HomeMy WebLinkAbout#23 - Four Corners Development Agreement STAFF REPORT
DATE: 10/16/2018
REGULAR
ITEM #: 23
MOTION
TO: City Council
FROM: Emily Becker, Planning Director
AGENDA ITEM: Four Corners 1st Addition
REVIEWED BY: Jack Griffin, City Engineer Sarah Sonsalla, City Attorney
Kristina Handt, City Administrator
BACKGROUND: On July 17, 2018, the City Council adopted Resolution 2018-076 approving the Final Plat for Four
Corners 1st Addition. An executed developer’s agreement is a condition of final plat approval and
is required prior to recording the final plat with Washington County.
ISSUE BEFORE COUNCIL: The City Council is being asked to adopt Resolution 2018-__ approving the developer agreement for Four Corners 1st Addition. REVIEW/ANALYSIS: A condition of approval of the Four Corners 1st Addition Final Plat is that the developer enter into
a Developer’s Agreement prior to the execution of the plat by City officials. The key aspects of
the agreement include the following components:
• That all public improvements to be completed by October 31, 2019 due to phasing within the addition.
• That the developer provide a letter of credit in the amount of $1,136,805 related to the cost
of the proposed improvements.
• That the developer provide a cash deposit of $459,525 for park dedication, engineering administration escrow, a cash contribution in lieu of taxes, and the city’s cost share of
Hudson Boulevard and Manning Avenue Traffic Signal.
The construction plans are still being reviewed by the City Engineer. Upon execution of this
Agreement, receipt of all fees and securities, recording of the final plat and the completion of a
Preconstruction meeting with the City, construction can commence.
FISCAL IMPACT:
City Council – Staff Report
Page 2
The future financial impacts include maintenance of sanitary sewer mains, watermains and other
public infrastructure, maintenance of storm water ponding areas (after warranty period), and other
public financial responsibilities typically associated with a new development. The City will collect
any necessary building permit fees, Sewer Accessibility Charges and Water Accessibility Charges
and property taxes at the time of building permit application.
OPTIONS: The City Council is being asked to consider the approval of the developer’s agreement and has the following options:
1) Adopt Resolution 2018-120 approving the developer agreement for Four Corners 1st Addition; or
2) Direct Staff to amend the draft developer agreement to bring back to a future City Council meeting. RECOMMENDATION:
Staff recommends the City Council adopt Resolution 2018-120 approving the developer’s
agreement for Four Corners 1st Addition with the following motion:
“Move to adopt Resolution 2018-120 approving the developer’s agreement for Four Corners
1st Addition”
ATTACHMENTS:
• Resolution 2018-120
• Four Corners 1st Addition Development Agreement
CITY OF LAKE ELMO WASHINGTON COUNTY
STATE OF MINNESOTA RESOLUTION NO. 2018-120 A RESOLUTION APPROVING A DEVELOPMENT AGREEMENT FOR FOUR CORNERS 1ST
ADDITION
WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing under the laws of the State of Minnesota; and
WHEREAS, EN Properties, LLC, 11530 Hudson Boulevards North, Lake Elmo, MN 55042 (“Developer”) has previously submitted an application to the City of Lake Elmo (“City”) for Final Plat to be called Four Corners 1st Addition, a copy of which is on file in the City Planning Department; and
WHEREAS, the Lake Elmo City Council adopted Resolution 2018-076 approving the Four Corners 1st Addition Final Plat on July 17, 2018; and WHEREAS, a condition of approval of said Resolution 2018-076 establishes that prior
to execution of the Final Plat by City officials, the Applicant shall enter into a Development
Agreement with the City; and. WHEREAS, the Developer and the City have agreed to enter into such a contract and a copy of the Development Agreement was submitted to the City Council for consideration at its
October 2, 2018 meeting;
NOW, THEREFORE, BE IT RESOLVED THAT the City Council does hereby approve the Development Agreement for Four Corners 1st Addition and authorizes the mayor and city Clerk to execute the document.
Passed and duly adopted this 16th day of October, 2018 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) Four Corners 1st Addition
THIS DEVELOPMENT AGREEMENT is dated ______________, 2018, by and between the
CITY OF LAKE ELMO, a Minnesota municipal corporation (the “City”) and EN Properties, LLC,
a Minnesota limited liability company (the “Developer”).
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a
plat for Four Corners 1st 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 180 days after the City
Council approves the final plat.
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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
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 or the easements have been dedicated to the City on
the plat;
B. the Developer has executed and recorded with Washington County the Storm Water
Maintenance and Easement Agreement in the City’s standard form;
C. this Agreement has been executed by the Developer and the City;
D. the required Security (as hereinafter defined) have been received by the City from or on
behalf of the Developer;
E. final construction plans and specifications have been submitted by the Developer and
approved by the City Engineer;
F. the Developer has paid the City for all legal, engineering, and administrative expenses
incurred by the City regarding the City approvals and has given the City the additional
City Engineering Administration Escrow required by this Agreement;
G. the Developer has paid any outstanding assessments and taxes for the property or
property being deeded to the City;
H. the Developer has fulfilled any park dedication requirements as specified under this
Agreement;
I. the Developer has received all necessary permits from the MPCA, MDH, DNR, applicable
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watershed, Washington County, and any other agency having jurisdiction over the
Subdivision;
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. a title insurance policy has been issued in the amount of $100,000 in favor of the City
insuring the City’s interests as they appear on the plat; and
N. the City has issued a written notice that all above conditions have been satisfied and that
the Developer may proceed;
4. PHASED DEVELOPMENT. If the plat is a phase of a multi-phased preliminary plat,
the City may refuse to approve final plats of subsequent phases of the development if the
Developer is not in compliance with any term of this Agreement and the non-compliance has not
been remedied. Development of subsequent phases of the development may not proceed until
development agreements for such phases are approved by the City. Park dedication charges
and availability charges for sewer and water referred to in this Agreement are not being imposed
on outlots that are designated in the plat for future subdivision into lots and blocks, if any, in the
plat. Such charges will be calculated and imposed when these outlots, if any, are platted into lots
and blocks.
5. PRELIMINARY PLAT STATUS. If the Subdivision is a phase of a multi-phased
preliminary plat, the preliminary plat approval for all phases not final platted shall lapse and be
void unless final platted into lots and blocks, not outlots, within five years after preliminary plat
approval.
6. CHANGES IN OFFICIAL CONTROLS. For five years from the date of this Agreement,
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no amendments to the City's Comprehensive Plan or official controls shall apply to or affect the
use, development density, lot size, lot layout or dedications of the approved final plat unless
required by state or federal law or agreed to in writing by the City and the Developer. Thereafter,
notwithstanding anything in this Agreement to the contrary, to the full extent permitted by state
law, the City may require compliance with any changes to the City's Comprehensive Plan, official
controls, platting, or dedication requirements enacted after the date of this Agreement.
7. DEVELOPMENT PLANS. The Developer agrees to develop the Property in
accordance with the City approvals, including the terms and conditions of approval of the final plat
as detailed in City Council Resolution No. 2018-076, 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. Hudson Boulevard improvements;
F. Streets;
G. Trails;
H. Underground private utilities;
I. Landscaping;
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J. Intersection improvements (turn lanes, by pass lanes, traffic control, etc.);
K. Tree preservation and reforestation; and
L. 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 33 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 Developer’s professionals on status or
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problems regarding the project, coordination for testing, final inspection and acceptance, project
monitoring during the warranty period, and processing of requests for reduction in the Security.
Construction observation shall include, at the discretion of the City, part or full time inspection of
proposed public utilities and street construction. Services will be billed by the City on an hourly
basis.
The direction and review provided by the City through the inspection of the Subdivision
Improvements should not be considered a substitute for the Developer-required management of
the construction of the Subdivision Improvements. The Developer must require the Developer’s
contractor(s) to furnish the City with a schedule of proposed operations at least five days prior to
the commencement of construction of each type of Subdivision Improvement. The City shall
inspect all Developer-installed Subdivision Improvements during and after construction for
compliance with the Plans, the City approvals, the City Code, the City’s Engineering Design and
Construction Standards Manual, and the City’s Landscape and Irrigation Standards. The
Developer will notify the City at such times during construction as the City requires for inspection
purposes. Such inspection is pursuant to the City’s governmental authority, and no agency or
joint venture relationship between the City and the Developer is thereby created.
10. CONTRACTORS/SUBCONTRACTORS. City Council members, City employees,
and City Planning Commission members, and corporations, partnerships, and other entities in
which such individuals have greater than a 25 percent ownership interest or in which they are an
officer or director may not act as contractors or subcontractors for the Subdivision Improvements
identified in Paragraph 8 above.
11. TIME OF PERFORMANCE. The Developer shall install all required Subdivision
Improvements by October 31, 2019, 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
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completion date.
12. MAINTENANCE DURING CONSTRUCTION. The Developer shall be responsible for
all maintenance of the Subdivision Improvements until the Subdivision Improvements are
accepted by the City in writing. The Developer is also responsible to locate all underground
utilities until the Subdivision is accepted in writing by the City. Warning signs shall be placed by
the Developer when hazards develop in streets to prevent the public from traveling on same and
to direct attention to detours. If and when streets become impassable, such streets shall be
barricaded and closed by the Developer. Hudson Boulevard must remain open to traffic at all
times unless a right-of-way obstruction permit is obtained from the City. The Developer shall be
responsible for keeping streets within and outside of the Subdivision clean and clear of dirt and
debris that may spill, track, or wash onto the street from the Developer’s operations. The
Developer shall contract for street cleaning for streets within and immediately adjacent to the
Subdivision. At a minimum, scraping and sweeping shall take place on a weekly basis and on a
daily basis during heavy tracking days.
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 all work on the
site including grading, public utility construction, and site improvements is restricted to access the
Subdivision via Hudson Boulevard North at the designated rock construction entrances per the
approved erosion control plans. No construction traffic is permitted on other adjacent local
streets. All construction parking, and loading and unloading of equipment and supplies must be
completed interior to the Subdivision and is not allowed to occur within any public right-of-way
without a right-of-way obstruction permit.
15. CONSTRUCTION SEQUENCE AND COMPLIANCE. The City will require the
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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
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 days. The parties
recognize that time is of the essence in controlling erosion.
If the Developer does not comply with the erosion control plan and schedule or
supplementary instructions received from the City, the City may take such action as it deems
appropriate to control erosion. The City will endeavor to notify the Developer in advance of any
proposed action, but failure of the City to do so will not affect the Developer's and City's rights or
obligations hereunder. If the Developer does not reimburse the City for any cost the City incurred
for such work within 10 days, the City may draw down the Security to pay any costs. No
development, utility, or street construction will be allowed and no building permits will be issued
by the City unless the Subdivision is in full compliance with the approved erosion control plan.
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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. STREET AND UTILITY IMPROVEMENTS. All storm sewers, sanitary sewers,
watermain improvements, and streets (including, but not limited to, turn lanes) 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. Installation of curb and gutter,
installation of the first lift of the bituminous streets, the grading of boulevards, the installation of
street signs, and restoration work on the site must 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.
18. 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
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Standards Manual, and the City’s Landscape and Irrigation Standards. All
landscaping materials such as trees, shrubs, grasses, or other vegetation installed
by the Developer must be warrantied and maintained for a period of two years. The
two year warranty period shall be deemed to start once all required landscaping
identified as responsibility of Developer in the approved Plans has received
acceptance by the City. The Developer agrees to have the installer of the
landscaping complete an inspection 30 days prior to the end of the two year warranty
period and provide the City with a written report identifying the condition of all
landscaping. In the event any landscaping installed by the Developer is deemed to
be in poor condition or dead, the Developer is to replace the landscaping with like
kind materials or as otherwise approved by the City. \
B. The Developer shall be responsible for maintaining regular watering, fertilizing, and
over-seeding necessary to establish final lawns and yards as identified in the
approved Plans for outlots, public rights-of-way, and any disturbed areas outside the
Subdivision boundaries according to a landscape maintenance plan approved by the
City. The Developer agrees to achieve “substantial performance” on all seeded or
sodded areas disturbed during the construction of Subdivision Improvements. For
the purpose of this Agreement “substantial performance” shall be defined for areas
seeded or sodded with a turf or lawn mix as “square foot turf areas with an average
blade height of three inches free of eroded, bare, or dead spots and free from
perennial weeds or unwanted grasses with no visible surface soil.” For areas seeded
with a native grass or flower mix “substantial performance” shall be defined as
“square foot native grass or flower areas with an average height of eight inches free
of eroded, bare, or dead spots and no visible surface soil.”
19. SIGNAGE, PAVEMENT MARKINGS, AND OTHER UTILITIES. The Developer
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agrees to install street signs, traffic and parking signs, and pavement markings along Hudson
Boulevard 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.
20. 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.
21. PARK DEDICATION. The Developer shall pay a cash contribution of $49,500 in
satisfaction of the City's park dedication requirements. The charge was calculated as
follows:$4,500 per acre at 11 acres.
22. SANITARY SEWER AND WATER UTILITY AVAILABILITY CHARGES (SAC
AND WAC). The Developer shall be responsible for the payment of all sewer availability charges
(SAC) and all water availability charges (WAC) with respect to the Subdivision Improvements
required by the City and any state or metropolitan government agency.
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The sewer availability charge (SAC) in the amount of $3,000.00 per REC shall be payable
and collected by the City at the time the building permit is issued for the building to connect to
City sewer.
The Developer has previously paid $200,000 to the City in connection with the placement
of municipal water services to the terminus located at the northeast corner of the Air Lake Property
as per the WAC Prepayment Agreement between the Developer and the City dated June 2, 2014
(the “Prepayment Agreement”).
The water availability charge (WAC) in the amount of $3,000.00 per REC shall be payable
and collected by the City at the time the building permit is issued for each building. Actual
payments for WAC fees for the Subdivision will be deducted from the fees otherwise owed
annually under the Prepayment Agreement if the WAC fees are more than the minimum amount
owed of $50,000 per year.
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.
23. RESPONSIBILITY FOR COSTS.
A. In the event that the City receives claims from labor, materialmen, or others that work
required by this Agreement has been performed and the amounts due to them have
not been paid, and the laborers, materialmen, or others are seeking payment from
the City, the Developer hereby authorizes the City to commence an Interpleader
action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District
Courts, to draw upon the Security in an amount up to 125 percent of the claim(s) and
deposit the funds in compliance with the Rule, and upon such deposit, the Developer
shall release, discharge, and dismiss the City from any further proceedings as it
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pertains to the funds deposited with the District Court, except that the Court shall
retain jurisdiction to determine attorneys' fees pursuant to this Agreement.
B. Except as otherwise specified herein, the Developer shall pay all costs incurred by
it or the City in conjunction with the development of the Subdivision, including but
not limited to legal, planning, engineering, and inspection expenses incurred in
connection with the City’s approval and acceptance of the plat and the Subdivision,
the preparation of this Agreement, the City’s review of construction plans and
documents, and all costs and expenses incurred by the City in monitoring and
inspecting development of the Subdivision. All amounts incurred and due to the City
at the time of the recording of the final plat must be fully paid by the Developer prior
to the City executing and releasing the final plat for recording.
C. The Developer shall hold the City and its officials, employees, and agents harmless
from claims made by itself and third parties for damages sustained or costs incurred
resulting from the City’s approval of the plat and the development of the Subdivision.
The Developer shall indemnify the City and its officials, employees, and agents for
all costs, damages, or expenses which the City may pay or incur in consequence of
such claims, including attorneys' fees.
D. The Developer shall reimburse the City for costs incurred in the enforcement of this
Agreement, including reasonable engineering and attorneys' fees.
E. The Developer shall pay, or cause to be paid when due, and in any event before any
penalty is attached, all special assessments referred to in this Agreement. This is a
personal obligation of the Developer and shall continue in full force and effect even
if the Developer sells one or more lots, the entire Property, or any portion of it.
F. The Developer shall pay in full all bills submitted to it by the City for obligations
incurred under this Agreement within 30 days after receipt. Bills not paid within 30
days shall be assessed a late fee per the City adopted fee schedule. Upon request,
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the City will provide copies of detailed invoices of the work performed by the City
and its consultants.
24. CITY PAYMENTS. The City shall reimburse the Developer in the amount of $70,150
for oversizing costs associated with the installation of a trunk water main, $120,760 for oversizing
costs associated with the installation of a trunk sanitary sewer main, and $18,200 for mill and
overlay of the south side of Hudson Blvd as identified in the Plans. City payments shall be made
within 30 days of the City’s final acceptance of the Improvements, but only if the Developer is not
in default with respect to any terms of this Agreement. 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 Agreement or under applicable laws,
ordinances or rules.
25. SPECIAL PROVISIONS. The following special provisions shall apply to the
Subdivision:
A. Implementation of the recommendations listed in the May 30, 2018, Engineering
memorandum and all subsequent Engineering memorandums.
B. The Developer must obtain a sign permit from the City prior to installation of any
subdivision identification signs.
C. All public trails shall be located within outlots, be at least 30 feet in width and either
be dedicated to the City in the plat or granted to the City in an easement in a form
acceptable to the City.
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 Developer shall pay the City a cash contribution of $150,000 in recognition of
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lost tax revenue that will be caused due to the fact that the intended use of the
property will be tax exempt. Said cash contribution shall be paid in full prior to the
recording of the Plat.
F. The Developer shall reimburse the City for all costs incurred by the City for the City’s
cost share in the installation of a future traffic signal at the intersection of Hudson
Boulevard and Manning Avenue (CSAH 15) and the construction of a southbound
right turn lane and a northbound left turn lane along Manning Avenue (CSAH 15) to
be designed and constructed by Washington County. The Developer shall pay the
City $250,000, which is the estimated City cost share for the future traffic signal and
turn lanes. Said payment shall be made to the City in full prior to the recording of
the Plat. If the actual City cost share exceeds this estimated amount, the Developer
shall be responsible for reimbursing the City for the remaining portion of the City cost
share within 30 days of being invoiced for such amount by the City. If the actual City
cost share is less than $250,000, the City shall return the remaining portion to the
Developer within 30 days of the City paying Washington County’s final invoice for
the project.
26. 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
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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 any covenants and restrictions, if applicable, shall be
submitted to the City prior to recording of the final plat for review and approval by
the City Attorney.
D. The Developer shall take out and maintain or cause to be taken out and maintained
until six months after the City has accepted the public Subdivision Improvements,
public liability and property damage insurance covering personal injury, including
death, and claims for property damage which may arise out of Developer's work or
the work of its subcontractors or by one directly or indirectly employed by any of
them.
Limits for bodily injury and death shall be not less than $500,000 for one person
and $1,500,000 for each occurrence; limits for property damage shall be not less
than $200,000 for each occurrence; or a combination single limit policy of $1,500,000
or more. The City shall be named as an additional insured on the policy, and the
Developer shall file with the City a certificate of insurance evidencing coverage prior
to the City signing the plat. The certificate shall provide that the City must be given
30 days’ advance written notice of the cancellation of the insurance.
E. Third parties shall have no recourse against the City under this Agreement.
F. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this
Agreement is for any reason held invalid, such decision shall not affect the validity
of the remaining portion of this Agreement.
G. The action or inaction of the City shall not constitute a waiver or amendment to the
provisions of this Agreement. To be binding, amendments or waivers shall be in
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writing, signed by the parties and approved by written resolution of the City Council.
The City's failure to promptly take legal action to enforce this Agreement shall not be
a waiver or release.
H. This Agreement shall run with the land and may be recorded against the title to the
Property at the Developer’s expense. The Developer covenants with the City, its
successors and assigns, that the Developer has fee title to the Property being final
platted and has obtained consents to this Agreement, in the form attached hereto,
from all parties who have an interest in the Property, including, but not limited to,
mortgagees; that there are no unrecorded interests in the Property being final
platted; and that the Developer will indemnify and hold the City harmless for any
breach of the foregoing covenants.
I. Each right, power, or remedy herein conferred upon the City is cumulative and in
addition to every other right, power or remedy, express or implied, now or hereafter
arising, available to City, at law or in equity, or under any other agreement, and each
and every right, power, and remedy herein set forth or otherwise so existing may be
exercised from time to time as often and in such order as may be deemed expedient
by the City and shall not be a waiver of the right to exercise at any time thereafter
any other right, power or remedy.
J. The Developer represents to the City that the Subdivision and the Subdivision
Improvements comply or will comply with all City, County, metropolitan, state, and
federal laws and regulations, including but not limited to: subdivision ordinances,
zoning ordinances, and environmental regulations. If the City determines that the
Subdivision is not in compliance, the City may, at its option, refuse to allow
construction or development work in the Subdivision until it is brought into
compliance. Upon the City’s demand, the Developer shall cease work until there is
compliance.
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27. 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.
28. 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.
29. ENFORCEMENT BY CITY; DAMAGES. The Developer acknowledges the right of
the City to enforce the terms of this Agreement against the Developer, by action for specific
performance or damages, or both, or by any other legally authorized means. In the event of a
default by the Developer as to construction or repair of any of the Subdivision Improvements or
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any other work or undertaking required by this Agreement, the City may, at its option, perform the
work and the Developer shall promptly reimburse the City for any expense incurred by the City.
This Agreement is a license for the City to act, and it shall not be necessary for the City to seek
an order from any court for permission to enter the Subdivision for such purposes. If the City
does such work, the City may, in addition to its other remedies, levy special assessments against
the land within the Subdivision to recover the costs thereof. For this purpose, the Developer, for
itself and its successors and assigns, expressly waives any and all procedural and substantive
objections to the special assessments, including, but not limited to, hearing requirements, and
any claim that the assessments exceed the benefit to the land so assessed. The Developer, for
itself and its successors and assigns, also waives any appeal rights otherwise available pursuant
to Minnesota Statutes Section 429.081.
The Developer also acknowledges that its failure to perform any or all of the Developer’s
obligations under this Agreement may result in substantial damages to the City; that in the event
of default by the Developer, the City may commence legal action to recover all damages, losses,
and expenses sustained by the City; and that such expenses may include, but are not limited to,
the reasonable fees of legal counsel employed with respect to the enforcement of this Agreement.
30. 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
20
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 years from the date of final written City acceptance of the work.
B. The required warranty period for all work relating to the Hudson Boulevard
Improvements shall be one year from the date of final written City acceptance of the
work.
C. The required warranty period for sod, trees, and landscaping shall be two years from
the date of final written City acceptance of the installation.
31. 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 $1,136,805.
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
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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 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.
32. 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. 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 $565,092 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
Engineer.
2. Construction Categories 4 and 5: The amount of $223,718 may be released
when the Hudson Boulevard Improvements, including street and drainage, turn
22
lanes, pavement markings and signage, and bituminous trail has been installed
and has 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 $57,231 may be
released when all remaining Developer’s obligations under this Agreement
have been completed including: (1) bio retention facilities; (2) iron monuments
for lot corners have been installed; (3) all financial obligations to the City
satisfied; () 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 11-13: The amount of $6,563 may be released when
landscaping Subdivision Improvements have been installed to the satisfaction
of the City including all corrective work for any identified punch list items.
B. Twenty-five percent of the original Security amount, excluding grading and landscaping
improvements shall be retained until: (1) all Subdivision Improvements have been fully
completed and accepted by the City, including all corrective work and warranty punch list
items; (2) all financial obligations to the City have been satisfied; and (3) the warranty
period has expired.
C. Twenty-five percent 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.
D. It is the intent of the parties that the City at all times have available to it Security in an
23
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.
33. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash
requirements under this Agreement which must be paid to the City prior to recording the final plat:
Park Dedication: $49,500 Special Assessments Due: $0 City Base Map Upgrading ($25.00 per REU): $25 City Engineering Administration Escrow: $10,000 Cash Contribution for Payment in Lieu of Taxes $150,000 City Cost Share of Hudson Boulevard and $250,000 Manning Avenue (CSAH 15) Traffic Signal/Turn Lanes TOTAL CASH REQUIREMENTS: $459,525
34. 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: 11530 Hudson Boulevard North, Lake Elmo, MN 55042. 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, 3880 Laverne Avenue N, Suite 101, Lake Elmo, Minnesota 55042.
35. EVIDENCE OF TITLE. The Developer shall furnish the City with evidence of fee
ownership of the property being platted by way of an a title insurance policy dated not earlier than
30 days prior to the execution of the plat.
36. 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.
37. SEVERABILITY. In the event that any provision of this Agreement shall be held invalid,
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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.
38. NON-WAIVER. Each right, power, or remedy conferred upon the City by this Agreement
is cumulative and in addition to every other right, power, or remedy, express or implied, now or
hereafter arising, or available to the City at law or in equity, or under any other agreement. Each
and every right, power, and remedy herein set forth or otherwise so existing may be exercised
from time to time as often and in such order as may be deemed expedient by the City and shall
not be a waiver of the right to exercise at any time thereafter any other right, power, or remedy.
If either party waives in writing any default or nonperformance by the other party, such waiver
shall be deemed to apply only to such event and shall not waive any other prior or subsequent
default.
39. 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.
CITY OF LAKE ELMO By: ____________ __________________ Mike Pearson Its: Mayor By: __________________ _____________ Julie Johnson Its: City Clerk
STATE OF MINNESOTA )
) ss. COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this ___ day of ________________, 20___, by Mike Pearson and Julie Johnson, the Mayor and City Clerk, respectively, of the City of Lake Elmo, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council.
25
NOTARY PUBLIC
26
EN PROPERTIES, LLC
By: ___________________________________
Its: ___________________________________
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ___, day of _________________, 20___, by _______________________, the _______________ of EN Properties, LLC, a Minnesota limited liability company on behalf of the company.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
27
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 , 2 .
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of _____________, 20___.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
28
MORTGAGEE 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 , 2 .
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of ________________, 20___, by _______________________________________________________________.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
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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 ________________, 20___.
STATE OF MINNESOTA )
) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of _______________, 20___, 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 AGREEMENT Legal Description of Property Being Final Platted That part of the South Half of the Southeast Quarter of Section 36, Township 29 North,
Range 21 West, Washington County, Minnesota, lying easterly of the West 33.00 feet (2
rods) thereof, EXCEPT that part designated as Parcel 44 on Minnesota Department of Transportation Right of Way Plat No. 82-35, State Project No. 8282 (94-392), recorded as Document No. 424557 in the Office of the County Recorder, Washington County, Minnesota.
B-1
EXHIBIT B TO DEVELOPMENT AGREEMENT List of Plan Documents The following documents prepared by Larson Engineering constitute the Plans:
THOSE DOCUMENTS BY AS FOLLOWS: SHEET TITLE REVISION DATE
T Title
C1 Demolition Plan
C2 Paving and Dimension Plan
C3 Grading and Erosion Control Plan
C3.1 Landscape Plan
C4 Utility Plan
C5 Details
C6 Details
C-1
EXHIBIT C TO DEVELOPMENT AGREEMENT Subdivision Improvements Cost/Security Amount Estimate CONSTRUCTION CATEGORY COST 125 percent
1 Grading $NA $NA
2 Sanitary Sewer $285,105 $356,381
3 Watermain $317,660 $397,075
4 Storm Sewer (includes pond structures
and outfall pipes)
$48,958 $61,198
5 Streets and Sidewalks $189,675 $237,094
6 Trails $13,183 $16,479
7 Surface Water Facilities (ponds,
infiltration basins, other BMPs)
$NA $NA
8 Street Lighting $NA $NA
9 Street and Traffic Signs
$2,863 $3,579
10 Private Utilities $NA $NA
11 Landscaping Improvements $7,000 $8,750
12 Tree Preservation and Restoration $NA $NA
13 Wetland Mitigation and Buffers $NA $NA
14 Monuments $NA $NA
15 Erosion and Sediment Control $37,000 $46,250 16 Miscellaneous Facilities $NA $NA
17 Developer’s Record Drawings $8,000 $10,000
TOTALS $909,444 $1,136,805
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, 3880 Laverne Ave. N., Suite 101, 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