HomeMy WebLinkAbout#19 - Easton Village 2nd and 3rd Addition DA Amendment RequestSTAFF REPORT
DATE: November 7, 2017
REGULAR #19
AGENDA ITEM: Easton Village 2nd and 3rd Addition Development Agreement Amendment Request
TO: Mayor and City Council SUBMITTED BY: Emily Becker, Planning Director REVIEWED BY: Kristina Handt, City Administrator
BACKGROUND: The City has received a request by Chase Development, Inc. to amend the Development Agreements for
Easton Village 2nd and 3rd Additions to allow building permits prior to installation of sidewalks. ISSUE BEFORE COUNCIL: Should the Development Agreements for Easton Village 2nd and 3rd Additions be amended to allow the City to release building permits prior to installation of sidewalks? PROPOSAL: The City adopted a new Developer Agreement Template in January of 2016 and has continued to make updates. The latest version of the template states that no building permit shall be issued for any lot until sanitary sewer, water, storm sewer, curbing and one lift of asphalt has been installed and tested for all public streets; sidewalks have been installed; street and traffic control signs are installed; property monuments have been installed and grading as-built plans have been submitted and approved by the City. Therefore, the requirement that sidewalks are installed prior to building permits has been established for a number of developments. The Royal Golf Club at Lake Elmo Development Agreement was amended to allow
sidewalks to be installed as a requirement of issuance of certificates of occupancy. This exception was made due the unique nature of the development requiring lift stations and significant utility work that was necessary before the winter season.
The City requires sidewalks to be installed prior to issuance of building permits in order to prevent builders from changing established grades required for sidewalks. This policy generally results in better
infrastructure. Therefore, Staff would not recommend that this change be made. However, if Council does wish to allow this change, Staff suggests that language be included to require the developer to install sidewalks according to the approved grading plan. Additionally, if Council does wish to allow this change, the Council should consider amending the Developer Agreement Template so that in the future all developers are treated equally in this regard. Draft Development Agreement amendments are proposed on pages 14 and 15 of the attached Development Agreements for reference. FISCAL IMPACT: Requiring sidewalks to be installed prior to the release of building permits could result in better
infrastructure, thereby possibly reducing future maintenance and repair costs. OPTIONS:
1) Approve Resolution No 2017-126 and 2017-127 denying Easton Village 2nd and 3rd
Additions Development Agreements amendment
2) Approve Resolution No 2017-126 and 2017-127 approving Easton Village 2nd and 3rd
Additions Development Agreements amendment 3) Amend and then Approve either Resolutions RECOMMENDATION:
“Motion to adopt Resolution No 2017-126 and 2017-127 denying the requests to amend Easton Village 2nd and 3rd Addition Development Agreements to allow building permits to be released prior to installation of sidewalks.” If the Council approves the amendments, Staff should also be directed to include this provision in the Development Agreement template to be used for future Development Agreements. “Motion to adopt Resolution No 2017-126 and 2017-127 approving the requests to amend Easton Village 2nd and 3rd Addition Development Agreements to allow building permits to be
released prior to installation of sidewalks.”
ATTACHMENTS:
• Resolution 2017-126 and 2017-127 denying the amendments to Easton Village 2nd and 3rd Additions Development Agreements.
• Resolution 2017-126 and 2017-127 approving the amendments to Easton Village 2nd and 3rd Additions Development Agreement
• Amended Development Agreement Drafts for Easton Village 2nd and 3rd Additions
1 Resolution 2017
CITY OF LAKE ELMO WASHINGTON COUNTY
STATE OF MINNESOTA RESOLUTION NO. 2017-126
A RESOLUTION DENYING AMENDMENTS TO THE APPROVED DEVELOPMENT AGREEMENT FOR EASTON VILLAGE 2ND ADDITION
WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing under the laws of the State of Minnesota; and WHEREAS, Chase Development, Inc. 2140 County Rd 42 W, Burnsville, MN 55337
(“Applicant”) has previously submitted an application to the City of Lake Elmo (“City”) for a
Final Plat for Easton Village 2nd Addition; and WHEREAS, The Lake Elmo City Council adopted Resolution No. 2017-040 on May 2, 2017 approving the Final Plat for Easton Village 2nd Addition; and
WHEREAS, The Lake Elmo City Council adopted Resolution No. 2017-057 on June 6, 2017, approving the Development Agreement for Easton Village 2nd Addition; and WHEREAS, the Applicant has requested that the Development Agreement for Easton
Village 2nd Addition be amended to allow building permits to be released prior to installation of sidewalks and to require installation of sidewalks prior to release of certificates of occupancy. WHEREAS, the City has established a Development Agreement template which requires that sidewalks be installed prior to release of building permits in order to help ensure
quality infrastructure, thereby potentially reducing future maintenance and repair costs. NOW, THEREFORE, based on the information received, the City Council of the City of Lake Elmo does hereby deny the amended Developer’s Agreement for Easton Village 2nd Addition.
Passed and duly adopted this 7th day of November 2017 by the City Council of the City of Lake Elmo, Minnesota.
__________________________________ Mike Pearson, Mayor ATTEST: ________________________________
Julie Johnson, City Clerk
1 Resolution 2017
CITY OF LAKE ELMO WASHINGTON COUNTY
STATE OF MINNESOTA RESOLUTION NO. 2017-127
A RESOLUTION DENYING AMENDMENTS TO THE APPROVED DEVELOPMENT AGREEMENT FOR EASTON VILLAGE 3RD ADDITION
WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing under the laws of the State of Minnesota; and WHEREAS, Chase Development, Inc. 2140 County Rd 42 W, Burnsville, MN 55337
(“Applicant”) has previously submitted an application to the City of Lake Elmo (“City”) for a
Final Plat for Easton Village 3rd Addition; and WHEREAS, The Lake Elmo City Council adopted Resolution No. 2017-076 on July 18, 2017 approving the Final Plat for Easton Village 3rd Addition; and
WHEREAS, The Lake Elmo City Council adopted Resolution No. 2017-081 on July 18, 2017, approving the Development Agreement for Easton Village 3rd Addition; and WHEREAS, the Applicant has requested that the Development Agreement for Easton
Village 3rd Addition be amended to allow building permits to be released prior to installation of
sidewalks and to require installation of sidewalks prior to release of certificates of occupancy. WHEREAS, the City has established a Development Agreement template which requires that sidewalks be installed prior to release of building permits in order to help ensure
quality infrastructure, thereby potentially reducing future maintenance and repair costs.
NOW, THEREFORE, based on the information received, the City Council of the City of Lake Elmo does hereby deny the amended Developer’s Agreement for Easton Village 3rd Addition.
Passed and duly adopted this 7th day of November 2017 by the City Council of the City of Lake Elmo, Minnesota.
__________________________________ Mike Pearson, Mayor ATTEST: ________________________________
Julie Johnson, City Clerk
1 Resolution 2017
CITY OF LAKE ELMO WASHINGTON COUNTY
STATE OF MINNESOTA RESOLUTION NO. 2017-126
A RESOLUTION APPROVING AMENDMENTS TO THE APPROVED DEVELOPMENT AGREEMENT FOR EASTON VILLAGE 2ND ADDITION
WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing under the laws of the State of Minnesota; and WHEREAS, Chase Development, Inc. 2140 County Rd 42 W, Burnsville, MN 55337
(“Applicant”) has previously submitted an application to the City of Lake Elmo (“City”) for a
Final Plat for Easton Village 2nd Addition; and WHEREAS, The Lake Elmo City Council adopted Resolution No. 2017-040 on May 2, 2017 approving the Final Plat for Easton Village 2nd Addition; and
WHEREAS, The Lake Elmo City Council adopted Resolution No. 2017-057 on June 6, 2017, approving the Development Agreement for Easton Village 2nd Addition; and WHEREAS, the Applicant and City have agreed to amend the approved Development
Agreement to allow building permits to be released prior to installation of sidewalks and to require installation of sidewalks prior to release of certificates of occupancy. NOW, THEREFORE, based on the information received, the City Council of the City of Lake Elmo does hereby approve the amended Developer’s Agreement for Easton Village 2nd
Addition and authorizes the Mayor and City Clerk to execute the document. Passed and duly adopted this 7th day of November 2017 by the City Council of the City of Lake Elmo, Minnesota.
__________________________________ Mike Pearson, Mayor ATTEST:
________________________________ Julie Johnson, City Clerk
1 Resolution 2017
CITY OF LAKE ELMO WASHINGTON COUNTY
STATE OF MINNESOTA RESOLUTION NO. 2017-127
A RESOLUTION APPROVING AMENDMENTS TO THE APPROVED DEVELOPMENT AGREEMENT FOR EASTON VILLAGE 3RD ADDITION
WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing under the laws of the State of Minnesota; and WHEREAS, Chase Development, Inc. 2140 County Rd 42 W, Burnsville, MN 55337
(“Applicant”) has previously submitted an application to the City of Lake Elmo (“City”) for a
Final Plat for Easton Village 3rd Addition; and WHEREAS, The Lake Elmo City Council adopted Resolution No. 2017-076 on July 18, 2017 approving the Final Plat for Easton Village 3rd Addition; and
WHEREAS, The Lake Elmo City Council adopted Resolution No. 2017-081 on July 18, 2017, approving the Development Agreement for Easton Village 3rd Addition; and WHEREAS, the Applicant and City have agreed to amend the approved Development
Agreement to allow building permits to be released prior to installation of sidewalks and to
require installation of sidewalks prior to release of certificates of occupancy. NOW, THEREFORE, based on the information received, the City Council of the City of Lake Elmo does hereby approve the amended Developer’s Agreement for Easton Village 3rd
Addition and authorizes the Mayor and City Clerk to execute the document.
Passed and duly adopted this 7th day of November 2017 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 AGREEMENT
(Public sewer and water) Easton Village 2nd Addition
THIS DEVELOPMENT AGREEMENT is dated ______________, 2017, by and between the
CITY OF LAKE ELMO, a Minnesota municipal corporation (the “City”), and to Chase
Development, Inc, a Minnesota Limited Liability Company (the “Developer”).
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a
plat for Easton Village 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 Letters of Credit (as hereinafter defined) have been received by the City
from or on behalf of the Developer including a $10,854 for park dedication that will be
released upon required dedication of park land with a future phase of the development.
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
construction inspection 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 MPCA, MDH, DNR, applicable
watershed, 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. the City has issued a written notice that all above conditions have been satisfied and that
the Developer may proceed;
N. Legal documents regarding homeowner association documents, covenants, and
restrictions have been submitted, reviewed and approval by the City Attorney; and
O. the Developer shall provide a Title Policy for all land dedicated to the City.
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 (5) years after preliminary plat
approval.
6. CHANGES IN OFFICIAL CONTROLS. For two (2) years from the date of this
Agreement, no amendments to the City's Comprehensive Plan or official controls shall apply to
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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. 2017-040, 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;
J. Intersection improvements (turn lanes, by-pass lanes, traffic control, etc.);
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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 38 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
construction progress and construction observation, consultation with the Developer and the
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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 (5) 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 twenty-five (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, 2017, with the exception of the final wear course of asphalt on
streets. The Developer shall install the bituminous wearing course of streets after the first course
has weathered a winter season, consistent with warranty requirements, however, final acceptance
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of the Subdivision Improvements by the City 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.
12. MAINTENANCE DURING CONSTRUCTION. The Developer shall be responsible for
all maintenance of the Subdivision Improvements including the snow plowing of the streets, roads
and alleys until the Subdivision Improvements are accepted by the City in writing. The developer
is also responsible to locate all underground utilities until the development 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. If and when streets
become impassable, such streets shall be barricaded and closed by the Developer. In the event
residences are occupied prior to completing streets, the Developer shall maintain a smooth
surface and provide proper surface drainage to ensure that the streets are passable for traffic and
emergency vehicles. The Developer shall be responsible for keeping streets within and without
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. At a minimum, scraping and sweeping shall take
place on a weekly basis.
Prior to the City’s acceptance of the streets the City may agree, at the City’s sole
discretion, to keep the streets open during winter months by plowing snow. The City will consider
snow plowing streets on a case by case basis and under the following conditions. 1) The
Developer must request in writing the streets in question to be plowed by the City, with such
request received prior to October 1st of each winter season that plowing is requested. 2) The
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streets must be occupied by residences of the City. 3) For streets that do not have the bituminous
wear course placed, the developer must install paved wedges along all curb lines and catch
basins. 4) Gate valves and manholes must be level with the pavement surface. 5) Street curves,
center medians, and other protrusions in the right-of-ways must be delineated with “High-vis”
fiberglass stakes. 6) A site review must be scheduled and conducted with Public Works, and
attended by the developer, to accept the streets for plowing prior to the commitment of plowing
by the City. 7) The City shall not be responsible for any damage caused by snow plowing
operations to the streets, curb and gutter, manholes, catch basins or other infrastructure.8) The
Developer shall enter into an Agreement with the City for plowing of the streets.
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 Linden
Avenue North and the Village Parkway. No construction traffic is permitted on other adjacent local
streets.
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
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
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Minnesota Pollution Control Agency’s best management practices, and other requirements
including the City’s permit with the Minnesota Pollution Control Agency 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 (7) 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 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
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
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
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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 storm sewers, sanitary sewers, watermain,
and streets, including turn lane and intersection 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. Curb and gutter, the first lift of the bituminous streets,
sidewalks, 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 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. The final bituminous wear course shall be installed by the Developer after the first
bituminous course has weathered a winter season. Prior to placement of the final bituminous
wear course, the Developer shall repair or replace all broken or failing curbs, sidewalks and
damaged or settled streets as determined by the City from a pre-wear course walk through
inspection.
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
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by the Developer must be warrantied and maintained for a period of two (2) years.
The two (2) year warranty period shall be deemed to start once all required
landscaping identified as responsibility of Developer in the approved Plans has
received acceptance by the City. The Developer agrees to have the installer of the
landscaping complete an inspection thirty (30) days prior to the end of the two (2)
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 lawns and yards 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 (3) 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 (8) inches free of eroded, bare, or dead spots and no visible surface soil.”
C. The Developer shall follow the City of Lake Elmo “Bee Safe” policy for pesticide use
as per City Council Resolution # 2015-13.
20. SIGNAGE, STREET LIGHTING AND OTHER UTILITIES. The Developer agrees to
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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.
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 be required to dedicate 9.84 acres of land
for public park purposes for the entire subdivision. The Developer was required to dedicate 3.99
acres with the Easton Village 1st Addition. Future phases shall either dedicate the remaining 5.85
acres park land or pay a cash payment in lieu of land dedication consistent with the Lake Elmo
Subdivision Ordinance. The developer shall provide a security in the form of a Letter of Credit in
the amount of $10,854 which represents fee in lieu of park dedication for the 5.2 acre final plat to
be released by the City when the required 5.85 acres of parkland is dedicated to the City with
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future phases. .
23. VILLAGE AREA AUAR FEE. The Developer shall be responsible for the
payment of the Village Area Alternative Urban Areawide Review (AUAR) fee as adopted
by the City Council with respect to the environmental review completed by the City. The
Village Area Alternative Urban Areawide Review (AUAR) fee in the amount of $230.00 per
REC shall be paid by the Developer prior to the City recording the final plat. The total
amount to be paid by the Developer is $4,370.00
24. 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 shall be paid by
the Developer to the City prior to recording the final plat. The total amount to be paid by the
Developer is $57,000.00.
The water availability charge (WAC) in the amount of $3,000.00 per REC shall be paid by
the Developer to the City prior to recording the final plat. The total amount to be paid by the
Developer is $57,000.00.
In addition, a sewer connection charge in the amount of $1,000.00 per REC, a
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 by the Developer and
collected by the City at the time the building permit is issued for each lot.
25. STREET LIGHTS. The Developer is responsible for the cost of street light installation
consistent with a street lighting plan approved by the City. Before the City signs the final plat, the
Developer shall post a Security for street light installation consistent with the approved plan. The
required Security is $48,000 and consist of seven (8) decorative lights at $6000 each, a Developer
14
shall also pay the City $1032 to reimburse the City for the first year operating costs for the street
lights.
26. WETLAND MITIGATION. The Developer shall complete wetland mitigation/restoration
in accordance with the approved Plans and in accordance with any applicable Watershed or
agency permits. If the mitigation work is found to be incomplete or restoration is unsuccessful,
the City may draw down the Security at any time during the warranty period to perform the work
if the Developer fails to take corrective measures after being provided reasonable notice by the
City.
27. 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, curbing and one lift of asphalt has been
installed and tested for all public streets; sidewalks have been installed; street and
traffic control signs are installed; property monuments have been installed 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. Issuance of a single building permit for a “model home” may be authorized by the
City Planning Director prior to the completion of the Subdivision Improvements
described in paragraph 27 (A) above, if there is safe public access to the lot that is
sufficient to allow construction to proceed and there is a grading as-built plan
approved by the City for the lot and all downstream storm water drainage facilities.
15
However, the City will not issue a certificate of occupancy for any “model home” until
all conditions identified in paragraph 27 (A) above have been completed. The
Developer shall use the model home only for real estate sales purposes and no other
purposes.
C. 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 Planning Department.
D. 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.
E. 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.
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. No certificate of occupancy will be issued for any lot within the Subdivision in a City
preapproved phasing plan until such time that sidewalks have been installed
continuously from end of street to end of street in such phase without exceptions.
The Developer is responsible for installing sidewalks to the approved grading plan.
F.
28. RESPONSIBILITY FOR COSTS.
Formatted: Indent: Left: 0.88", No bullets ornumbering
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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 letter of credit 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
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
17
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.
The Developer shall pay in full all bills submitted to it by the City for obligations incurred under
this Agreement within thirty (30) days after receipt. Bills not paid within thirty (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.
29. RAILROAD CROSSING IMPROVEMENTS. The Developer shall be required to pay
for a portion of the costs to secure, build and install a public rail crossing at the location shown in
Exhibit B to specifications required by the City, the Minnesota Department of Transportation, the
Union Pacific Rail Road and any other regulatory agency having jurisdiction over the crossing and
the track in accordance with the specifications of the City of Lake Elmo. The Developer’s portion
of these costs shall be calculated based on the percentage of the overall number of Residential
Equivalency Connection (REC) units planned for developments that will directly access the Village
Parkway minor collector road between Washington County Highway 14 and 30th Street divided
by the estimated overall project costs. The City will request that all future development projects
connecting directly to Village Parkway contribute towards said crossing improvement. The
Developer shall provide all property in fee and/or easements as required by the City necessary to
establish the railroad crossing. The Developer paid $63,000 out of the estimated $193,000 to the
City for its share of the estimated cost railroad crossing improvements with the final plat of Easton
Village 1st Addition.
A. The amount of the cash payment for Easton Village 2nd Addition shall be $16,791
which was calculated as follows: $193,000 (Easton Village’s share of the
estimated project costs multiplied by 8.7% (19 Lots / 217 Lots in all phases) =
18
$16,791. In addition, the Developer shall pay the amount remaining due from
Easton Village 1st Addition, $111, which should have been calculated as:
$193,000 (Easton Village’s share of the estimated project costs multiplied by
32.7% (71 Lots / 217 Lots in all phases) = $63,111, less the $63,000 previously
paid. The total payment shall be $16,902 to fulfill the requirements for phase 1
and phase 2.
B. The calculation for future railroad crossing costs has been determined as follows:
Parcel ID(s) Percentage Total Costs
Easton Village
13.029.21.14.0002
13.029.21.42.0001
13.029.21.41.0001
13.029.21.13.0001
38.6%
$193,000
13.029.21.43.0004
13.029.21.44.0002
17.8% $89,000
13.029.21.12.0001
13.029.21.14.0002
30.2% $151,000
13.029.21.24.0001 13.4% $67,000
Totals 100% $500,000
C. If the construction amount of the railroad crossing installation exceeds
$500,000, the additional cost shall be allocated proportionally to the parcels listed above upon
consent of all property owners and the City. The City may participate in the additional costs of
construction of the railroad crossing if it is deemed to be necessary as a matter of public safety.
30. SPECIAL PROVISIONS. The following special provisions shall apply to the
Subdivision:
A. Implementation of the recommendations listed in the April 12, 2017, Engineering
memorandum.
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B. The Developer shall install a temporary turnaround on the north end of Linden
Avenue N and the north end of the Village Parkway until it is extended to the north
with the future phase of the Easton Village development.
C. The Developer must obtain a sign permit from the City Building Official prior to
installation of any subdivision identification signs.
D. The Developer shall enter into a Landscape License Agreement with the City that
clarifies the individuals or entities responsible for maintenance of any landscaping
installed in areas outside of land dedicated as public park and open space on the
final plat.
E. The Village Parkway shall be constructed complying with the Village Parkway
Typical Section and Village Parkway Collector Design Guidelines as modified with
the approval of the Easton Village 2nd Addition Final Plat.
31. 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
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.
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C. Legal documents regarding homeowner association documents, 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 (6) 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
thirty (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
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.
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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.
32. 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:
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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.
33. 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.
34. 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
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
23
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.
35. 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
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 home buyers if the Developer
24
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 (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 of the work.
C. The required warranty period for sod, trees, and landscaping is two (2) years from
the date of final written City acceptance of the installation.
36. 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 $702,776. 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
City within 45 days with a substitute letter of credit from an issuing bank satisfactory to the City,
25
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 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 by the City to cure the default.
37. 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, one hundred (100) percent, or $47,858, 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 $107,928 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
have been verified, and the utilities are considered ready for use by the City
26
Engineer.
2. Construction Categories 4 and 5: The amount of $263,651 may be released
when all streets, sidewalks, and storm sewer 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 and including
verification of storm sewer as-built inverts, but not including the final wear
course.
3. Construction Categories 6-10 and 14-17: The amount of $76,477 may be
released when all remaining Developer’s obligations under this Agreement
have been completed including: (1) bituminous wear course; (2) street lighting
and private utilities; (3) trails; (4) bio retention facilities; (5) iron monuments for
lot corners have been installed; (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 $43,133 may be
released when landscaping Subdivision Improvements have been installed to
the satisfaction of the City Landscape Architect including all corrective work for
any identified punch list items.
C. Twenty-five (25) 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 (25%) of the original Security amount associated with
landscaping shall be retained by the City until: (1) all landscaping Subdivision
27
Improvements 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. In addition to the above project milestone based Security reductions, the
Developer may submit a written request and upon receipt of proof satisfactory to
the City Engineer that work is progressing 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 a one-time reduction in the Security
for Construction Categories 2-5 in an amount not to exceed fifty (50) percent of the
initial Security amount.
F. 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.
38. 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:
Sewer Availability Charge (SAC): $57,000 Water Availability Charge (WAC): $57,000 Park Dedication (Letter of Credit in amount of $10,584): N/A AUAR Fee: $4,370 Railroad Crossing Improvement Contribution: $16,902 Special Assessments Due: $0 Street Light Operating Fee: $1032
City Base Map Upgrading ($25.00 per REU): $475 City Engineering Administration Escrow: $50,000 TOTAL CASH REQUIREMENTS: $186,779
28
39. 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: 2140 County Rd 42 W, Burnsville, MN 55337. 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.
40. EVIDENCE OF TITLE. Developer shall furnish the City with evidence of fee ownership
of the property being platted by way of an attorney’s title insurance policy dated not earlier than
thirty (30) days prior to the execution of the plat.
41. 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.
42. 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.
43. 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
29
default.
44. 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.
30
CITY OF LAKE ELMO By: ____________ __________________ Its: Mayor By: __________________ _____________ Its: City Clerk
STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this ___ day of ________________, 2017, 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
31
Easton Village, LLC
By: ___________________________________
Its: ___________________________________
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ___, day of _________________, 2017, by _______________________, the _______________________of ____________________________________.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
32
FEE OWNER CONSENT TO DEVELOPMENT AGREEMENT
, fee owners of all or part of the subject property, the development of which is governed by the foregoing Development Agreement, 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 , 2017.
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of _____________, 2017.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
33
MORTGAGE CONSENT TO DEVELOPMENT AGREEMENT
, which holds a mortgage on the Property, the development of which is governed by the foregoing Development Agreement, agrees that the Development Agreement shall remain in full force and effect even if it forecloses on its mortgage. Dated this day of , 2017.
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of ________________, 20017, by _______________________________________________________________.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
34
CONTRACT PURCHASER CONSENT TO DEVELOPMENT AGREEMENT
, which/who has a contract purchaser's interest in all or part of the Property, the development of which is governed by the foregoing Development Agreement, hereby affirms and consents to the provisions thereof and agrees to be bound by the provisions as the same may apply to that portion of the Property in which there is a contract purchaser's interest. Dated this ___ day of ________________, 2017.
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of _______________, 2017, by ________________________________________________________________.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
A-1
EXHIBIT A TO DEVELOPMENT CONTRACT Legal Description of Property Being Final Platted as
Outlot F, Easton Village, Washington County, Minnesota
B-1
EXHIBIT B TO DEVELOPMENT CONTRACT List of Plan Documents The following documents prepared by Erickson Civil, and Pioneer Engineering, collectively constitute the Plans: THOSE DOCUMENTS BY AS FOLLOWS: SHEET TITLE REVISION DATE
C1 Title Sheet
C2 Existing Conditions
C3 Grading Standard Plan Notes
C4-C5 Erosion Control and Site Restoration Plan
C6-C7 Grading Plan
C8
Site Layout, Lighting and Signing Plan
C9-C11 Street Plan and Profile
C12-C14
Sanitary Sewer & Watermain Plan & Profile
C15 Details
C16-C22 City Standard Detail Plates
L1 Landscape Plan
L2 Landscape Plan Details
C-1
EXHIBIT C TO DEVELOPMENT CONTRACT Subdivision Improvements Cost/Security Amount Estimate CONSTRUCTION CATEGORY COST 125% 1 Grading $ 38,286 $ 47,858
2 Sanitary Sewer $ 54,276 $ 67,845
3 Watermain $ 60,848 $ 76,059
4 Storm Sewer (includes pond structures and outfall pipes) $ 54,920 $ 68,650
5 Streets and Sidewalks $ 226,308 $ 282,885
6 Trails $ 12,570 $ 15,713
7 Surface Water Facilities (ponds, infiltration basins, other BMPs) $ - $ -
8 Street Lighting $ 48,000 $ 60,000
9 Street and Traffic Signs $ 700 $ 875
10 Private Utilities (electricity, natural gas, telephone, and cable)
$ -
11 Landscaping Improvements $ 46,008 $ 57,510
12 Tree Preservation and Restoration $ -
13 Wetland Mitigation and Buffers $ -
14 Monuments $ 1,900 $ 2,375
15 Erosion and Sedimentation Control $ 15,406 $ 19,257
16 Miscellaneous Facilities $ -
17 Developer’s Record Drawings $ 3,000 $ 3,750
TOTALS $ 562,221 $ 702,776
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
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(reserved for recording information)
DEVELOPMENT AGREEMENT
(Public sewer and water) Easton Village 3rd Addition
THIS DEVELOPMENT AGREEMENT is dated ______________, 2017, by and between the
CITY OF LAKE ELMO, a Minnesota municipal corporation (the “City”), and Chase Development
Inc (the “Developer”).
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a
plat for Easton Village 3rd 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 prepared deeds conveying fee title of Outlots B, I and J to the City
and provided copies of the executed warranty deed to the City for recording with
Washington County;
B. 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;
C. the Developer has executed and recorded with Washington County the storm water
maintenance and easement agreement in the City’s standard form;
D. this Agreement has been executed by the Developer and the City;
E. the required Letters of Credit (as hereinafter defined) have been received by the City
from or on behalf of the Developer;
F. final construction plans and specifications have been submitted by the Developer and
approved by the City Engineer;
G. 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
construction inspection escrow required by this Agreement;
H. the Developer has paid any outstanding assessments and taxes for the property or
property being deeded to the City;
I. the Developer has fulfilled any park dedication requirements as specified under this
Agreement;
J. the Developer has received all necessary permits from the MPCA, MDH, DNR, applicable
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watershed, Washington County, and any other agency having jurisdiction over the
Subdivision;
K. the Developer has provided the City with a certificate of insurance required by this
Agreement;
L. 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;
M. the final plat has been recorded with Washington County;
N. the City has issued a written notice that all above conditions have been satisfied and that
the Developer may proceed;
O. Legal documents regarding homeowner association documents, covenants, and
restrictions have been submitted, reviewed and approval by the City Attorney; and
P. the Developer shall provide a Title Policy for all land dedicated to the City.
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 (5) years after preliminary plat
approval.
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6. CHANGES IN OFFICIAL CONTROLS. For two (2) years from the date of this
Agreement, 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. 2017-076, 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;
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H. Landscaping;
I. Street lighting and signage;
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 39 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
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replenished in its full amount. City administration and oversight will include monitoring of
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 (5) 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 twenty-five (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, 2017, with the exception of the final wear course of asphalt on
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streets. The Developer shall install the bituminous wearing course of streets after the first course
has weathered a winter season, consistent with warranty requirements, however, final acceptance
of the Subdivision Improvements by the City 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.
12. MAINTENANCE DURING CONSTRUCTION. The Developer shall be responsible for
all maintenance of the Subdivision Improvements including the snow plowing of the streets, roads
and alleys until the Subdivision Improvements are accepted by the City in writing. The developer
is also responsible to locate all underground utilities until the development 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. If and when streets
become impassable, such streets shall be barricaded and closed by the Developer. In the event
residences are occupied prior to completing streets, the Developer shall maintain a smooth
surface and provide proper surface drainage to ensure that the streets are passable for traffic and
emergency vehicles. The Developer shall be responsible for keeping streets within and without
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. At a minimum, scraping and sweeping shall take
place on a weekly basis.
Prior to the City’s acceptance of the streets the City may agree, at the City’s sole
discretion, to keep the streets open during winter months by plowing snow. The City will consider
snow plowing streets on a case by case basis and under the following conditions. 1) The
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Developer must request in writing the streets in question to be plowed by the City, with such
request received prior to October 1st of each winter season that plowing is requested. 2) The
streets must be occupied by residences of the City. 3) For streets that do not have the bituminous
wear course placed, the developer must install paved wedges along all curb lines and catch
basins. 4) Gate valves and manholes must be level with the pavement surface. 5) Street curves,
center medians, and other protrusions in the right-of-ways must be delineated with “High-vis”
fiberglass stakes. 6) A site review must be scheduled and conducted with Public Works, and
attended by the developer, to accept the streets for plowing prior to the commitment of plowing
by the City. 7) The City shall not be responsible for any damage caused by snow plowing
operations to the streets, curb and gutter, manholes, catch basins or other infrastructure.8) The
Developer shall enter into an Agreement with the City for plowing of the streets.
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 32nd Street
North and the Village Parkway. No construction traffic is permitted on other adjacent local streets.
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
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
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City’s Engineering Design and Construction Standards Manual, all watershed district permits, the
Minnesota Pollution Control Agency’s best management practices, and other requirements
including the City’s permit with the Minnesota Pollution Control Agency 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 (7) 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 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
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
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.
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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 storm sewers, sanitary sewers, watermain,
and streets, including turn lane and intersection 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. Curb and gutter, the first lift of the bituminous streets,
sidewalks, 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 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. The final bituminous wear course shall be installed by the Developer after the first
bituminous course has weathered a winter season. Prior to placement of the final bituminous
wear course, the Developer shall repair or replace all broken or failing curbs, sidewalks and
damaged or settled streets as determined by the City from a pre-wear course walk through
inspection.
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
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landscaping materials such as trees, shrubs, grasses, or other vegetation installed
by the Developer must be warrantied and maintained for a period of two (2) years.
The two (2) year warranty period shall be deemed to start once all required
landscaping identified as responsibility of Developer in the approved Plans has
received acceptance by the City. The Developer agrees to have the installer of the
landscaping complete an inspection thirty (30) days prior to the end of the two (2)
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 lawns and yards 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 (3) 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 (8) 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
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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.
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 is required to dedicate 9.84 acres of land for
public park purposes for the entire development. The Developer dedicated 3.99 acres with Easton
Village 1st Addition. The Developer provided a Letter of Credit in the amount of $10,854 which
represented fee in lieu of park dedication for the Easton Village 2nd Addition final plat. The
Developer shall dedicate Outlots B, I and J, satisfying the remaining required 5.85 acres park land
consistent with the Lake Elmo Subdivision Ordinance. Upon recording of warranty deeds for the
Outlots B, I and J, the Letter of Credit in the amount of $10,854 which represented fee in lieu of
park dedication for the Easton Village 2nd Addition final plat shall be released by the City.
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23. VILLAGE AREA AUAR FEE. The Developer shall be responsible for the
payment of the Village Area Alternative Urban Areawide Review (AUAR) fee as adopted
by the City Council with respect to the environmental review completed by the City. The
Village Area Alternative Urban Areawide Review (AUAR) fee in the amount of $230.00 per
REC shall be paid by the Developer prior to the City recording the final plat. The total
amount to be paid by the Developer is $6,440.00
24. 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 shall be paid by
the Developer to the City prior to recording the final plat. The total amount to be paid by the
Developer is $84,000.00.
The water availability charge (WAC) in the amount of $3,000.00 per REC shall be paid by
the Developer to the City prior to recording the final plat. The total amount to be paid by the
Developer is $84,000.00.
In addition, a sewer connection charge in the amount of $1,000.00 per REC, a
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 by the Developer and
collected by the City at the time the building permit is issued for each lot.
25. STREET LIGHTS. The Developer is responsible for the cost of street light installation
consistent with a street lighting plan approved by the City. Before the City signs the final plat, the
Developer shall post a Security for street light installation consistent with the approved plan. The
required Security is $12,000 and consist of two (2) decorative lights at $6000 each, a Developer
shall also pay the City $258 to reimburse the City for the first year operating costs for the street
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lights.
26. WETLAND MITIGATION. The Developer shall complete wetland mitigation/restoration
in accordance with the approved Plans and in accordance with any applicable Watershed or
agency permits. If the mitigation work is found to be incomplete or restoration is unsuccessful,
the City may draw down the Security at any time during the warranty period to perform the work
if the Developer fails to take corrective measures after being provided reasonable notice by the
City.
27. 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, curbing and one lift of asphalt has been
installed and tested for all public streets; sidewalks have been installed; street and
traffic control signs are installed; property monuments have been installed 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. Issuance of a single building permit for a “model home” may be authorized by the
City Planning Director prior to the completion of the Subdivision Improvements
described in paragraph 27 (A) above, if there is safe public access to the lot that is
sufficient to allow construction to proceed and there is a grading as-built plan
approved by the City for the lot and all downstream storm water drainage facilities.
However, the City will not issue a certificate of occupancy for any “model home” until
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all conditions identified in paragraph 27 (A) above have been completed. The
Developer shall use the model home only for real estate sales purposes and no other
purposes.
C. 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 Planning Department.
D. 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.
E. 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.
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. No certificate of occupancy will be issued for any lot within the Subdivision in a City
preapproved phasing plan until such time that sidewalks have been installed
continuously from end of street to end of street in such phase without exceptions.
The Developer is responsible for installing sidewalks to the approved grading plan.
F.
28. RESPONSIBILITY FOR COSTS.
A. In the event that the City receives claims from labor, materialmen, or others that work
Formatted: Indent: Left: 0.88", No bullets ornumbering
16
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 letter of credit 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
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.
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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.
The Developer shall pay in full all bills submitted to it by the City for obligations incurred under
this Agreement within thirty (30) days after receipt. Bills not paid within thirty (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.
29. RAILROAD CROSSING IMPROVEMENTS. The Developer shall be required to pay
for a portion of the costs to secure, build and install a public rail crossing at the location shown in
Exhibit B to specifications required by the City, the Minnesota Department of Transportation, the
Union Pacific Rail Road and any other regulatory agency having jurisdiction over the crossing and
the track in accordance with the specifications of the City of Lake Elmo. The Developer’s portion
of these costs shall be calculated based on the percentage of the overall number of Residential
Equivalency Connection (REC) units planned for developments that will directly access the Village
Parkway minor collector road between Washington County Highway 14 and 30th Street divided
by the estimated overall project costs. The City will request that all future development projects
connecting directly to Village Parkway contribute towards said crossing improvement. The
Developer shall provide all property in fee and/or easements as required by the City necessary to
establish the railroad crossing. The Developer paid $63,000 out of the estimated $193,000 to the
City for its share of the estimated cost railroad crossing improvements with the final plat of Easton
Village 1st Addition. The Developer paid $16,902 with the final plat of Easton Village 2nd Addition.
A. The amount of the cash payment for Easton Village 3rd Addition shall be $24,897
which was calculated as follows: $193,000 (Easton Village’s share of the
estimated project costs multiplied by 12.9% (28 Lots / 217 Lots in all phases) =
$24,897.
18
B. The calculation for future railroad crossing costs has been determined as follows:
Parcel ID(s) Percentage Total Costs
Easton Village
13.029.21.14.0002
13.029.21.42.0001
13.029.21.41.0001
13.029.21.13.0001
38.6%
$193,000
13.029.21.43.0004
13.029.21.44.0002
17.8% $89,000
13.029.21.12.0001
13.029.21.14.0002
30.2% $151,000
13.029.21.24.0001 13.4% $67,000
Totals 100% $500,000
C. If the construction amount of the railroad crossing installation exceeds $500,000, the
additional cost shall be allocated proportionally to the parcels listed above upon consent
of all property owners and the City. The Developer agrees to pay its proportionate share
of the additional cost with respect to the parcels owned by the Developer. The City may
participate in the additional costs of construction of the railroad crossing if it is deemed to
be necessary as a matter of public safety.
30. CITY PAYMENTS. The City shall reimburse the Developer in the amount of $3,960 for
oversizing costs associated with the installation of 8 inch water main as identified on the Plans.
City payments shall be made within thirty (30) days of the City’s final acceptance of the
Improvements, but only if the Developer is not in default to this Contract. 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.
31. SPECIAL PROVISIONS. The following special provisions shall apply to the
19
Subdivision:
A. Implementation of the recommendations listed in the May 25 2017, Engineering
memorandum.
B. The Developer shall install a temporary turnaround on the north end of Lilac Avenue
N to remain until it Lilac Avenue N is extended to the north with the future phase of
the Easton Village development.
C. The Developer shall install a temporary road access a from 33rd Street North to the
Village Parkway to remain until Outlot C, Easton Village 3rd Addition is platted into
lots.
D. The Developer must obtain a sign permit from the City Building Official prior to
installation of any subdivision identification signs.
E. The Developer shall enter into a Landscape License Agreement with the City that
clarifies the individuals or entities responsible for maintenance of any landscaping
installed in areas outside of land dedicated as public park and open space on the
final plat.
32. 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
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
20
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 homeowner association documents, 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 (6) 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
thirty (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
21
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.
22
33. 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.
34. 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.
35. 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
23
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.
36. 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
24
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 home 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 (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 of the work.
C. The required warranty period for sod, trees, and landscaping is two (2) years from
the date of final written City acceptance of the installation.
37. 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 $1,104,400.
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
25
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
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 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 by the City to cure the default.
38. 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, one hundred (100) percent, or $245,306,
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 $231,200 may be released
26
when all sanitary sewer and watermain utilities have been installed, all testing
and televising has been successfully completed, sanitary sewer as-built inverts
have been verified, and the utilities are considered ready for use by the City
Engineer.
2. Construction Categories 4 and 5: The amount of $258,617 may be released
when all streets, sidewalks, and storm sewer 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 and including
verification of storm sewer as-built inverts, but not including the final wear
course.
3. Construction Categories 6-10 and 14-17: The amount of $62,092 may be
released when all remaining Developer’s obligations under this Agreement
have been completed including: (1) bituminous wear course; (2) street lighting
and private utilities; (3) trails; (4) bio retention facilities; (5) iron monuments for
lot corners have been installed; (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 $92,412 may be
released when landscaping Subdivision Improvements have been installed to
the satisfaction of the City Landscape Architect including all corrective work for
any identified punch list items.
C. Twenty-five (25) 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
27
City have been satisfied; and (3) the warranty period has expired.
D. Twenty-five percent (25%) of the original Security amount associated with
landscaping shall be retained by the City until: (1) all landscaping Subdivision
Improvements 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. In addition to the above project milestone based Security reductions, the
Developer may submit a written request and upon receipt of proof satisfactory to
the City Engineer that work is progressing 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 a one-time reduction in the Security
for Construction Categories 2-5 in an amount not to exceed fifty (50) percent of the
initial Security amount.
F. 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.
39. 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:
Sewer Availability Charge (SAC): $84,000 Water Availability Charge (WAC): $84,000 Park Dedication N/A AUAR Fee: $6,440 Railroad Crossing Improvement Contribution: $24,897
28
Special Assessments Due: $0 Street Light Operating Fee: $258 City Base Map Upgrading ($25.00 per REU): $700 City Engineering Administration Escrow: $50,000 TOTAL CASH REQUIREMENTS: $ 250,295
40. 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: 2140 County Rd 42 W, Burnsville, MN 55337. 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.
41. EVIDENCE OF TITLE. Developer shall furnish the City with evidence of fee ownership
of the property being platted by way of an attorney’s title insurance policy dated not earlier than
thirty (30) days prior to the execution of the plat.
42. 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.
43. 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.
44. 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
29
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.
45. 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.
30
CITY OF LAKE ELMO By: ____________ __________________ Its: Mayor By: __________________ _____________ Its: City Clerk
STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this ___ day of ________________, 2017, 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
31
Chase Development Inc
By: ___________________________________
Its: ___________________________________
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ___, day of _________________, 2017, by _______________________, the _______________________of ____________________________________.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
32
FEE OWNER CONSENT TO DEVELOPMENT AGREEMENT
, fee owners of all or part of the subject property, the development of which is governed by the foregoing Development Agreement, 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 , 2017.
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of _____________, 2017.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
33
MORTGAGE CONSENT TO DEVELOPMENT AGREEMENT
, which holds a mortgage on the Property, the development of which is governed by the foregoing Development Agreement, agrees that the Development Agreement shall remain in full force and effect even if it forecloses on its mortgage. Dated this day of , 2017.
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of ________________, 20017, by _______________________________________________________________.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
34
CONTRACT PURCHASER CONSENT TO DEVELOPMENT AGREEMENT
, which/who has a contract purchaser's interest in all or part of the Property, the development of which is governed by the foregoing Development Agreement, hereby affirms and consents to the provisions thereof and agrees to be bound by the provisions as the same may apply to that portion of the Property in which there is a contract purchaser's interest. Dated this ___ day of ________________, 2017.
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of _______________, 2017, by ________________________________________________________________.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
A-1
EXHIBIT A TO DEVELOPMENT CONTRACT Legal Description of Property Being Final Platted as:
Outlot F, Easton Village, Washington County, Minnesota, according to the recorded plat thereof, excepting all that part of Easton Village 2nd Addition, Washington County, Minnesota
B-1
EXHIBIT B TO DEVELOPMENT CONTRACT List of Plan Documents The following documents prepared by Erickson Civil, and Pioneer Engineering, collectively constitute the Plans: THOSE DOCUMENTS BY AS FOLLOWS: SHEET TITLE REVISION DATE
C1 Title Sheet 07/10/2017
C2-C4 Existing Conditions 07/10/2017
C5 Grading Standard Plan Notes 07/10/2017
C6-C8 Erosion Control and Site Restoration Plan
07/10/2017
C9-C11 Grading Plan 07/10/2017
C12
Site Layout, Lighting and Signing Plan
07/10/2017
C13-C14 Street Plan and Profile 07/10/2017
C15-C16
Sanitary Sewer & Watermain Plan & Profile
07/10/2017
C17 Storm Sewer Plan & Profile 07/10/2017
C18-C25 Details 07/10/2017
L1 Landscape Plan 07/17/2017
L2 Landscape Plan Details 07/17/2017
C-1
EXHIBIT C TO DEVELOPMENT CONTRACT Subdivision Improvements Cost/Security Amount Estimate
CONSTRUCTION CATEGORY COST 125% 1 Grading $
196,245
$
245,306
2 Sanitary Sewer $
118,179
$
147,724
3 Watermain $ 128,435 $ 160,544
4 Storm Sewer (includes pond
structures and outfall pipes) $ 118,267 $ 147,834
5 Streets and Sidewalks $
157,590
$
196,988
6 Trails $
14,600
$
18,250
7 Surface Water Facilities (ponds,
infiltration basins, other BMPs) $
-
$
-
8 Street Lighting $ 12,000 $ 15,000
9 Street and Traffic Signs $ 1,850 $ 2,313
10 Private Utilities (electricity,
natural gas, telephone, and cable)
$
-
11 Landscaping Improvements $
98,573
$
123,216
12 Tree Preservation and
Restoration
$
-
13 Wetland Mitigation and Buffers $ -
14 Monuments $ 2,800 $ 3,500
15 Erosion and Sedimentation
Control
$
29,982
$
37,477
16 Miscellaneous Facilities $
-
17 Developer’s Record Drawings $
5,000
$
6,250
TOTALS $
883,520
$
1,104,400
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C-2
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