HomeMy WebLinkAbout#23 - Springs of Lake Elmo Development Agreement STAFF REPORT
DATE: 12/17/2019
REGULAR
MOTION
TO: City Council
FROM: Ken Roberts, Planning Director
AGENDA ITEM: Springs of Lake Elmo - Development Agreement
REVIEWED BY: Jack Griffin, City Engineer
Sarah Sonsalla, City Attorney
BACKGROUND:
On October 1, 2019, the City Council adopted Resolution 2019-072 approving the Final Plat and Final PUD
plans for the Springs of Lake Elmo. An executed developer’s agreement is a condition of final plat approval
and is required before the developer records the final plat with Washington County.
ISSUE BEFORE CITY COUNCIL:
The City Council is being asked to adopt Resolution 2019-096 approving the developer agreement for the
Springs of Lake Elmo.
REVIEW/ANALYSIS:
A condition of approval of the Springs of Lake Elmo Final Plat is that the developer enter into a Developer’s
Agreement with the City before 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 December 1, 2022 due to phasing within the
development.
• That the developer provide a letter of credit in the amount of $3,325,185 related to the cost of the
proposed project improvements.
• That the developer provide the City with a cash deposit of $504,216 for sewer and water availability
charges, park dedication and engineering administration escrow.
City staff is in the process of reviewing and approving the final construction plans for the project, subject
to changes and corrections. 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, the applicant may start site
grading and construction.
FISCAL IMPACT:
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 for each building as they develop.
OPTIONS:
The City Council is being asked to consider the approval of the developer’s agreement and has the following
options:
1) Adopt Resolution 2019-096 approving the developer agreement for Springs of Lake Elmo; 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 2019-096 approving the developer’s agreement for
the Springs of Lake Elmo with the following motion:
“Move to adopt Resolution 2019-096 approving the developer’s agreement for the Springs of
Lake Elmo”
ATTACHMENTS:
• Resolution 2019-096
• Springs of Lake Elmo Development Agreement
CITY OF LAKE ELMO
WASHINGTON COUNTY
STATE OF MINNESOTA
RESOLUTION NO. 2019-096
A RESOLUTION APPROVING A DEVELOPER’S AGREEMENT FOR THE SPRINGS OF
LAKE ELMO FINAL PLAT
WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing under the
laws of the State of Minnesota; and
WHEREAS, Continental 483 Fund LLC (Continental), Menominee Falls, Wisconsin
(“applicant”) has previously submitted an application to the City of Lake Elmo (“City”) for a Final Plat
for the Springs of Lake Elmo; and
WHEREAS, the Lake Elmo City Council approved the 300-unit Springs of Lake Elmo
Preliminary Plat and Preliminary PUD on June 18, 2019; and
WHEREAS, Continental is now proposing to final plat the 300-unit Springs of Lake Elmo
residential development; and
WHEREAS, the Lake Elmo City Council adopted Resolution 2019- 072 on October 1, 2019
approving the Final Plat for the Springs of Lake Elmo Addition; and
WHEREAS, a condition of approval of said Resolution 2019-072 , establishes that prior to
execution of the Final Plat by City officials, the Applicant shall enter into a Developer’s Agreement with
the City; and
WHEREAS, the Applicant and the City have agreed to enter into such a contract and a copy of
the Developer’s Agreement was submitted to the City Council for consideration at its December 17, 2019
meeting;
NOW, THEREFORE, BE IT RESOLVED THAT the City Council does hereby approve the
Developer’s Agreement for Springs of Lake Elmo Addition and authorizes the Mayor and City Clerk to
execute the document.
Passed and duly adopted this 17th day of December, 2019 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)
SPRINGS AT LAKE ELMO
THIS DEVELOPMENT AGREEMENT is dated ______________, 2019, by and between the
CITY OF LAKE ELMO, a Minnesota municipal corporation (the “City”) and CONTINENTAL 483
FUND LLC, a Wisconsin limited liability company (the “Developer”).
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a
plat for the Springs at Lake Elmo (referred to in this Agreement as the “Development”). 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 Development
on the condition that the Developer (i) acquire title to the property being platted, (ii) enter into this
Agreement, (iii) furnish the security required by this Agreement, and (iv) 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 Development 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 Development by the City Engineer and Public Works
Director in the City’s standard form or the easements have been dedicated by the
Developer to the City in the plat ;
B. the Developer has executed and recorded with Washington County the storm water
maintenance and easement agreement in a form approved by the City;
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
Development;
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 attend a preconstruction meeting with the City Engineer, and City staff;
L. the final plat has been recorded with Washington County; and
M. A title insurance policy has been issued in the amount of $50,000 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. 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, platting or dedication requirements enacted after the date of this Agreement.
5. 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. 2019-072, 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
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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.
6. IMPROVEMENTS. In developing the Development in accordance with the Plans, the
Developer shall make or install at its sole expense the following public and private improvements
(collectively, the “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;
M. Monuments required by Minnesota Statutes; and
N. PUD Amenity and Miscellaneous Improvements (decorative fencing, benches,
clubhouse, plaza).
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
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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 on-site project management. The
Developer’s Engineer is responsible for design changes and contract administration between the
Developer and the Developer’s contractor.
7. CITY ADMINISTRATION AND CONSTRUCTION OBSERVATION. At the time of the
City’s approval of the final plat for the Development, 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 Security 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 Development 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, periodic inspection of
proposed public utilities and public street construction. The City will bill the Developer for these
services on an hourly basis.
The direction and review provided by the City through the inspection of the Development
Improvements should not be considered a substitute for the Developer-required management of
the construction of the Development Improvements. The Developer must require the Developer’s
contractor(s) to furnish the City with a schedule of proposed operations at least five days before
the commencement of construction of each type of Development Improvement. The City shall
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inspect all Developer-installed public 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
8. 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 Development Improvements
identified in Paragraph 6 above.
9. TIME OF PERFORMANCE. The Developer shall install all required Development
Improvements by October 31, 2022, with the exception of the final wear course of asphalt on
public streets. The Developer shall install the bituminous wearing course on public streets after
the first course has weathered a winter season, consistent with warranty requirements, however,
final acceptance of the Development 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 to complete the required Improvements or construction. If the City grants an
extension, 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.
10. MAINTENANCE DURING CONSTRUCTION. The Developer shall be responsible for
all maintenance of the Development Improvements including the snow plowing of the public
streets, roads and alleys until the Development Improvements are accepted by the City in writing.
The Developer also is responsible to locate all underground utilities until the Development is
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accepted in writing by the City. The Developer shall place warning signs on all streets and private
driveways when hazards develop in the streets or private driveways to prevent the public from
traveling on same and to direct driver’s attention to detours. If and when any street becomes
impassable, such street shall be barricaded and closed by the Developer. In the event residences
are occupied before the Developer completing the streets and private driveways, the Developer
shall maintain a smooth surface and provide proper surface drainage to ensure the street and
private driveways are passable for traffic and emergency vehicles. The Developer shall be
responsible for keeping all streets and private driveways within and without the Development
clean and clear of dirt and debris that may spill, track, or wash onto the public street from the
Developer’s operations. The Developer shall contract for street cleaning for all streets within and
immediately adjacent to the Development. At a minimum, scraping and sweeping of the streets
shall take place on a weekly basis.
Before the City’s acceptance of the public streets the City may agree, at the City’s sole
discretion, to keep the public streets open during winter months by plowing snow. The City will
consider snow plowing public streets on a case-by-case basis and under the following conditions:
1) the Developer must request in writing the public streets it is requesting to be plowed by the
City, with such request received by the City before October 1st of each winter season that plowing
is requested; 2) there must be residences along the public street or the public street must be
required for emergency access purposes; 3) for public 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 public street; 4) gate valves and manholes must be level with the pavement surface;
5) public street curves, center medians, and other protrusions in the rights-of-way 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 public streets that are being requested to be plowed before the City will commit to the
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requested public street 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 public streets, curb and
gutter, manholes, catch basins or other infrastructure; and 8) the Developer shall enter into a
written agreement with the City for plowing of the public streets.
11. 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.
12. CONSTRUCTION ACCESS. Construction traffic access and egress for all
improvements, both public and private, is restricted to access the Development via Hudson
Boulevard or Julia Avenue via Hudson Boulevard. Construction traffic must access the
Development from Julia Avenue via Hudson Boulevard after the City grants certificate of
occupancy for the first residential building in the Development. The City does not permit any
construction traffic on any other adjacent local streets. The Developer is [JG1] required to manage
all construction-related parking (including parking for laborers), construction staging and material
deliveries internal to the Development. No parking or construction staging, including the loading
and unloading of materials and equipment along Hudson Boulevard North or along Julia Avenue
is allowed at any time during the construction of the Development Improvements and buildings
and structures within the Development. The Developer shall be responsible for repairing or
replacing all public street, curb and boulevard damage caused by construction activities at no cost
to the City. The Developer shall provide a stable area on-site for large trucks and emergency
vehicles to turn-around and/or provide a secondary access route for vehicles to access the
Hudson Boulevard entrance. The secondary access could be provided by connecting the parking
area and driveway in front of the clubhouse to the driveway to the west of the clubhouse (that is
east of Building 11[JG2]). The Developer shall use and keep this secondary vehicle access route
in place at least until such time as the Developer has installed the concrete curb and gutter and
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bituminous base course along Julia Avenue.
At all times throughout the course of construction, in accordance with the “preapproved
phasing plan”, the Developer shall be responsible for providing adequate access to all parts of
the Development for fire apparatus and other emergency vehicles and for providing adequate
areas for turning around fire apparatus and other large vehicles within the Development.
13. CONSTRUCTION SEQUENCE AND COMPLIANCE. The City will require the
Developer to construct the Development 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
Development 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.
14. EROSION CONTROL. All construction regarding the Development 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. Before initiating any work on the site, the Developer must
implement an erosion control plan and have the erosion control measures inspected and
approved by the City. Erosion and sediment control measures shall be coordinated and installed
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.
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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 of invoice, the City may draw down the Security to pay any costs.
No development, utility or street construction will be allowed, and the City will not issue any
building permits unless the Development is in full compliance with the approved erosion control
plan.
If the City issues building permits before the acceptance of public Development
Improvements, the Developer assumes all responsibility for erosion control compliance
throughout the entire Development and along the public rights-of-way and the City may take such
action as allowed by this Agreement against the Developer for any noncompliant issue as stated
above.
15. SITE GRADING. In order to construct the Development Improvements and otherwise
prepare the Property for development, it will be necessary for the Developer to grade the
Development. 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.
16. STREET AND UTILITY IMPROVEMENTS. All storm sewers, sanitary sewers,
watermain, and public 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 public streets, sidewalks, boulevards graded, public street signs installed and all
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restoration work on the site shall be completed in accordance with the approved Plans. Once the
work is completed, the Developer or the Developer’s representative shall submit a written request
to the City asking for an inspection of the initial Improvements. The City will then schedule a walk-
through to create a punch list of outstanding items to be completed. Upon receipt of the written
punch list provided by the City, the Developer must complete the punch list items and shall notify
the City to re-inspect the Development and the Improvements. The Developer shall install the
final bituminous wear course after the first bituminous course has weathered a winter season.
Before placement of the final bituminous wear course, the Developer shall repair or replace all
broken or failing curbs, sidewalks and damaged or settled public streets as determined by the
City from a pre-wear course walk through inspection.
17. LANDSCAPING AND TREE REPLACEMENT IMPROVEMENTS.
A. The Developer agrees to install landscaping in accordance with the approved Plans,
the City approvals, the City Code, the City’s Engineering Design and Construction
Standards Manual and the City’s Landscape and Irrigation Standards. All
landscaping materials such as trees, shrubs, grasses, or other vegetation installed
by the Developer must be warrantied and maintained for a period of two years. The
two-year warranty period shall be deemed to start once all required landscaping
identified as responsibility of Developer in the approved Plans has received
acceptance by the City. The Developer agrees to have the installer of the
landscaping complete an inspection 30 days before 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 in a timeframe approved by the
City or by the City’s Landscape Architect.
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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
Development 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 Development
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.”
18. SIGNAGE, STREET LIGHTING AND OTHER UTILITIES. The Developer agrees to
install street signs, traffic, no parking, other signage as may be required by the Fire Chief and
parking signs, and pavement markings within the Development all in accordance with the
approved Plans and the City Engineering Design Standards Manual. The Developer shall submit
street and traffic sign details to the City for approval before 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 Development all in accordance with the approved plans and right-of-way
permits.
19. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction
required by this Agreement, the Development Improvements lying within public easements shall
become City property. Before acceptance of the public Development Improvements by the City,
the Developer must furnish the City with a complete set of reproducible "record" plans and an
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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 Development
Improvements have been completed in accordance with the terms of this Agreement, the City
Engineer will accept the completed public Development Improvements.
20. PARK DEDICATION. The Developer shall pay the City a cash contribution of $453,700
in satisfaction of the City's park dedication requirements.
21. 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 Development 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 Residential Equivalent
Charges (“REC”) shall be paid by the Developer or the Developer’s contractor on behalf of the
Developer to the City at the time the City issues a building permit for each building within the
Development. The water availability charge (WAC) in the amount of $3,000.00 per REC shall be
paid by the Developer or the Developer’s Contractor on behalf of the Developer to the City at the
time the City issues a building permit for each building within the Development.
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 City issues a building permit for each building, including the
club house.
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22. STREET LIGHTS. The Developer is responsible for the cost of public 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 public street light installation consistent with the
approved plan. The required Security is $26,000 and consists of one 15-foot-tall Washington
Fluted black aluminum pole with traditional Colonial LED light at $6,000 and two 25-foot-tall fluted
black aluminum poles with Xcel Evans fixtures (black) at $10,000 each[ 3]. The Developer also
shall pay the City $129/light ($516) to reimburse the City for the first-year operating costs for the
public street lights.
23. 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.
24. BUILDING PERMITS/CERTIFICATES OF OCCUPANCY.
A. The City will not issue any footing and foundation or any other building permit for any
lot or building site within the Development, or within a completed phase of the
Development in a City preapproved phasing plan, until such time that sanitary
sewer, water, [ 4]storm sewer (excluding building yard drains), and one lift of asphalt
has been installed and tested for all streets (public and private) providing access to
the building location including emergency turnaround access, all Hudson Boulevard
Improvements are completed including turn-lanes; grading has been completed
within the entire public street right-of-ways; public street and traffic control signs are
installed, property monuments have been installed or all property corners and
building sites have been staked with the property corner and building elevations
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noted on the stake; and the building foundations are verified to be within 0.1 feet of
approved grading plan elevations. [ 5]The City will only issue vertical construction
permits (for building work above the footings and foundations), in accordance with
the preapproved phasing plan, after the Developer has installed footings and
foundations and the footings and foundations are inspected and approved by the
City and the Developer has submitted as-built grading plans to the City and the City
has approved the grading plans for each building and/or phase of the Development,
including all temporary or permanent downstream storm water drainage facilities
from the building or phase of the Development as 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 Development. Once the construction has started, the
City will not consider revisions to the phasing plan for the purpose of issuing building
permits.
B. The City Planning Director may authorize the issuance of a permit to allow one
“leasing trailer” to be placed within the Development before the completion of the
Development Improvements described in paragraph 24 (A) above, if there is safe
public access to the lot or location with the leasing trailer 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 are in place. The
Developer shall use the leasing trailer only for rental or leasing purposes and for no
other purposes.
C. Before the City approves or issues any building permits, the Developer shall have
placed wetland buffer monuments in accordance with the City’s zoning ordinance.
The City Planning Department shall approve the wetland monument design before
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the Developer places the wetland monuments.
D. Breach of the terms of this Agreement by the Developer, including nonpayment of
billings from the City, shall be grounds for denial of building permits, certificates of
occupancy, and withholding of other permits, inspection or actions and the halting of
all work in the Development.
E. If the City issues building permits before the acceptance of the public Development
Improvements by the City, the Developer assumes all liability and costs resulting in
delays in completion of public Development Improvements and damage to public
Development Improvements caused by the City, the Developer, the Developer’s
contractors, subcontractors, materialmen, employees, agents, or any third parties.
F. The City will not issue sanitary sewer or water connection permits for the buildings
within the Development until the streets and driveways needed for access to the
building sites have been paved with a bituminous surface and the utilities are tested
and approved by the City Engineer.
G. The City may issue building permits for a maximum of five residential buildings (a
maximum of 100 dwelling units) and one clubhouse in the Development after the
Developer has installed the Hudson Boulevard turn lane and the primary site
entrance on Hudson Boulevard. The City will only issue building permits for
additional buildings beyond the first five buildings (for more than 100 dwelling units)
after the Developer has installed the required site access driveway to Julia Avenue
and has constructed Julia Avenue (with all utilities, curb and gutter, turn lane(s) and
the first lift of asphalt (base course of bituminous)) adjacent to the Development.
Once Julia Avenue is constructed, all construction access and egress shall take
place at Julia Avenue via Hudson Boulevard. The Developer shall install curb and
gutter on all private drives adjacent to each building in the Development phasing
plan as approved by the City and shall install all storm sewer facilities for and
17
adjacent to the building and the storm water facilities down-stream from the building
before the City’s issuance of a Certificate of Occupancy for each building.
25. RESPONSIBILITY FOR COSTS.
A. In the event that the City receives claims from labor, materialmen, or others that work
required by this Agreement has been performed and the amounts due to them have
not been paid, and the laborers, materialmen, or others are seeking payment from
the City, the Developer hereby authorizes the City to commence an Interpleader
action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District
Courts, to draw upon the Security in an amount up to 125 percent of the claim(s) and
deposit the funds in compliance with the Rule, and upon such deposit, the Developer
shall release, discharge, and dismiss the City from any further proceedings as it
pertains to the funds deposited with the District Court, except that the Court shall
retain jurisdiction to determine attorneys' fees pursuant to this Agreement.
B. Except as otherwise specified herein, the Developer shall pay all costs incurred by
it or the City in conjunction with the development of the Development , 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 Development,
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 Development . 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
before 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
18
Development. 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, inspection 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 the Property or any portion of it.
F. The Developer shall pay in full all bills submitted to it by the City for obligations
incurred under this Agreement within 30 days after receipt. Bills not paid within 30
days shall be assessed a late fee per the City adopted fee schedule. Upon request,
the City will provide copies of detailed invoices of the work performed by the City
and its consultants.
26. CITY PAYMENTS. The City shall not reimburse the Developer for any public
improvements.
27. SPECIAL PROVISIONS. The following special provisions shall apply to the
Development:
A. Implementation of the changes and recommendations listed in the August 28,
2019, Engineering memorandum. This City will not release the final plat for
recording until the City has granted approval of the construction plans.
B. The Developer must obtain a sign permit from the City Building Official before the
installation of any Development identification signs.
C. The Developer shall enter into a Landscape License Agreement with the City that
clarifies the individuals or entities responsible for maintenance of any landscaping
19
installed in areas outside of land designated as a public park or open space in the
Development.
D. The Developer shall install in the public street right-of-way a bituminous trail and a
concrete sidewalk along Julia Avenue and an eight-foot-wide trail along the north
side of Hudson Boulevard.
E. The Developer shall extend the public watermain to the northerly limits of the
Development as required by the City Engineer.
F. The Developer shall revise the landscape plans to meet the conditions of approval
of the preliminary plat and the changes required by the City’s Landscape Architect
as outlined in his memo dated July 30, 2019. The City’s Landscape Architect must
review and approve these revised plans before the City will release the final plat
for recording or before allowing the start of any construction or grading.
G. The Developer shall address all Fire Chief and Building Official comments in its
final development and building plans including the placement of the buildings and
fire hydrants, street and driveway design, parking and emergency vehicle access
within the Development.
H. The Developer shall obtain any necessary approvals or easements from adjoining
property owners for any private off-site work or impacts the development of the
Property may have, including, but not limited to, storm water drainage and utility
work.
I. The Developer or its successor shall notify all renters about possible City outdoor
watering restrictions or limits on outdoor water use including no vehicle washing
and no watering of grass, landscaping or sod unless the Developer or its successor
is notified by the City that this notice is no longer required. Said decision about
whether or not this notice is no longer required shall be made at the sole discretion
20
of the City. The Developer shall have the City approve the notification message
before recording the final plat.
J. The final grading and drainage plans must provide sufficient emergency overland
path flow for storm water that is adequately protected to prevent buildings within
this Development from being flooded.
K. All storm water facilities internal to the Development must be privately owned and
maintained by the Developer or its successor.
L. The Developer must install a five-foot-tall decorative fence around the entire
Development perimeter. The Developer shall not use any chain link fencing on the
perimeter of the Development property.
M. The Developer shall be responsible for the construction of all the improvements
within the Hudson Boulevard right-of-way (including, but not limited to, the trail and
turn lanes) as required by the City and as further described in the City Engineer’s
construction plan review memo dated October 18, 2019. These improvements
shall comply with the City’s Hudson Boulevard Design Guidelines as may have
been modified with the City’s approval of the Springs of Lake Elmo final PUD plans
and final plat.
N. The Developer shall be responsible for the construction of all improvements for
Julia Avenue (including, but not limited to, the trail, sidewalks, and turn-lanes) as
required by the City and as further described in the City Engineer’s construction
plan review memo dated October 18, 2019. These improvements shall comply
with the City’s Design Standards for Julia Avenue as may have been modified with
the City’s approval of the Springs of Lake Elmo final PUD plans and final plat.
O. The Developer shall install three pedestrian benches adjacent to the Development
for public use. Two of the benches shall be installed along Julia Avenue and one
21
bench shall be installed near the Development entrance along the north side of
Hudson Boulevard. The final location and style of the benches shall be approved
by the City before the Developer installs the benches.
28. MISCELLANEOUS.
A. The Developer may not assign this Agreement without the written permission of the
City Council. The Developer's obligations hereunder shall continue in full force and
effect even if the Developer sells one or more lots, the entire Property, or any portion
of it.
B. Retaining walls that require a building permit shall be constructed in accordance with
plans and specifications prepared by a professional engineer licensed by the State
of Minnesota. Following construction, a certification signed by the design engineer
shall be filed with the City Engineer evidencing that the retaining wall was
constructed in accordance with the approved Plans. All retaining walls identified on
the Plans or by special conditions referred to in this Agreement shall be constructed
before the City issues any other building permit for a lot or a building site on which
or adjacent to a retaining wall is required to be built.
C. 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 Development Improvements,
public liability and property damage insurance covering personal injury, including
death, and claims for property damage that 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
22
Developer shall file with the City a certificate of insurance evidencing coverage prior
to the City signing the final plat. The certificate shall provide that the City must be
given 30 days’ advance written notice of the cancellation of the insurance.
D. Third parties shall have no recourse against the City under this Agreement.
E. 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.
F. 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.
G. 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.
H. 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
23
any other right, power or remedy.
I. The Developer represents to the City that the Development and the Development
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 the
Development is not in compliance with any rules, laws or regulations, the City may,
at its option, refuse to allow construction or development work in the Development
until the Developer brings it into compliance. Upon the City’s demand, the Developer
shall cease work until there is compliance.
29. 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 Development 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.
30. 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 actions:
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
24
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.
31. 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 Development 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 Development 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 Development 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.
25
32. WARRANTY. During the warranty period, the Developer warrants that all public
Development 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 Development Improvement, or any portion or element thereof that shows
signs of failure, normal wear and tear excepted. If the Developer fails to repair or replace a
defective public Development 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 public Development 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 the Development 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 Development of the repair or replacement
of the public Development 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 public 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 public 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 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.
26
33. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the
terms of this Agreement, payment of special assessments, payment of the costs of all public
Development Improvements, and construction of all public Development 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 $3,325,185.
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, [ 6] for any violation of the terms of this Agreement or if the
Security is allowed to lapse before the end of the required term. If the Developer has not
completed the required public Development Improvements at least thirty (30) days before the
expiration of the Security, the City also may draw it down. If the Security is drawn down, the
proceeds shall be used by the City to cure the default.
34. 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:
27
A. Upon completion of the site grading operations, including temporary site restoration. The
Developer must submit an as-built grading survey to the City that at a minimum
establishes the as-built grades at all lot and building corners and the downstream
drainage conveyance systems and storm water ponds. Upon inspection of the site and
approval of the as-built survey by the City, the City may release 100 percent, or
$1,186,625, of the Security associated with Development grading. This Security
reduction does not include amounts related to erosion and sedimentation control.
B. Up to 75 percent of the Security associated with the itemization on Exhibit C may be
released upon completion of the following key milestones of the project as determined
by the City Engineer:
1. Construction Categories 2 and 3: The amount of $362,707 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 $844,204 may be released
when all public 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, 15 and 17: The amount of $187,993 may
be released when all remaining Developer’s obligations under this Agreement
have been installed and completed including: (1) bituminous wear course; (2)
public street lighting and private utilities; (3) trails; (4) bio retention facilities; (5)
iron monuments for lot corners have been installed; (3) all financial obligations
28
to the City satisfied; (4) the required "record" plans in the form of the City
standards have been received and approved by the City; and (5) the public
Development Improvements are accepted by the City Engineer and the City
Council.
4. Construction Categories 11, 12 and 13: The City may release the amount of
$155,578 when landscaping Development Improvements have been installed
to the satisfaction of the City including all corrective work for any identified
punch list items.
5. Construction Category 16: The City may release the amount of $53,438 when
all the miscellaneous Development Improvements have been installed to the
satisfaction of the City including all corrective work for any identified punch list
items.
C. Twenty-five percent of the original Security amount, excluding grading and landscaping
improvements shall be retained until: (1) all public Development Improvements have
been fully completed and accepted by the City, including all corrective work and warranty
punch list items; (2) all financial obligations to the City have been satisfied; and (3) the
warranty period has expired.
D. Twenty-five percent of the original Security amount associated with landscaping shall be
retained by the City until: (1) all landscaping Development Improvements have been fully
completed and accepted by the City, including all corrective work and warranty punch list
items being completed by the Developer; (2) all financial obligations to the City have been
satisfied; and (3) the warranty period has expired.
E. In addition to the above project milestone based Security reductions, the Developer may
submit a written request and upon receipt of proof satisfactory to the City Engineer that
work is progressing in accordance with the approved Plans and the terms of this
Agreement and that all financial obligations to the City have been satisfied, the City
29
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 the Developer has not installed
boulevard sidewalks or trails.
F. It is the intent of the parties that the City at all times have available to it Security in an
amount adequate to ensure completion of all elements of the Development
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.
35. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash
requirements under this Agreement that must be paid to the City before recording the final plat:
Sewer Availability Charge (SAC): Per Section 21 $ To be paid at time of building permit
Water Availability Charge (WAC): Per Section 21 $To be paid at time of building permit
Park Dedication: $453,700.00
Street Light Operating Fee $516.00
City Engineering Administration Escrow: $50,000.00
TOTAL CASH REQUIREMENTS: $504,216.00 (estimated)
36. 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: W134N8675 Executive Parkway, Menomonee Falls, WI 53051. 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.
37. EVIDENCE OF TITLE. The Developer shall furnish the City with evidence of fee
ownership of the property being platted by way of a copy of its deed.
30
38. 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
Development. This Agreement shall be construed according to the laws of the Minnesota.
39. 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.
40. 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.
41. 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
31
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
DEVELOPER
Continental 483 Fund LLC,
a Wisconsin limited liability company,
By: Continental Properties Company, Inc.,
a Wisconsin corporation, its manager
By: ___________________________________
Daniel J. Minahan
President
STATE OF WISCONSIN )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ___, day of _________________,
20___, by Daniel J. Minahan, President of Continental Properties Company, Inc., a Wisconsin
corporation, manager of Continental 483 Fund LLC, a Wisconsin limited liability company, 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
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 3880 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
B-1
EXHIBIT A TO
DEVELOPMENT AGREEMENT
Legal Description of Property Being Final Platted
B-2
EXHIBIT B TO
DEVELOPMENT AGREEMENT
List of Plan Documents
The following documents prepared by Sambatek, collectively constitute the Plans:
THOSE DOCUMENTS BY AS FOLLOWS:
SHEET TITLE REVISION
DATE
C-1
EXHIBIT C TO
DEVELOPMENT AGREEMENT
Development Improvements Cost/Security Amount Estimate[ 7]
CONSTRUCTION CATEGORY COST 125 percent
1
Grading $949,300 $1,186,625
2
Sanitary Sewer $57,086 $71,358
3
Watermain $329,801 $412,251
4
Storm Sewer (includes pond
structures and outfall pipes)
$254,704
$318,380
5
Streets and Sidewalks (Julia and
Hudson)
$645,780
$807,225
6
Trails $NA $NA[GW8]
7
Surface Water Facilities (ponds,
infiltration basins, other BMPs)
(West End Detention)
$NA $NA
8 Street Lighting
$26,000 $32,500
10 NA NA NA
9
Street and Traffic Signs $6,645 $8,306
11
Landscaping Improvements $160,950 $201,188
12 Tree Preservation and Restoration
Included in
landscaping
13
Wetland Buffers $5,000 $6,250
14
Monuments $1,500 $1,875
15 Erosion and Sedimentation $112,681 $140,851
16 PUD Amenity Improvements $57,000 $71,250
17
Developer’s Record Drawings $5,000 $6,250
TOTALS
$2,611,447
$3,264,309
C-2
FORM OF IRREVOCABLE LETTER OF CREDIT
No.__________________
Date: ________________
TO: City of Lake Elmo
Dear Sir or Madam:
We hereby issue, for the account of (Name of Developer) and in your favor, our
Irrevocable Letter of Credit in the amount of $___________ available to you by your draft drawn on sight
on the undersigned bank.
The draft must:
a) Bear the clause, "Drawn under Letter of Credit No.____________, dated ______________, 20___,
of (Name of Bank)" ;
b) Be signed by the Mayor or City Administrator of the City of Lake Elmo.
c) Be presented for payment at (Address of Bank) , on or before 4:00 p.m. on
November 30, 20___.
This Letter of Credit shall automatically renew for successive one-year terms unless, at least forty-five (45)
days prior to the next annual renewal date (which shall be November 30 of each year), the Bank delivers
written notice to the Lake Elmo City Administrator that it intends to modify the terms of, or cancel, this Letter
of Credit. Written notice is effective if sent by certified mail, postage prepaid, and deposited in the U.S. Mail,
at least forty-five (45) days prior to the next annual renewal date addressed as follows: City Administrator,
City Hall, 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