HomeMy WebLinkAbout#10 - Royal Golf 2nd Addn Development Agreement STAFF REPORT
DATE: July 3, 2018
REGULAR
ITEM #: 10
MOTION
TO: City Council
FROM: Emily Becker, Planning Director
AGENDA ITEM: Royal Golf Club at Lake Elmo 2nd Addition Development Agreement
REVIEWED BY: Jack Griffin, City Engineer
Sarah Sonsalla, City Attorney
Kristina Handt, City Administrator
BACKGROUND:
On June 19, 2018, the City Council adopted Resolution 2018-062 approving the Final Plat of Royal
Golf Club at Lake Elmo 2nd Addition. An executed Development 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 2018-064 approving the Developer
Agreement for Royal Golf Club at Lake Elmo 2nd Addition.
REVIEW/ANALYSIS:
A condition of approval of the Royal Golf Club at Lake Elmo 2nd Addition Final Plat is that the
developer enter into a Developer’s Agreement prior to the execution of the plat by City officials.
Staff has drafted this Developer Agreement which is attached for consideration by the City
Council. The key aspects of the agreement include the following components:
• The Developer provide executed warranty deeds to the City for recording for B, F, I, and
K.
• Legal documents regarding homeowner association documents, covenants, and restrictions
are to be submitted, reviewed, and approved by the City Attorney.
• That all public improvements be completed by October 31, 2018, with the exception of the
final wear course of asphalt on streets.
• The parkland dedication is to be dedicated incrementally with each phase. The total
assessed value of the entire subdivision was $8,000,000.00. The zoning district in which
the development is located requires 10% of the land of the entire subdivision to be
dedicated towards parkland, or a fee in lieu of land. As approved by the City, the developer
has proposed trails instead of a public park. The developer has agreed to not receive credit
City Council – Staff Report Regular Item #10
Meeting date: 7/3/2018
Page 2
for costs of construction of the trails in exchange for an increased amount of impervious
surface for residential lots, as approved with the Final Plat but will receive credit for a 30
foot corridor for trails, less wetland buffer encroachments. The parkland dedication for the
first phase was calculated as follows:
Factors Considered Running Totals
$800,000.00 for required parkland
dedication
Less $188,543.00 for appraised value of
land underneath trail (8,085 lineal feet of
trail with a 30-foot wide corridor, less
5,010 wetland buffer encroachment)
Total: $611,457.00
Divided by 291 lots (number of lots for
entire development)
Total: $2,101.00
Multiplied by 64 lots (number of lots for
1st Addition)
Total Owed for 1st Addition: $134,464
• That the developer pay the City an additional park dedication fee of $106,557 for
required trees not planted within the 2nd Addition as per Section 19 (C) of this
Agreement. This fee was calculated as follows: [($500 X 969 2.5-caliper inch trees
reduced within the entire preliminary plat area) / 291 Single Family Lots within all
phases of the Subdivision X 64 Single Family Lots within the 1st Addition].
• That the developer provide a letter of credit in the amount of $3,232,172.00 related to the
cost of the proposed improvements.
• The Developer shall pay the City a cash donation of $1,000,000 with the Royal Golf Club
at Lake Elmo 3rd Addition final plat, or with that phase of the development when the
Tartan Park ballfields are no longer able to be used by the City.
• That the developer provide a cash deposit of $677,266 for SAC and WAC charges,
engineering administration, required park dedication fees and park dedication fees to be
paid in lieu of planting agreed-upon number of trees, base map updating costs, one year of
street light operating costs.
• A separate paragraph has been added to require the developer to pay taxes on City-
dedicated outlots. This is a new paragraph that Staff recommends be added to development
agreement templates in the future.
• A credit from a previously submitted letter of credit from Royal Golf’s Grading Agreement
($780,600) was applied so as not to duplicate already in-place securities for grading, tree
preservation, and wetland mitigation and buffers.
The construction plans approval for the project are expected, but had not been given prior to the
preparation of this report. If approved, the final page of the Development Agreement will be
City Council – Staff Report Regular Item #10
Meeting date: 7/3/2018
Page 2
updated to include the final construction plan dates. The Development Agreement will not be
executed until the final construction plans are approved, all fees and securities, and insurance
certificates are received among other requirements. Only after recording of the final plat and the
completion of a pre-construction meeting with the City can the construction commence.
FISCAL IMPACT:
The future financial impacts include maintenance of streets, trails, sanitary sewer mains,
watermains, lift stations, and other public infrastructure, maintenance of storm water ponding areas
(after warranty period), monthly lease payments for street lights, and other public financial
responsibilities typically associated with a new development. The City will collect building permit
fees, Sewer Accessibility Charges and Water Accessibility Charges and property taxes for the 64
lot single family residential subdivision.
OPTIONS:
The City Council has the following options:
1) Adopt Resolution 2018-064 approving the Development Agreement for Royal Golf Club
at Lake Elmo 2nd Addition; or
2) Direct Staff to amend the draft Development Agreement to bring back to a future City
Council meeting.
RECOMMENDATION:
Staff recommends the City Council adopt Resolution 2018-064 approving the Development
Agreement for Royal Golf Club at Lake Elmo 2nd Addition.
“Move to adopt Resolution 2018-064 approving the development agreement for Royal Golf
Club at Lake Elmo 2nd Addition Final Plat”
ATTACHMENTS:
• Resolution 2018-064
• Royal Golf Club at Lake Elmo 2nd Addition Development Agreement
1
Resolution 2018-064
CITY OF LAKE ELMO
WASHINGTON COUNTY
STATE OF MINNESOTA
RESOLUTION NO. 2018-064
A RESOLUTION APPROVING A DEVELOPMENT AGREEMENT FOR THE ROYAL GOLF
CLUB AT LAKE ELMO 2ND ADDITION PLANNED UNIT DEVELOPMENT
WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing
under the laws of the State of Minnesota; and
WHEREAS, H.C. Golf Land, LLC., 11074 Radisson Road NE, Blaine, MN 55449
(“Developer”) has previously submitted an application to the City of Lake Elmo (“City”) for
Final Plat and Planned Unit Development (PUD) Plans to be called The Royal Golf Club at Lake
Elmo 2nd Addition, a copy of which is on file in the City Planning Department; and
WHEREAS, the Lake Elmo City Council approved The Royal Golf Club at Lake Elmo
PUD Concept Plan on September 9, 2016; and
WHEREAS, the Lake Elmo City Council adopted Resolution 2017-47 approving The
Royal Golf Club at Lake Elmo Preliminary Plat and PUD Plans on June 6, 2017; and
WHEREAS, the Lake Elmo City Council adopted Resolution 2018-062 approving The
Royal Golf Club at Lake Elmo 2nd Addition Final Plat and PUD Plans on June 19, 2018; and
WHEREAS, a condition of approval of said Resolution 2018-062 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
June 19, 2018 meeting;
NOW, THEREFORE, BE IT RESOLVED THAT the City Council does hereby
approve the Development Agreement for The Royal Golf Club at Lake Elmo 2nd Addition and
authorizes the mayor and city Clerk to execute the document.
Passed and duly adopted this 3rd day of July, 2018 by the City Council of the City of Lake Elmo,
Minnesota.
___________________________________
Mike Pearson, Mayor
ATTEST:
2
Resolution 2018-064
____________________________________
Julie Johnson, City Clerk
1
527400v2 SJS LA515-47
(reserved for recording information)
DEVELOPMENT AGREEMENT
(Public sewer and water)
Royal Golf Club at Lake Elmo 2nd Addition
THIS DEVELOPMENT AGREEMENT is dated ______________, 2018, by and between the
CITY OF LAKE ELMO, a Minnesota municipal corporation (the “City”) and Royal Development,
Inc., a Minnesota corporation (the “Developer”).
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a
plat for The Royal Golf Club at Lake Elmo 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
2
527400v2 SJS LA515-47
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 caused H.C. Golf Land, LLC to provide an executed deed conveying
fee title of Outlots B, F, I, and K to the City and provided copies of the executed deeds
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 or the easements have been dedicated to the City
on the plat;
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 Security (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
City Engineering Administration 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 escrowed money with the City in amount sufficient to pay the
estimated property taxes attributable to Outlots B, F, I, and K for 2019 if the City does
3
527400v2 SJS LA515-47
not take ownership of the outlots before July 1, 2018.
J. the Developer has fulfilled any park dedication requirements as specified under this
Agreement;
K. 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;
L. the Developer has provided the City with a certificate of insurance required by this
Agreement;
M. 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;
N. the final plat has been recorded with Washington County;
O. all homeowners’ association declarations, covenants, and restrictions have been
submitted, reviewed and approved by the City Attorney;
P. a title insurance policy has been issued in the amount of $100,000 in favor of the City
insuring Outlots B, F, I, and K and the City’s interests as they appear on the plat; and
Q. 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
4
527400v2 SJS LA515-47
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, 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, including, but not limited to, any 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. 2018-062, and City Council Resolution No. 2018-
70 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
5
527400v2 SJS LA515-47
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.);
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.
6
527400v2 SJS LA515-47
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 36 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 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
7
527400v2 SJS LA515-47
agency or joint venture relationship between the City and the Developer is thereby created.
10. CONTRACTORS/SUBCONTRACTORS. City Council members, City employees,
and City Planning Commission members, and corporations, partnerships, and other entities in
which such individuals have greater than a 25 percent ownership interest or in which they are
an officer or director may not act as contractors or subcontractors for the Subdivision
Improvements identified in Paragraph 8 above.
11. TIME OF PERFORMANCE. The Developer shall install all required Subdivision
Improvements by October 31, 2018, with the exception of the final wear course of asphalt on
streets and sidewalks. 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 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. 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
8
527400v2 SJS LA515-47
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 it is requesting to be plowed by the City, with
such request received prior to October 1st of each winter season that plowing is requested; 2)
there must be residences along the street; 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 of
the street; 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 “HI-
VIS” fiberglass stakes; 6) a site review must be scheduled by the Developer and conducted with
the City’s Public Works Department with the Developer in attendance to review the streets that
are being requested to be plowed prior to the commitment of plowing by the City; 7) the
Developer must agree not to hold the City responsible for any damage caused by snow plowing
operations to the streets, curb and gutter, manholes, catch basins or other infrastructure; and 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 10th
9
527400v2 SJS LA515-47
Street North. No construction traffic is permitted on other adjacent local streets.
15. CONSTRUCTION SEQUENCE AND COMPLIANCE. The City will require the
Developer to construct the 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
10
527400v2 SJS LA515-47
incurred for such work within 10 days, the City may draw down the Security to pay any costs.
No development, utility or street construction will be allowed and no building permits will be
issued by the City unless the Subdivision is in full compliance with the approved erosion control
plan.
If building permits are issued prior to the acceptance of public Subdivision
Improvements, the Developer assumes all responsibility for erosion control compliance
throughout the Subdivision and the City may take such action as allowed by this Agreement
against the Developer for any noncompliant issue as stated above. Erosion control plans for
individual lots will be required in accordance with the City’s building permit requirements, or as
required by the City or City Engineer.
17. SITE GRADING. In order to construct the Subdivision Improvements and otherwise
prepare the Property for development, it will be necessary for the Developer to grade the
Subdivision. All grading must be done in compliance with this Agreement and the approved
grading plans. Within 30 days after completion of the grading, the Developer shall provide the
City with an “as built” grading plan and a certification by a registered land surveyor or engineer
as required in the City’s Engineering Design and Construction Standards Manual.
18. STREET AND UTILITY IMPROVEMENTS. All 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
11
527400v2 SJS LA515-47
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 by the Developer must be warrantied and maintained for a
period of two years, with the exception of trees planted on lots that have villa or
single family homes, which are not required to be warrantied. The two year
warranty period for landscaping materials shall be deemed to start once all
required landscaping identified as responsibility of Developer in the approved
Plans for such phase 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 that any landscaping
installed by the Developer is deemed through this inspection 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
12
527400v2 SJS LA515-47
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 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.”
C. Notwithstanding anything herein to the contrary, the City has agreed to reduce the
number of required trees the Developer is required to plant within the Subdivision
from 3800 to 2912 as such number is reflected in the revised landscape plans on
file with the City. However, in addition to planting the number of trees required by
this paragraph, the Developer agrees that it will require that at least two trees be
planted on lots that have villa homes and at least four trees be planted on lots that
have single family homes. These trees are not to be counted towards the number
of trees that are required by this paragraph to be planted by the Developer. All
trees planted on villa or single family home lots must be planted before the building
permit escrow will be released by the City. The Developer may further reduce the
number of trees that it is required to plant within the Subdivision by: (i)
implementing woodland management or pollinator friendly native seeding practices
within the Subdivision, in a manner approved by the City’s Landscape Architect,
provided that the number of trees that may be removed from the Developer’s
13
527400v2 SJS LA515-47
plantings will be agreed upon by the Developer and the City at the time such
practices are approved; or (ii) paying to the City a per-tree parkland dedication fee
of $500.00 per 2.5 caliper inch tree that the Developer elects not to plant within the
Subdivision.
D. In consideration for the reduction in the number of trees to be planted by Developer
in accordance with paragraph 19 (C) above, the Developer will pay a proportionate
share of the total per tree parkland dedication fee for each phase of the Subdivison
based upon the number of Single Family Lots within each phase. For the initial
phase of the Subdivision, the Developer has paid in full the required parkland
dedication fee, receipt of which is acknowledged by the City. For the 2nd Addition,
the Developer will pay the City $106,557.00 in parkland dedication fees [($500 X
969 2.5 caliper inch trees reduced within the entire plat area) / 291 Single Family
Lots within all phases of the Subdivision X 64 Single Family Lots within the 2nd
Addition].
20. SIGNAGE, STREET LIGHTING AND OTHER UTILITIES. The Developer agrees
to install street signs, traffic and parking signs, and pavement markings within the Subdivision
all in accordance with the approved Plans and the City Engineering Design Standards Manual.
Street and traffic sign details shall be submitted by the Developer to the City for approval prior to
installation. In addition, the Developer shall be responsible for the cost and all coordination
work to extend private utilities along with street lighting within the Subdivision all in accordance
with the approved plans and right-of-way permits.
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
14
527400v2 SJS LA515-47
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 dedicate or convey 8.8 acres of land and
pay a cash contribution of $611,457.00 in satisfaction of the City's park dedication requirements
for the entire Subdivision, all phases, to be dedicated incrementally with each phase of the
development. The park dedication for the entire Subdivision was calculated as follows:
$800,000.00 (10 percent of $8,000,000 (the total appraised value of the entire Subdivision), less
$188,543 for the total appraised value of the land being conveyed to the City for trails (8,085
lineal feet of trail with a 30 foot wide corridor, less 5,010 square feet of buffer encroachment).
In the second phase, the Developer shall cause H.C. Golf Land, LLC to deed Outlot B
(4.3 gross acres of land) to the City upon the recording of the final plat and shall pay a cash
contribution of $134,464.00 to satisfy the City’s park dedication requirements for the second
phase. The second phase park dedication was calculated as follows: 64 lots at $2,101.00 per lot
($2,749.00 per lot, less $648.00 for the appraised value of land for the trails being conveyed to
the City per lot). The parties agree that after the transfer of Outlot B pursuant to the terms of
this paragraph, Developer has transferred a total of 5.33 acres to the City leaving 3.47 acres yet
to be transferred.
23. SANITARY SEWER AND WATER UTILITY AVAILABILITY CHARGES (SAC AND
WAC). The Developer shall be responsible for the payment of all sewer availability charges
15
527400v2 SJS LA515-47
(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 $192,000.00.
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 $192,000.00.
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.
24. 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 $30,000 and consists of five decorative lights at $6,000 each. The
Developer shall also pay the City $129/light ($645.00) to reimburse the City for the first year
operating costs for the street lights.
25. 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.
26. BUILDING PERMITS/CERTIFICATES OF OCCUPANCY.
16
527400v2 SJS LA515-47
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, trails and one lift of asphalt
has been installed and tested for all public streets; boulevard grading has been
completed within the entire right-of-way (without hold down grading for the future
sidewalk or any other improvements); permanent or temporary 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 26 (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 all conditions identified in paragraph 26 (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
17
527400v2 SJS LA515-47
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, the Developer, the Developer’s
contractors, subcontractors, materialmen, employees, agents, or any third parties.
F. If building permits are issued prior to the construction of front yard sidewalks, the
Developer assumes all responsibility for the coordination, liability and costs to; 1)
ensure that the sidewalks are constructed prior to any driveways for any lots with
sidewalks; 2) that the sidewalks are constructed continuously from end of street to
end of street without exceptions or gaps in the sidewalk; 3) that there is a stop
work order on all building construction for impacted lots during the sidewalk
construction and curing periods to prohibit traffic prior to City approval; and 4) that
all boulevard grading and restoration re-work is completed immediately following
the sidewalk construction.
G. 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.
27. 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
18
527400v2 SJS LA515-47
Interpleader action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the
District Courts, to draw upon the Security in an amount up to 125 percent of the
claim(s) and deposit the funds in compliance with the Rule, and upon such deposit,
the Developer shall release, discharge, and dismiss the City from any further
proceedings as it pertains to the funds deposited with the District Court, except that
the Court shall retain jurisdiction to determine attorneys' fees pursuant to this
Agreement.
B. Except as otherwise specified herein, the Developer shall pay all costs incurred by
it or the City in conjunction with the development of the Subdivision, including but
not limited to legal, planning, engineering, and inspection expenses incurred in
connection with the City’s approval and acceptance of the plat and the Subdivision,
the preparation of this Agreement, the City’s review of construction plans and
documents, and all costs and expenses incurred by the City in monitoring and
inspecting development of the Subdivision. All amounts incurred and due to the
City at the time of the recording of the final plat must be fully paid by the Developer
prior to the City executing and releasing the final plat for recording.
C. The Developer shall hold the City and its officials, employees, and agents harmless
from claims made by itself and third parties for damages sustained or costs
incurred resulting from the City’s approval of the plat and the development of the
Subdivision. The Developer shall indemnify the City and its officials, employees,
and agents for 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
19
527400v2 SJS LA515-47
is a personal obligation of the Developer and shall continue in full force and effect
even if the Developer sells one or more lots, the entire Property, or any portion of
it.
F. The Developer shall pay in full all bills submitted to it by the City for obligations
incurred under this Agreement within 30 days after receipt. Bills not paid within 30
days shall be assessed a late fee per the City adopted fee schedule. Upon request,
the City will provide copies of detailed invoices of the work performed by the City
and its consultants.
28. SPECIAL PROVISIONS. The following special provisions shall apply to the
Subdivision:
A. Implementation of the recommendations listed in the May 30, 2018, Engineering
memorandum.
B. Upon the recording of the final plat, the Developer shall cause H.C. Golf Land, LLC
to convey Outlots B, F, I, and K to the City by warranty deed, free and clear of any
and all encumbrances, unless otherwise agreed to by the City.
C. The Developer must obtain a sign permit from the City Building Official prior to
installation of any subdivision identification signs.
D. All public trails shall be located within outlots, at least 30 feet in width and either be
deeded to the City, dedicated to the City in the plat or an easement in a form
acceptable to the City be provided. The title policy to be provided to the City shall
insure the City’s interests in the property.
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 deeded to the City or dedicated as public park
and open space on the final plat.
20
527400v2 SJS LA515-47
F. The Developer shall pay the City a cash donation of $1,000,000.00 upon the Royal
Golf Club at Lake Elmo 3rd Addition final plat being approved by the City, or upon
approval by the City of that phase of the development where the Tartan Park
ballfields are no longer able to be used by the City, whichever happens first.
G. A temporary access road providing access to the Outlot N, Royal Golf Club at Lake
Elmo lift station and sanitary manhole structures along Outlot R must be provided
by the Developer. The Developer also hereby agrees to pave such road within one
year from the date that the lift station is operational.
H. The Developer shall pay the City a park dedication fee of $106,557 for required
trees not planted within the 2nd Addition as per paragraph 19 (C) of this Agreement.
This fee was calculated as follows: [($500 X 969 2.5-caliper inch trees reduced
within the entire preliminary plat area) / 291 Single Family Lots within all phases of
the Subdivision X 64 Single Family Lots within the 2nd Addition].
I. That open space within the shorelands of the Subdivision (specifically Outlots
C, D, F, and the rest of Outlot L) be protected with a conservation easement,
deed restriction, covenant, or other instrument. Such document(s) must be
provided for review and approval by the City Attorney and be executed prior to
final plat approval.
29. 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
21
527400v2 SJS LA515-47
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.
C. Homeowners’ association declarations, covenants, and restrictions and other
documents related to the homeowners’ association 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
22
527400v2 SJS LA515-47
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.
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
23
527400v2 SJS LA515-47
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.
30. EVENTS OF DEFAULT. The following shall be "Events of Default" under this
Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement,
any one or more of the following events:
A. Subject to unavoidable delays, failure by 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.
31. REMEDIES ON DEFAULT. Whenever any Event of Default occurs, the City, subject
to any rights of third parties agreed to by the City pursuant to this Agreement, or otherwise by
written, executed instrument of the City, may take any one or more of the following:
A. The City may suspend its performance under the Agreement until it receives
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.
24
527400v2 SJS LA515-47
32. 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 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.
33. 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
25
527400v2 SJS LA515-47
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 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 street construction, including
concrete curb and gutter, sidewalks and trails, materials and equipment shall be
subject to one year from the date of final written City acceptance of the work.
C. The required warranty period for sod, trees, and landscaping is two years from the
date of final written City acceptance of the installation.
34. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the
terms of this Agreement, payment of special assessments, payment of the costs of all public
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 $3,232,172.
26
527400v2 SJS LA515-47
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, 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.
35. REDUCTION OF SECURITY. Upon written request by the Developer and upon receipt
of proof satisfactory to the City Engineer that work has been completed 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 $685,340 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
27
527400v2 SJS LA515-47
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 $1,320,002 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 $114,567 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, if required; (6) all financial
obligations to the City have been satisfied; (7) the required "record" plans in
the form of the City standards have been received and approved by the City;
and (8) the public Subdivision Improvements are accepted by the City
Engineer and the City Council.
4. Construction Categories 11, 12 and 13: The amount of $304,219 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.
28
527400v2 SJS LA515-47
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. 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 50 percent
of the initial Security amount. This one-time Security reduction does not apply to
Categories 4-5 if boulevard sidewalks or trails have not been installed.
E. It is the intent of the parties that the City at all times have available to it Security
in an amount adequate to ensure completion of all elements of the Subdivision
Improvements and other obligations of the Developer under this Agreement,
including fees or costs due to the City by the Developer. To that end and
notwithstanding anything herein to the contrary, all requests by the Developer for
a reduction or release of the Security shall be evaluated by the City in light of that
principle.
36. 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): $192,000
Water Availability Charge (WAC): $192,000
Park Dedication per Paragraph 22: $134,464
29
527400v2 SJS LA515-47
Park Dedication per Paragraph19 (D): $106,557
Street Light Operating Fee: $645
City Base Map Upgrading ($25.00 per REU): $1600
City Engineering Administration Escrow: $50,000
TOTAL CASH REQUIREMENTS: $677,266
37. 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: c/o Zappia & LeVahn, Ltd., Attn: Joel LeVahn, 941
Hillwind Rd NE, Suite 301, Fridley, MN 55432. 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.,
Lake Elmo, Minnesota 55042.
38. EVIDENCE OF TITLE. The Developer shall furnish the City with evidence of fee
ownership of the property being platted by way of a title insurance policy dated not earlier than
30 days prior to the execution of the plat.
39. 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.
40. 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.
41. 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
30
527400v2 SJS LA515-47
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.
42. 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.
31
527400v2 SJS LA515-47
CITY OF LAKE ELMO
By: ____________ __________________ Mike Pearson Its: Mayor By: __________________ _____________ Julie Johnson Its: City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this ___ day of ________________,
20___, by Mike Pearson and Julie Johnson, the Mayor and City Clerk, respectively, of the City
of Lake Elmo, a Minnesota municipal corporation, on behalf of the corporation and pursuant to
the authority granted by its City Council.
NOTARY PUBLIC
32
527400v2 SJS LA515-47
ROYAL DEVELOPMENT, INC.
By: ___________________________________
Its: ___________________________________
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ___, day of _________________,
2018, by Joel T. LeVahn, the Chief Financial Officer of Royal Development, Inc., a Minnesota
corporation, on behalf of the corporation.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3880 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
33
527400v2 SJS LA515-47
MORTGAGEE CONSENT TO
DEVELOPMENT AGREEMENT
Northeast Bank, 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 3880 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
A-1
527400v2 SJS LA515-47
EXHIBIT A TO
DEVELOPMENT AGREEMENT
Legal Description of Property Being Final Platted
Outlots O, P, R, and S, The Royal Golf Club at Lake Elmo, Washington County, Minnesota,
according to the recorded plat thereof.
B-1
527400v2 SJS LA515-47
EXHIBIT B TO
DEVELOPMENT AGREEMENT
List of Plan Documents
The following documents prepared by Carlson McCain and Pioneer Engineering, collectively
constitute the Plans:
THOSE DOCUMENTS BY AS FOLLOWS:
SHEET TITLE REVISION
DATE
1 of 21 of The Royal Golf Club
at Lake Elmo Phase 1 Grading,
Development & Erosion
Control Plans
Cover
2 of 21 of The Royal Golf Club
at Lake Elmo Phase 1 Grading,
Development & Erosion
Control Plans
Grading Index
3-15 of 21 of The Royal Golf
Club at Lake Elmo Phase 1
Grading, Development &
Erosion Control Plans
Grading, Drainage & Erosion
Control Plans
16-18 of 21 of The Royal Golf
Club at Lake Elmo Phase 1
Grading, Development &
Erosion Control Plans
Details
19-21 of 21 of The Royal Golf
Club at Lake Elmo Phase 1
Grading, Development &
Erosion Control Plans
Retaining Wall Profiles
1 of 27 of The Royal Golf Club
at Lake Elmo 2nd Addition
Sanitary Sewer, Water Main,
Storm Sewer, and Street
Construction Plans
Cover
2-3 of 27 of The Royal Golf
Club at Lake Elmo 2nd Addition
Sanitary Sewer, Water Main,
Storm Sewer, and Street
Construction Plans
Index
4 of 27 of The Royal Golf Club
at Lake Elmo 2nd Addition
Sanitary Sewer, Water Main,
Storm Sewer, and Street
Construction Plans
Sanitary Sewer & Watermain –
Sheet Index
B-2
527400v2 SJS LA515-47
5-9 of 27 of The Royal Golf
Club at Lake Elmo 2nd Addition
Sanitary Sewer, Water Main,
Storm Sewer, and Street
Construction Plans
Sanitary Sewer & Watermain
10 of 27 of The Royal Golf Club
at Lake Elmo 2nd Addition
Sanitary Sewer, Water Main,
Storm Sewer, and Street
Construction Plans
Storm Sewer – Sheet Index
11-15 of 27 of The Royal Golf
Club at Lake Elmo 2nd Addition
Sanitary Sewer, Water Main,
Storm Sewer, and Street
Construction Plans
Storm Sewer
16-20 of 27 of The Royal Golf
Club at Lake Elmo 2nd Addition
Sanitary Sewer, Water Main,
Storm Sewer, and Street
Construction Plans
Street Construction
21-22 of 27 of The Royal Golf
Club at Lake Elmo 2nd Addition
Sanitary Sewer, Water Main,
Storm Sewer, and Street
Construction Plans
Signing, Striping & Lighting
Plan
23 of 27 of The Royal Golf Club
at Lake Elmo 2nd Addition
Sanitary Sewer, Water Main,
Storm Sewer, and Street
Construction Plans
Trail Construction
24-27 of 27 of The Royal Golf
Club at Lake Elmo 2nd Addition
Sanitary Sewer, Water Main,
Storm Sewer, and Street
Construction Plans
Details
L1 – L5 of 8 of the Landscape
Plan
Landscape Plan
L6 of 8 of the Landscape Plan Groundcover Plan
L7 of 8 of the Landscape Plan Irrigation Connection Points
L8 of 8 of the Landscape Plan City Planting Details
C-1
527400v2 SJS LA515-47
EXHIBIT C TO
DEVELOPMENT AGREEMENT
Subdivision Improvements Cost/Security Amount Estimate
CONSTRUCTION CATEGORY COST 125percent
1 Grading
$0 $0
2 Sanitary Sewer
$216,439 $270,549
3 Watermain
$514,590 $643,238
4 Storm Sewer (includes pond structures
and outfall pipes)
$409,748 $512,185
5 Streets and Sidewalks
$998,255 $1,247,818
6 Trails
$72,670 $90,838
7 Surface Water Facilities (ponds,
infiltration basins, other BMPs)
$0 $0
8 Street Lighting
$30,000 $37,500
9 Street and Traffic Signs
$4,235 $5,294
10 Private Utilities (electricity, natural gas,
telephone, and cable)
11 Landscaping Improvements
$324,500 $405,625
12 Tree Preservation and Restoration
$0 $0
13 Wetland Mitigation and Buffers
$0 $0
14 Monuments
$7,300 $9,125
15 Erosion and Sedimentation Control
$8,000 $10,000
16 Miscellaneous Facilities
$0 $0
17 Developer’s Record Drawings
$0 $0
TOTALS
$2,585,737
$3,232,172
527400v4 SJS LA515-47
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___.
d) Be for an amount not to exceed the principal amount of the credit herein.
e) Be accompanied by the original copy of this letter.
f) Be accompanied by a copy of a Notice of Default, which relates to a default under the Development
Agreement dated _____________, 2018 between the City of Lake Elmo and Royal Development, Inc. for
the project known as The Royal Golf Club at Lake Elmo 2nd Addition.
This Letter of Credit shall be automatically extended for successive one-year terms unless, at least forty-
five (45) days prior to the next annual renewal date, 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. 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.
If you have questions please contact Larry Crane at 763-792-3216.
527400v4 SJS LA515-47
BY:
Its