)
C11 of 12 Details (CMP System)
C12 of 12 Turn Lane Construction
L1 of 2 Landscape Plan
L2 of 2 Landscape Details
C-1
507745v1 SJS LA515-34
EXHIBIT C TO DEVELOPMENT CONTRACT Subdivision Improvements Cost/Security Amount Estimate CONSTRUCTION CATEGORY COST 125percent
1 Grading $0 $0
2 Sanitary Sewer $25,650 $32,063
3 Watermain $52,655 $65,819
7 Surface Water Facilities
(ponds, infiltration basins, other BMPs)
$11,275 $14,094
11 Landscaping Improvements $30,000 $37,500
15 Erosion and Sedimentation Control
$16,500 $20,625
16 Right Turn Lane $47,000 $58,750
17 Developer’s Record Drawings $5,000 $6,250
TOTALS $188,080 $235,101
507745v1 SJS LA515-34
FORM OF 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. The draft must: a) Bear the clause, "Drawn under Letter of Credit No.____________, dated ______________, 20___, 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, 20___. 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
CITY OF LAKE ELMO WASHINGTON COUNTY
STATE OF MINNESOTA RESOLUTION NO. 2017-104
A RESOLUTION APPROVING A DEVELOPMENT AGREEMENT FOR THE LAKEWOOD CROSSING 2ND ADDITION UNIT DEVELOPMENT WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing
under the laws of the State of Minnesota; and WHEREAS, CM Properties 94 LP, c/o MFC Properties, 3460 Washington Drive, Suite 100, Eagan, MN 55112 (“Applicant”) has previously submitted an application to the City of
Lake Elmo (“City”) for a Final Plat for Lakewood Crossing 2nd Addition Planned Unit Development (PUD); and WHEREAS, the Lake Elmo City Council considered and approved the Lakewood Crossing 2nd Addition General PUD Concept Plan on March 21, 2017; and
WHEREAS, the Lake Elmo City Council adopted Resolution 2017-063 approving the Lakewood Crossing 2nd Addition Preliminary and Final Plat and PUD Plans on June 20, 2017; and
WHEREAS, Section 153.08: Final Plat of the Lake Elmo Municipal Code requires that approval of a final plat is conditioned upon execution of a development agreement for basic improvements, public dedication, bonding, and other requirements determined necessary or appropriate by Council.
WHEREAS, the Applicant and the City have agreed to enter into such a contract and a copy of the Development Agreement was submitted to the City Council for consideration at its October 3, 2017 meeting; NOW, THEREFORE, BE IT RESOLVED THAT the City Council does hereby
approve the Developement Agreement for Lakewood Crossing 2nd Addition Final Plat and PUD Plans and authorizes the mayor and city Clerk to execute the document. Passed and duly adopted this 3rd day of October, 2017 by the City Council of the City of Lake Elmo, Minnesota.
___________________________________ Mike Pearson, Mayor
ATTEST: ____________________________________ Julie Johnson, City Clerk