HomeMy WebLinkAbout#08 - Kwik Trip Development Agreement STAFF REPORT
DATE: 01/07/2020
REGULAR
TO: City Council
FROM: Ken Roberts, Planning Director
AGENDA ITEM: Inwood 6th Addition (Kwik Trip) - Development Agreement
REVIEWED BY: Jack Griffin, City Engineer Sarah Sonsalla, City Attorney
BACKGROUND: On October 15, 2019, the City Council adopted Resolution 2019-076 approving the minor subdivision for
the Inwood 6th Addition and a resolution approving a conditional use permit (CUP) a Kwik Trip fuel station and convenience store. 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 2020-006 approving the developer agreement for the
Inwood 6th Addition (Kwik Trip). REVIEW/ANALYSIS: A condition of approval of the Inwood 6th Addition 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 October 31, 2020 due to phasing within the development.
• That the developer provide a letter of credit in the amount of $439,246 related to the cost of the proposed public improvements.
• That the developer provide the City with a cash deposit of $50,215 for the donation for the traffic signal at Inwood Avenue and 5th Street, the park dedication fee 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 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 2020-006 approving the developer agreement for the Inwood 6th Addition; or
2) Direct Staff to amend the draft developer agreement to bring back to a future City Council meeting.
RECOMMENDATION:
Staff recommends the City Council adopt Resolution 2020-006 approving the developer’s agreement for the Inwood 6th Addition (Kwik Trip) with the following motion:
“Move to adopt Resolution 2020-006 approving the developer’s agreement for the Inwood 6th
Addition (Kwik Trip)”
ATTACHMENTS:
• Resolution 2020-006
• Inwood 6th Addition (Kwik Trip) Development Agreement
CITY OF LAKE ELMO WASHINGTON COUNTY
STATE OF MINNESOTA RESOLUTION NO. 2020-006 A RESOLUTION APPROVING A DEVELOPER’S AGREEMENT FOR THE INWOOD 6TH
ADDITION (KWIK TRIP) 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, RPS Legacy LLC, Little Canada, Minnesota (“applicant”) has previously submitted
an application to the City of Lake Elmo (“City”) for a minor subdivision for the Inwood 6th Addition; and WHEREAS, the Lake Elmo City Council approved a minor subdivision for the Inwood 6th
Addition on October 15, 2019; and WHEREAS, RPS Legacy is now proposing to final plat the Inwood 6th Addition; and WHEREAS, the Lake Elmo City Council adopted Resolution 2019- 076 on October 15, 2019 approving the minor subdivision and Final Plat for the Inwood 6th Addition; and WHEREAS, a condition of approval of said Resolution 2019-076, 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 January 7, 2020 meeting;
NOW, THEREFORE, BE IT RESOLVED THAT the City Council does hereby approve the Developer’s Agreement for Inwood 6th Addition (Kwik Trip) and authorizes the Mayor and City Clerk to
execute the document. Passed and duly adopted this 7th day of January, 2020 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) Lot 1, Block 1, Inwood 6th Addition (Kwik Trip)
THIS DEVELOPMENT AGREEMENT is dated ______________, 2020__, by and between
the CITY OF LAKE ELMO, a Minnesota municipal corporation (the “City”) and Kwik Trip, Inc., a
Wisconsin corporation (the “Developer”).
1. REQUEST FOR PLAT APPROVAL. RPS Legacy Desoto, LLC, a Minnesota limited
liability company (the “Fee Owner”) has asked the City to approve a plat for Inwood 6th 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 that
Fee Owner record the plat with the County Recorder or Registrar of Titles within 180 days after
the City Council approves the final plat.
3. RIGHT TO PROCEED. This Agreement is intended to regulate the development of Lot
1, Block 1, Inwood Sixth Addition (the “Property”) and the construction therein of certain public
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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 Property 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 Property by the City Engineer and Public Works Director
in the City’s standard form or the easements have been dedicated to the City on the plat;
B. this Agreement has been executed by the Developer, Fee Owner and the City;
C. the required Security (as hereinafter defined) have been received by the City from or on
behalf of the Developer;
D. final construction plans and specifications have been submitted by the Developer and
approved by the City Engineer;
E. 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;
F. the Developer has paid any outstanding assessments and taxes for the Property;
G. the Developer has fulfilled any park dedication requirements as specified under this
Agreement;
H. the Developer has received all necessary permits from the MPCA, MDH, DNR, applicable
watershed, Washington County, and any other agency having jurisdiction over the
Property;
I. the Developer has provided the City with a certificate of insurance required by this
Agreement;
J. 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;
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K. the final plat has been recorded with Washington County;
L. a title insurance policy has been issued in the amount of $100,000 in favor of the City
insuring the City’s interest as they appear on the plat; and
M. the City has issued a written notice that all above conditions have been satisfied and that
the Developer may proceed.
4. PHASED DEVELOPMENT. If the plat is a phase of a multi-phased preliminary plat,
the City may refuse to approve final plats of subsequent phases of the development if the
Developer is not in compliance with any term of this Agreement and the non-compliance has not
been remedied. Development of subsequent phases of the development may not proceed until
development agreements for such phases are approved by the City. Park dedication charges
and availability charges for sewer and water referred to in this Agreement are not being imposed
on outlots that are designated in the plat for future subdivision into lots and blocks, if any, in the
plat. Such charges will be calculated and imposed when these outlots, if any, are platted into lots
and blocks.
5. PRELIMINARY PLAT STATUS. If the Subdivision is a phase of a multi-phased
preliminary plat, the preliminary plat approval for all phases not final platted shall lapse and be
void unless final platted into lots and blocks, not outlots, within five years after preliminary plat
approval.
6. CHANGES IN OFFICIAL CONTROLS. For five years from the date of this Agreement,
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.
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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 Nos. 2019-075 and 2019-077, 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 Property in accordance with the Plans, the
Developer shall make or install at its sole expense the following public and private improvements
(collectively, the “Property 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. 5th Street turn lane, signage, sidewalk and public right-of-way improvements;
F. Underground private utilities;
G. Landscaping;
H. Tree preservation and reforestation; and
I. 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
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Construction Standards Manual, and the City’s Landscape and Irrigation Standards as a condition
of City acceptance. In addition, the City may, at the City's discretion and at the Developer's
expense, have one or more City inspectors or a soil engineer inspect the Developer’s work on a
full or part-time basis. The Developer's engineer shall provide for on-site project management.
The Developer's engineer is responsible for design changes and contract administration between
the Developer and the Developer's contractor.
9. CITY ADMINISTRATION AND CONSTRUCTION OBSERVATION. At the time of the
City’s approval of the final plat for the Subdivision, the Developer shall submit to the City an
amount to be escrowed by the City for City administration and construction observation costs in
an amount provided under paragraph 34 of this Agreement - Summary of Cash Requirements.
Thereafter, the Developer shall reimburse the City each month, within 30 days of receiving an
invoice, for all administration and construction observation costs incurred by the City during the
construction of the Property 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 Property
Improvements should not be considered a substitute for the Developer-required management of
the construction of the Property Improvements. The Developer must require the Developer’s
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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 Property Improvement. The City shall inspect
all Developer-installed Property Improvements during and after construction for compliance with
the Plans, the City approvals, the City Code, the City’s Engineering Design and Construction
Standards Manual, and the City’s Landscape and Irrigation Standards. The Developer will notify
the City at such times during construction as the City requires for inspection purposes. Such
inspection is pursuant to the City’s governmental authority, and no agency or joint venture
relationship between the City and the Developer is thereby created.
10. CONTRACTORS/SUBCONTRACTORS. City Council members, City employees,
and City Planning Commission members, and corporations, partnerships, and other entities in
which such individuals have greater than a 25 percent ownership interest or in which they are an
officer or director may not act as contractors or subcontractors for the Property Improvements
identified in paragraph 8 above.
11. TIME OF PERFORMANCE. The Developer shall install all required Property
Improvements by October 31, 2020. The Developer may, however, request an extension of time
from the City. If the City grants a time 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.
12. MAINTENANCE DURING CONSTRUCTION. The Developer shall be responsible for
all maintenance of the Property Improvements until the Property Improvements are accepted by
the City in writing. The Developer is also responsible to locate all underground utilities until the
Property Improvements are 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. The Developer and contractors must keep 5th Street
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North open to traffic at all times unless a right-of-way obstruction permit is obtained from the City.
The Developer shall be responsible for keeping streets within and outside of the Property 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 Property. At a minimum, scraping and sweeping shall take place on a weekly
basis and on a daily basis during heavy tracking days.
13. LICENSE. The Developer hereby grants the City, its agents, employees, officers, and
contractors a license to enter the Property to perform all work and inspections deemed
appropriate by the City in conjunction with the development of the Property and this Agreement.
14. CONSTRUCTION ACCESS AND PARKING. Construction traffic access and egress
for all work on the site including grading, utility construction, building construction, and Property
Improvements is restricted to access the Property via 5th Street at the approved new turn lane
and designated rock construction entrance per the approved erosion control plans. No
construction traffic is permitted on other adjacent local streets or at any other location along 5th
Street North.
All construction parking and staging, including the loading and unloading of equipment and
supplies during the construction of the site improvements and buildings must be completed
interior to the Subdivision and is not allowed to occur within any public right-of-way. The
Developer and contractors shall be responsible for the repair, replacement, or restoration of any
damage to the street, curb and boulevard caused by the construction activities. Such work shall
meet all City standards and specifications.
15. CONSTRUCTION SEQUENCE AND COMPLIANCE. The City will require the
Developer to construct the Property Improvements in a sequence that 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 Property
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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 Property 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 City inspect and approve the erosion control
measures. The Developer shall coordinate and install erosion and sediment control measures
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.
The Developer shall promptly reseed all areas disturbed for site improvements after the work in
the area is complete unless construction of the next stage of the improvements will begin in that
area within seven days. The parties recognize that time is of the essence in controlling erosion.
If the Developer does not comply with the erosion control plan and schedule or
supplementary instructions received from the City, the City may take such action as it deems
appropriate to control erosion. The City will endeavor to notify the Developer in advance of any
proposed action, but failure of the City to do so will not affect the Developer's and City's rights or
obligations hereunder. If the Developer does not reimburse the City for any cost the City incurred
for such work within 30 days, the City may draw down the Security to pay any costs. The City will
not allow any development, utility, or street construction and the City will not issue any building
permits unless the Property is in full compliance with the approved erosion control plan.
If the City issues building permits before the acceptance of public Property Improvements,
the Developer assumes all responsibility for erosion control compliance throughout the Property
and the City may take such action as allowed by this Agreement against the Developer for any
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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 Property Improvements and otherwise
prepare the Property for development, it will be necessary for the Developer to grade the Property.
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 the 5th Street turn lane improvements, shall be installed in
accordance with the approved Plans, the City approvals, the City Code, and the City’s
Engineering Design and Construction Standards Manual. Curb and gutter, bituminous streets
including base and wear course, sidewalks, boulevards graded, street signs installed, and all
restoration work on the site shall be completed in accordance with the approved Plans. Once the
work is completed, the Developer or the Developer’s representative shall submit a written request
to the City asking for an inspection of the initial improvements. The City will then schedule a walk-
through to create a punch list of outstanding items to be completed. Upon receipt of the written
punch list provided by the City, the Developer must complete the punch list items and notify the
City to reinspect the improvements.
19. LANDSCAPING AND TREE REPLACEMENT IMPROVEMENTS.
A. The Developer agrees to install landscaping in accordance with the approved Plans,
the City approvals, the City Code, the City’s Engineering Design and Construction
Standards Manual, and the City’s Landscape and Irrigation Standards. All
landscaping materials such as trees, shrubs, grasses, or other vegetation installed
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by the Developer must be warrantied and maintained for a period of two (2) years.
The two-year warranty period shall be deemed to start once all required landscaping
identified as responsibility of Developer in the approved Plans has received
acceptance by the City. The Developer agrees to have the installer of the
landscaping complete an inspection 30 days prior to the end of the two-year warranty
period and provide the City with a written report identifying the condition of all
landscaping. In the event any landscaping installed by the Developer is deemed to
be in poor condition or dead, the Developer is to replace the landscaping with like
kind materials or as otherwise approved by the City.
B. The Developer shall be responsible for maintaining regular watering, fertilizing, and
over-seeding necessary to establish final lawns and yards as identified in the
approved Plans for outlots, public rights-of-way, and any disturbed areas outside the
Property boundaries according to a landscape maintenance plan approved by the
City. The Developer agrees to achieve “substantial performance” on all seeded or
sodded areas disturbed during the construction of Property Improvements. For the
purpose of this Agreement “substantial performance” shall be defined for areas
seeded or sodded with a turf or lawn mix as “square foot turf areas with an average
blade height of three inches free of eroded, bare, or dead spots and free from
perennial weeds or unwanted grasses with no visible surface soil.” For areas seeded
with a native grass or flower mix “substantial performance” shall be defined as
“square foot native grass or flower areas with an average height of eight inches free
of eroded, bare, or dead spots and no visible surface soil.”
20. SIGNAGE, STREET LIGHTING, AND OTHER UTILITIES. The Developer agrees
to install street signs, traffic and parking signs, and pavement markings within the Property 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 prior to installation.
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In addition, the Developer shall be responsible for the cost and all coordination work to extend
private utilities along with street lighting within the Property 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 Property Improvements lying within public easements shall
become City property. Prior to acceptance of the public Property Improvements by the City, the
Developer must furnish the City with a complete set of reproducible "record" plans and an
electronic file of the "record" plans in accordance with the City’s Engineering Design and
Construction Standards Manual together with the following affidavits:
- Developer/Developer Engineer’s Certificate - Land Surveyor’s Certificate
certifying that all construction has been completed in accordance with the terms of this
Agreement. All necessary forms will be furnished by the City. Upon receipt of “record plans” and
affidavits, and upon review and verification by the City Engineer that the public Property
Improvements have been completed in accordance with the terms of this Agreement, the City
Engineer will accept the completed public Property Improvements.
22. PARK DEDICATION. The Developer shall pay a cash contribution of $10,215 in
satisfaction of the City's park dedication requirements. The amount of the cash contribution was
calculated as follows: 2.27 acres (for Lot 1, Block 1) at $4,500 per acre.
23. SANITARY SEWER AND WATER UTILITY AVAILABILITY CHARGES (SAC AND
WAC). The Developer shall be responsible for the payment of all sewer availability charges
(SAC) and all water availability charges (WAC) with respect to the Property 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 payable
and collected by the City at the time the City issues a building permit for the building.
The water availability charge (WAC) in the amount of $3,000.00 per REC shall payable
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and collected by the City at the time the City issues a building permit for the building.
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 the building.
24. BUILDING PERMITS/CERTIFICATES OF OCCUPANCY[ 1].
A. The City will not issue a certificate of occupancy for any building on the Property until
such time that sanitary sewer, water, storm sewer, and the 5th street turn lane
improvements are installed and as-built plans have been submitted and approved
by the City.
B. Breach of the terms of this Agreement by the Developer, including nonpayment of
billings from the City, shall be grounds for denial of building permits, certificates of
occupancy, and withholding of other permits, inspection or actions and the halting of
all work in the Property.
C. If the City issues building permits before the acceptance of the public Property
Improvements by the City, the Developer assumes all liability and costs resulting in
delays in completion of public Property Improvements and damage to public
Property Improvements caused by the City, the Developer, the Developer’s
contractors, subcontractors, materialmen, employees, agents, or any third parties.
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
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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 Property, 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 Property, 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 Property. 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 Property.
The Developer shall indemnify the City and its officials, employees, and agents for
all costs, damages, or expenses which the City may pay or incur in consequence of
such claims, including attorneys' fees.
D. The Developer shall reimburse the City for costs incurred in the enforcement of this
Agreement, including reasonable engineering and attorneys' fees.
E. The Developer shall pay, or cause to be paid when due, and in any event before any
penalty is attached, all special assessments referred to in this Agreement. This is a
personal obligation of the Developer and shall continue in full force and effect even
if the Developer sells one or more lots, the entire Property, or any portion of it.
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F. The Developer shall pay in full all bills submitted to it by the City for obligations
incurred under this Agreement within 30 days after receipt. Bills not paid within 30
days shall be assessed a late fee per the City adopted fee schedule. Upon request,
the City will provide copies of detailed invoices of the work performed by the City
and its consultants.
26. SPECIAL PROVISIONS. The following special provisions shall apply to the Property:
A. Implementation of the recommendations and requirements listed in the August 6,
2019, Engineering memorandum.
B. The Developer must obtain a sign permit from the City Building Official prior to
installation of any subdivision identification signs.
C. The final plat must show a 10-foot-wide drainage and utility easement along all
property lines.
D. All easements as requested by the City Engineer and the Public Works Department
shall be documented on the final plat before the execution of the final plat by City
officials. The City must receive separate drainage and utility easements in the City’s
standard form of easement agreement for any off-site Property Improvements
(beyond the plat limits). Any off-site easements, if required, must be clearly shown
on the street, grading, and utility plans with all dimensions labeled. The easements
must be obtained by the Developer before the start of grading.
27. MISCELLANEOUS. A. The Developer may not assign this Agreement without the written permission of the
City Council. The Developer's obligations hereunder shall continue in full force and
effect even if the Developer sells one or more lots, the entire Property, or any portion
of it.
B. Retaining walls that require a building permit shall be constructed in accordance with
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plans and specifications prepared by a professional engineer licensed by the State
of Minnesota. Following construction, a certification signed by the design engineer
shall be filed with the City Engineer evidencing that the retaining wall was
constructed in accordance with the approved Plans. All retaining walls identified on
the Plans or by special conditions referred to in this Agreement shall be constructed
before any other building permit is issued for a lot on which a retaining wall is
required to be built.
C. Legal documents regarding any covenants and restrictions, if applicable, shall be
submitted to the City prior to recording of the final plat for review and approval by
the City Attorney.
D. The Developer shall take out and maintain or cause to be taken out and maintained
until six months after the City has accepted the public Property Improvements, public
liability and property damage insurance covering personal injury, including death,
and claims for property damage which may arise out of Developer's work or the work
of its subcontractors or by one directly or indirectly employed by any of them.
Limits for bodily injury and death shall be not less than $500,000 for one person and
$1,500,000 for each occurrence; limits for property damage shall be not less than
$200,000 for each occurrence; or a combination single limit policy of $1,500,000 or
more. The City shall be named as an additional insured on the policy, and the
Developer shall file with the City a certificate of insurance evidencing coverage prior
to the City signing the plat. The certificate shall provide that the City must be given
30 days’ advance written notice of the cancellation of the insurance.
E. Third parties shall have no recourse against the City under this Agreement.
F. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this
Agreement is for any reason held invalid, such decision shall not affect the validity
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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 a contract to purchase from Fee
Owner 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 Property and the Property
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
Property is not in compliance, the City may, at its option, refuse to allow construction
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or development work in the Property until it is brought into compliance. Upon the
City’s demand, the Developer shall cease work until there is compliance.
28. EVENTS OF DEFAULT. The following shall be "Events of Default" under this
Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement,
any one or more of the following events:
A. Subject to unavoidable delays, failure by the Developer to commence and complete
construction of the public Property Improvements pursuant to the terms, conditions
and limitations of this Agreement.
B. Failure by the Developer to substantially observe or perform any material covenant,
condition, obligation or agreement on its part to be observed or performed under this
Agreement.
29. REMEDIES ON DEFAULT. Whenever any Event of Default occurs, the City, subject
to any rights of third parties agreed to by the City pursuant to this Agreement, or otherwise by
written, executed instrument of the City, may take any one or more of the following:
A. The City may suspend its performance under the Agreement until it receives
assurances from the Developer, deemed adequate by the City, that Developer will
cure its default and continue its performance under the Agreement. Suspension of
performance includes the right of the City to withhold permits including, but not
limited to, building permits.
B. The City may initiate such action, including legal or administrative action, as is
necessary for the City to secure performance of any provision of this Agreement or
recover any amounts due under this Agreement from the Developer, or immediately
draw on the Security, as set forth in this Agreement.
30. ENFORCEMENT BY CITY; DAMAGES. The Developer acknowledges the right of
the City to enforce the terms of this Agreement against the Developer, by action for specific
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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 Property 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 Property 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 Property to recover the costs thereof. For this purpose, the Developer, for itself
and its successors and assigns, expressly waives any and all procedural and substantive
objections to the special assessments, including, but not limited to, hearing requirements, and
any claim that the assessments exceed the benefit to the land so assessed. The Developer, for
itself and its successors and assigns, also waives any appeal rights otherwise available pursuant
to Minnesota Statutes Section 429.081.
The Developer also acknowledges that its failure to perform any or all of the Developer’s
obligations under this Agreement may result in substantial damages to the City; that in the event
of default by the Developer, the City may commence legal action to recover all damages, losses
and expenses sustained by the City; and that such expenses may include, but are not limited to,
the reasonable fees of legal counsel employed with respect to the enforcement of this Agreement.
31. WARRANTY. During the warranty period, the Developer warrants that all Property
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 Property Improvement, or any portion or element thereof, which shows signs of
failure, normal wear and tear excepted. If the Developer fails to repair or replace a defective
Property 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
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reimburse the City fully for the cost of all Property 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 Property 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
Property of the repair or replacement of the Property Improvements and hereby consents to such
assessment and waives the right to a hearing or notice of hearing or any appeal thereon under
Minnesota Statutes, Chapter 429.
A. The required warranty period for all work relating to the public sewer and water shall
be two (2) years from the date of final written City acceptance of the work.
B. The required warranty period for all work relating to street construction, including the
5th Street turn lane, concrete curb and gutter, sidewalks and trails, materials, and
equipment shall be one (1) year from the date of final written acceptance of the work.
C. The required warranty period for sod, trees, and landscaping is two (2)
years from the date of final written City acceptance of the installation.
32. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the
terms of this Agreement, payment of special assessments, payment of the costs of all public
Property Improvements, and construction of all public Property 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 $439,246________. 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
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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 upon the Security 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 Property
Improvements are not completed at least 30 days prior to the expiration of the Security, the City
may also draw upon it. If the Security is drawn upon, the proceeds shall be used by the City to
cure the default.
33. REDUCTION OF SECURITY. Upon written request by the Developer and upon receipt
of proof satisfactory to the City Engineer that work has been completed in accordance with the
approved Plans and the terms of this Agreement and that all financial obligations to the City have
been satisfied, the City Engineer may approve reductions in the Security in the following
instances:
A. Upon completion of grading operations, including temporary site restoration. The
Developer must submit an as-built grading survey to the City that at a minimum
established the as-built grades at all lot corners and downstream drainage
conveyance systems and storm water ponds. Upon inspection of the site and
approval of the as-built survey by the City, 100 percent or $203,053_______, of
the Security associated with grading may be released. This Security reduction
does not include amounts related to erosion and sedimentation control.
B. Up to 75 percent of the Security associated with the itemization on Exhibit C may
be released upon completion of the following key milestones of the project as
determined by the City Engineer:
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1. Construction Categories 2 and 3: The amount of $54,244 _____ may be
released when all sanitary sewer and watermain utilities have been
installed, all testing and televising have 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 $67,988 ________ may
be released when all streets, sidewalks, and storm sewer has been
installed and tested, and has been found to be complete to the satisfaction
of the City Engineer including all corrective work for any identified punch
list items and including verification of storm sewer as-built inverts.
3. Construction Categories 6-10 and 14-17: The amount of $27,255 ______
may be released when all remaining Developer’s obligations under this
Agreement have been completed including: (1) iron monuments for lot
corners have been installed, if required; (2) all financial obligations to the
City are satisfied; (3) the required “record” plans in the form of the City
standards have been received and approved by the City; and (5) the public
Property Improvements are accepted by the City Engineer and the City
Council.
4. Construction Categories 11, 12, and 13: The amount of $27,659 _______
may be released when landscaping Property 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 Property 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
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satisfied; and (3) the warranty period has expired.
Twenty-five percent of the original Security amount associated with the
landscaping shall be retained by the City until: (1) all landscaping Property
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 sidewalks 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 Property
Improvements and other obligations of the Developer under this Agreement,
including fees or costs due to the City by the Developer. To that end and
notwithstanding anything herein to the contrary, all requests by the Developer for
a reduction or release of the Security shall be evaluated by the City in light of that
principle.
34. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash
requirements under this Agreement which must be paid to the City prior to recording the final plat:
Park Dedication: $10,215 Special Assessments Due: $0 Donation for Traffic Signal (Inwood and 5th St) $30,000 (estimated)
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City Engineering Administration Escrow: $10,000 TOTAL CASH REQUIREMENTS: $50,215
35. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand
delivered to the Developer, its employees or agents, or mailed to the Developer by certified mail
at the following address: Kwik Trip, Inc., Attn: Legal Department, 1626 Oak Street, La Crosse, WI
54603. 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.
36. EVIDENCE OF TITLE. The Developer shall furnish the City with evidence of fee
ownership of the property being platted by way of a title insurance policy dated not earlier than 30
days prior to the execution of the plat.
37. COMPLIANCE WITH LAWS. The Developer agrees to comply with all laws,
ordinances, regulations, and directives of the state of Minnesota and the City applicable to the
Property. This Agreement shall be construed according to the laws of the state of Minnesota.
38. SEVERABILITY. In the event that any provision of this Agreement shall be held invalid,
illegal, or unenforceable by any court of competent jurisdiction, such holding shall pertain only to
such section and shall not invalidate or render unenforceable any other provision of this
Agreement.
39. NON-WAIVER. Each right, power, or remedy conferred upon the City by this Agreement
is cumulative and in addition to every other right, power or remedy, express or implied, now or
hereafter arising, or available to the City at law or in equity, or under any other agreement. Each
and every right, power, and remedy herein set forth or otherwise so existing may be exercised
from time to time as often and in such order as may be deemed expedient by the City and shall
not be a waiver of the right to exercise at any time thereafter any other right, power, or remedy.
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If either party waives in writing any default or nonperformance by the other party, such waiver
shall be deemed to apply only to such event and shall not waive any other prior or subsequent
default.
40. COUNTERPARTS. This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be an original and shall constitute one and the same Agreement.
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CITY OF LAKE ELMO By: ____________ __________________ Mike Pearson Its: Mayor By: __________________ _____________ Julie Johnson Its: City Clerk
STATE OF MINNESOTA )
) ss. COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this ___ day of ________________, 2020___, by Mike Pearson and Julie Johnson, the Mayor and City Clerk, respectively, of the City of Lake Elmo, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council.
NOTARY PUBLIC
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KWIK TRIP, INC. (DEVELOPER)
By: ___________________________________
Its: ___________________________________
STATE OF WISCONSIN ) ) ss. COUNTY OF LA CROSSE)
The foregoing instrument was acknowledged before me this ___, day of _________________,
2020___, by _______________________, the _______________________of Kwik Trip, Inc. a Wisconsin corporation on behalf of the corporation.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
624782v2LA515-1
FEE OWNER CONSENT TO DEVELOPMENT AGREEMENT
RPS Legacy DeSoto, LLC, fee owner of all or part of the subject property, the development of which is governed by the foregoing Development Agreement, affirms and consents to the provisions thereof and agrees to be bound by the provisions as the same may apply to that portion of the subject property owned by it. Dated this day of , 20202 .
By: ________________________________
Its: ________________________________
STATE OF MINNESOTA ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of _____________, 20___ by _________________, the ______________ of RPSLegacyDeSoto, LLC, a Minnesota
limited liability company on behalf of the company.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651) 747-3901
A-1
534605v2 SJS LA515-55
624782v2LA515-1
EXHIBIT A TO DEVELOPMENT AGREEMENT Legal Description of Property Being Final Platted
Lot 1, Block 1, Inwood 6th Addition, according to the recorded plat thereof, Washington County,
Minnesota.
B-1
534605v2 SJS LA515-55
624782v2LA515-1
EXHIBIT B TO DEVELOPMENT AGREEMENT List of Plan Documents The following documents prepared by Carlson McCain constitute the Plans:
THOSE DOCUMENTS BY AS FOLLOWS: SHEET TITLE REVISION DATE
C1 of Title Sheet
C2 of Existing Conditions and Removals Plan
C3 of Site & Sign Plan
C4 of Site Plan (Keynote)
C5 of Grading, Drainage, & Erosion Control Plan
Utility Plan
Utility Plan (Storm Sewer)
C6 of Stormwater Pollution Prevention Plan
C7 of Details
L1-L3 of L3 Landscape Plan
Shrub Plan
Photometric Plan
SW1.0 SWPPP Existing Conditions
SW1.1
SWPPP Proposed Conditions
SW1.2 SWPPP Details
SW1.3 SWPPP Narrative
C-1
534605v2 SJS LA515-55
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EXHIBIT C TO DEVELOPMENT AGREEMENT Property Improvements Cost/Security Amount Estimate CONSTRUCTION CATEGORY COST 125 percent
1 Grading $162,442________ $203,053_________
2 Sanitary Sewer $NA________ $NA________
3 Watermain
$57,860________ $72,325________
4 Storm Sewer (includes pond structures and outfall pipes)
$13,635_______ $17,044________
5 Streets and Sidewalks $58,885_______ $73,606________
6 Trails $NA $NA
7 Surface Water Facilities $NA $NA
8 Street Lighting $NA $NA
9 Street and Traffic Signs $NA $NA
10 Private Utilities $NA $NA
11 Landscaping Improvements $29,503_______ $36,878_______
14 Monuments $600 $750
15 Erosion and Sedimentation Control $23,472______ $29,340______
17 Developer’s Record Drawings $5,000 $6,250
TOTALS $351,397_______ $439,246________
C-1
534605v2 SJS LA515-55
624782v2LA515-1
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:
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(reserved for recording information)
DEVELOPMEN
T AGREEMENT
(Public sewer and water)
Inwood 6th
Addition (Kwik
Trip)
THIS DEVELOPMENT
AGREEMENT is dated
______________, 20__, by
and between the CITY OF
LAKE ELMO, a Minnesota
municipal corporation (the
“City”) and RPS Legacy
Desoto LLC, a Minnesota
limited liability company
(the “Developer”).
1. REQUEST FOR PLAT
APPROVAL. The
Developer has asked the
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City to approve a plat for
Inwood 6th Addition
(referred to in this
Agreement as the
“Subdivision”). The
property being platted is
situated in the County of
Washington, State of
Minnesota, and is legally
described on Exhibit A.
2. CONDITIONS OF
PLAT APPROVAL. The
City hereby approves the
Subdivision on condition
that the Developer enter
into this Agreement, furnish
the security required by it,
and record the plat with the
County Recorder or
Registrar of Titles within
180 days after the City
Council approves the final
plat.
3. RIGHT TO
PROCEED. This
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Agreement is intended to
regulate the development
of the Property and the
construction therein of
certain public and private
improvements. The
Developer may not grade
or otherwise disturb the
earth, remove trees, or
construct public or private
improvements or any
buildings within the
Subdivision until all the
following conditions
precedent have been
satisfied:
A. the Developer has
executed and recorded with
Washington County all
drainage and utility
easements required for the
Subdivision by the City
Engineer and Public Works
Director in the City’s
standard form or the
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easements have been
dedicated to the City on the
plat;
B. this Agreement has been
executed by the Developer
and the City;
C. the required Security (as
hereinafter defined) have
been received by the City
from or on behalf of the
Developer;
D. final construction plans and
specifications have been
submitted by the Developer
and approved by the City
Engineer;
E. 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
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Escrow required by this
Agreement;
F. the Developer has paid any
outstanding assessments
and taxes for the property
or property being deeded to
the City;
G. the Developer has fulfilled
any park dedication
requirements as specified
under this Agreement;
H. 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;
I. the Developer has provided
the City with a certificate of
insurance required by this
Agreement;
J. the Developer or the
Developer’s engineer and
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the Developer’s
contractor(s) have initiated
and attended a
preconstruction meeting
with the City Engineer, and
City staff;
K. the final plat has been
recorded with Washington
County;
L. a title insurance policy has
been issued in the amount
of $100,000 in favor of the
City insuring the City’s
interest as they appear on
the plat; and
M. 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
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final plats of subsequent
phases of the development
if the Developer is not in
compliance with any term
of this Agreement and the
non-compliance has not
been remedied.
Development of
subsequent phases of the
development may not
proceed until development
agreements for such
phases are approved by
the City. Park dedication
charges and availability
charges for sewer and
water referred to in this
Agreement are not being
imposed on outlots that are
designated in the plat for
future subdivision into lots
and blocks, if any, in the
plat. Such charges will be
calculated and imposed
when these outlots, if any,
are platted into lots and
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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
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state or federal law or
agreed to in writing by the
City and the Developer.
Thereafter, notwithstanding
anything in this Agreement
to the contrary, to the full
extent permitted by state
law, the City may require
compliance with any
changes to the City's
Comprehensive Plan,
official controls, platting, or
dedication requirements
enacted after the date of
this Agreement.
7. DEVELOPMENT
PLANS. The Developer
agrees to develop the
Property in accordance with
the City approvals,
including the terms and
conditions of approval of
the final plat as detailed in
City Council Resolution No.
2019-XX, and to construct
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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
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Plans, the Developer shall
make or install at its sole
expense the following
public and private
improvements (collectively,
the “Subdivision
Improvements”):
A. Grading and erosion
control;
B. Sanitary sewer;
C. Water system
improvements;
D. Stormwater improvements
(storm sewer pipe, control
structures, ponds, BMPs,
etc.)
5th Street turn lane,
signage, sidewalk and
public right-of-way
improvements;
E. Underground private
utilities;
F. Landscaping;
G. Tree preservation and
reforestation; and
H. Monuments required by
Minnesota Statutes.
All improvements
shall be installed in
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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
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addition, the City may, at
the City's discretion and at
the Developer's expense,
have one or more City
inspectors or a soil
engineer inspect the
Developer’s work on a full
or part-time basis. The
Developer's engineer shall
provide for on-site project
management. The
Developer's engineer is
responsible for design
changes and contract
administration between the
Developer and the
Developer's contractor.
9. CITY
ADMINISTRATION AND
CONSTRUCTION
OBSERVATION. At the
time of the City’s approval
of the final plat for the
Subdivision, the Developer
shall submit to the City an
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amount to be escrowed by
the City for City
administration and
construction observation
costs in an amount
provided under paragraph
34 of this Agreement -
Summary of Cash
Requirements. Thereafter,
the Developer shall
reimburse the City each
month, within 30 days of
receiving an invoice, for all
administration and
construction observation
costs incurred by the City
during the construction of
the Subdivision
Improvements by the City’s
engineering, public works,
planning, and landscape
architecture staff and
consultants. After 30 days
of the invoice, the City may
draw upon the escrow and
stop the work on site until
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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
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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
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construction for compliance
with the Plans, the City
approvals, the City Code,
the City’s Engineering
Design and Construction
Standards Manual, and the
City’s Landscape and
Irrigation Standards. The
Developer will notify the
City at such times during
construction as the City
requires for inspection
purposes. Such inspection
is pursuant to the City’s
governmental authority,
and no agency or joint
venture relationship
between the City and the
Developer is thereby
created.
10. CONTRACTOR
S/SUBCONTRACTORS.
City Council members, City
employees, and City
Planning Commission
624782v2LA515-1
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, 2020. The Developer
may, however, request an
extension of time from the
City. If the City grants a
time extension, it shall be
conditioned upon updating
the Security posted by the
624782v2LA515-1
Developer to reflect cost
increases and amending
this Agreement to reflect
the extended completion
date.
12. MAINTENANC
E DURING
CONSTRUCTION. The
Developer shall be
responsible for all
maintenance of the
Subdivision Improvements
until the Subdivision
Improvements are
accepted by the City in
writing. The Developer is
also responsible to locate
all underground utilities
until the Subdivision is
accepted in writing by the
City. Warning signs shall
be placed by the Developer
when hazards develop in
streets to prevent the public
from traveling on same and
624782v2LA515-1
to direct attention to
detours. If and when
streets become
impassable, such streets
shall be barricaded and
closed by the Developer.
The Developer and
contractors must keep 5th
Street North open to traffic
at all times unless a right-
of-way obstruction permit is
obtained from the City. The
Developer shall be
responsible for keeping
streets within and outside
of the Subdivision clean
and clear of dirt and debris
that may spill, track, or
wash onto the street from
the Developer’s operations.
The Developer shall
contract for street cleaning
for streets within and
immediately adjacent to the
Subdivision. At a minimum,
scraping and sweeping
624782v2LA515-1
shall take place on a
weekly basis and on a daily
basis during heavy tracking
days.
13. LICENSE. The
Developer hereby grants
the City, its agents,
employees, officers, and
contractors a license to
enter the Property to
perform all work and
inspections deemed
appropriate by the City in
conjunction with the
development of the
Property and this
Agreement.
14. CONSTRUCTI
ON ACCESS AND
PARKING. Construction
traffic access and egress
for all work on the site
including grading, utility
construction, building
construction, and
624782v2LA515-1
Subdivision Improvements
is restricted to access the
Subdivision via 5th Street at
the approved new turn lane
and designated rock
construction entrance per
the approved erosion
control plans. No
construction traffic is
permitted on other adjacent
local streets or at any other
location along 5th Street
North.
All construction parking and
staging, including the
loading and unloading of
equipment and supplies
during the construction of
the site improvements and
buildings must be
completed interior to the
Subdivision and is not
allowed to occur within any
public right-of-way. The
Developer shall repair or
624782v2LA515-1
replace all street, curb and
boulevard damage caused
by the construction
activities at no cost to the
City and meeting City
standards and
specifications. The
Developer and contractors
shall be responsible for the
repair and restoration of
any damage to the street,
curb and boulevard caused
by the construction
activities. Such work shall
meet all City standards and
specifications..
15. CONSTRUCTI
ON SEQUENCE AND
COMPLIANCE. The City
will require the Developer
to construct the Subdivision
Improvements in a
sequence that will allow
progress and compliance
624782v2LA515-1
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
624782v2LA515-1
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 City inspect and
approve the erosion control
measures. The Developer
shall coordinate and install
erosion and sediment
control measures with the
various stages of
development. The City
may impose additional
erosion control
requirements at any stage
in development as deemed
624782v2LA515-1
necessary to maintain a
compliant site. The
Developer shall promptly
reseed all areas disturbed
for site improvements 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
624782v2LA515-1
failure of the City to do so
will not affect the
Developer's and City's
rights or obligations
hereunder. If the
Developer does not
reimburse the City for any
cost the City incurred for
such work within 10 days,
the City may draw down the
Security to pay any costs.
The City will not allow any
development, utility, or
street construction and the
City will not issue any
building unless the
Subdivision is in full
compliance with the
approved erosion control
plan.
If the City issues
building permits before the
acceptance of public
Subdivision Improvements,
the Developer assumes all
624782v2LA515-1
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
624782v2LA515-1
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, , and watermain,
and streets, including the
5th Street turn lane
improvements, shall be
installed in accordance with
the approved Plans, the
624782v2LA515-1
City approvals, the City
Code, and the City’s
Engineering Design and
Construction Standards
Manual. Curb and gutter,
bituminous streets including
base and wear course,
sidewalks, boulevards
graded, street signs
installed, and all restoration
work on the site shall be
completed in accordance
with the approved Plans.
Once the work is
completed, the Developer
or the Developer’s
representative shall submit
a written request to the City
asking for an inspection of
the initial improvements.
The City will then schedule
a walk-through to create a
punch list of outstanding
items to be completed.
Upon receipt of the written
punch list provided by the
624782v2LA515-1
City, the Developer must
complete the punch list
items and notify the City to
reinspect the
improvements.
19. LANDSCAPING
AND TREE
REPLACEMENT
IMPROVEMENTS.
A. The Developer agrees to
install landscaping in
accordance with the
approved Plans, the City
approvals, the City Code,
the City’s Engineering
Design and Construction
Standards Manual, and the
City’s Landscape and
Irrigation Standards. All
landscaping materials such
as trees, shrubs, grasses,
or other vegetation installed
by the Developer must be
warrantied and maintained
for a period of two years.
624782v2LA515-1
The two year warranty
period shall be deemed to
start once all required
landscaping identified as
responsibility of Developer
in the approved Plans has
received acceptance by the
City. The Developer
agrees to have the installer
of the landscaping
complete an inspection 30
days prior to the end of the
two year warranty period
and provide the City with a
written report identifying the
condition of all landscaping.
In the event any
landscaping installed by the
Developer is deemed to be
in poor condition or dead,
the Developer is to replace
the landscaping with like
kind materials or as
otherwise approved by the
City.
624782v2LA515-1
B. The Developer shall be
responsible for maintaining
regular watering, fertilizing,
and over-seeding
necessary to establish final
lawns and yards as
identified in the approved
Plans for outlots, public
rights-of-way, and any
disturbed areas outside the
Subdivision boundaries
according to a landscape
maintenance plan approved
by the City. The Developer
agrees to achieve
“substantial performance”
on all seeded or sodded
areas disturbed during the
construction of Subdivision
Improvements. For the
purpose of this Agreement
“substantial performance”
shall be defined for areas
seeded or sodded with a
turf or lawn mix as “square
foot turf areas with an
624782v2LA515-1
average blade height of
three inches free of eroded,
bare, or dead spots and
free from perennial weeds
or unwanted grasses with
no visible surface soil.” For
areas seeded with a native
grass or flower mix
“substantial performance”
shall be defined as “square
foot native grass or flower
areas with an average
height of eight inches free
of eroded, bare, or dead
spots and no visible surface
soil.”
20. SIGNAGE,
STREET LIGHTING,
AND OTHER UTILITIES.
The Developer agrees to
install street signs, traffic
and parking signs, and
pavement markings within
the Subdivision all in
624782v2LA515-1
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 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
624782v2LA515-1
public easements shall
become City property.
Prior to acceptance of the
public Subdivision
Improvements by the City,
the Developer must furnish
the City with a complete set
of reproducible "record"
plans and an electronic file
of the "record" plans in
accordance with the City’s
Engineering Design and
Construction Standards
Manual together with the
following affidavits:
- Developer/Developer Engineer’s Certificate
- Land Surveyor’s Certificate
certifying that all
construction has been
completed in accordance
with the terms of this
Agreement. All necessary
forms will be furnished by
the City. Upon receipt of
“record plans” and
624782v2LA515-1
affidavits, and upon review
and verification by the City
Engineer that the public
Subdivision Improvements
have been completed in
accordance with the terms
of this Agreement, the City
Engineer will accept the
completed public
Subdivision Improvements.
22. PARK
DEDICATION. The
Developer shall pay a cash
contribution of $10,215 in
satisfaction of the City's
park dedication
requirements. The amount
of the cash contribution
was calculated as follows:
2.27 acres (for Lot 1, Block
1) at $4,500 per acre.
23. SANITARY
SEWER AND WATER
UTILITY AVAILABILITY
CHARGES (SAC AND
624782v2LA515-1
WAC). The Developer
shall be responsible for the
payment of all sewer
availability charges (SAC)
and all water availability
charges (WAC) with
respect to the Subdivision
Improvements required by
the City and any state or
metropolitan government
agency.
The sewer
availability charge (SAC) in
the amount of $3,000.00
per REC shall be payable
and collected by the City at
the time the City issues a
building permit is issued for
the building.
The water
availability charge (WAC) in
the amount of $3,000.00
per REC shall payable and
collected by the City at the
time the City issues a
624782v2LA515-1
building permit is issued for
the building.
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 is issued for
the building.
24. BUILDING
PERMITS/CERTIFICATE
S OF OCCUPANCY[ 2].
A. The City will not issue a
Certificate of Occupancy for
any building building permit
on for any lot within the
Subdivision, or within a
624782v2LA515-1
completed phase of the
Subdivision in a City
preapproved phasing plan,
until such time that sanitary
sewer, water, and storm
sewer, and the 5th street
turn lane improvements are
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. Breach of the terms of this
624782v2LA515-1
Agreement by the
Developer, including
nonpayment of billings from
the City, shall be grounds
for denial of building
permits, certificates of
occupancy, and withholding
of other permits, inspection
or actions and the halting of
all work in the Subdivision.
C. If the City issues building
permits before 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.
624782v2LA515-1
D. No sewer and water
connection permits may be
issued until the streets
needed for access have
been paved with a
bituminous surface and the
utilities are tested and
approved by the City
Engineer.
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,
624782v2LA515-1
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
624782v2LA515-1
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,
624782v2LA515-1
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,
624782v2LA515-1
and in any event before any
penalty is attached, all
special assessments
referred to in this
Agreement. This is a
personal obligation of the
Developer and shall
continue in full force and
effect even if the Developer
sells one or more lots, the
entire Property, or any
portion of it.
F. The Developer shall pay in
full all bills submitted to it
by the City for obligations
incurred under this
Agreement within 30 days
after receipt. Bills not paid
within 30 days shall be
assessed a late fee per the
City adopted fee schedule.
Upon request, the City will
provide copies of detailed
invoices of the work
performed by the City and
its consultants.
624782v2LA515-1
26. SPECIAL
PROVISIONS. The
following special provisions
shall apply to the
Subdivision:
A. Implementation of the
recommendations and
requirements listed in the
August 6, 2019,
Engineering memorandum.
B. The Developer must obtain
a sign permit from the City
Building Official prior to
installation of any
subdivision identification
signs.
C. The final plat must shall
show a 10-foot-wide
drainage and utility
easement along all property
lines.
D. All easements as requested
by the City Engineer and
the Public Works
Department shall be
624782v2LA515-1
documented on the fFinal
pPlat before the execution
of the final plat by City
Officials.
E. Before recording the Final
Plat, the Developer shall
enter into a Developers
Agreement or Site Work
Agreement with the City.
This agreement shall be in
a form acceptable to the
City Attorney and shall
delineate who is
responsible for the design,
construction, and payment
of public improvements and
other site management and
operation considerations
including erosion control
and construction staging.
F. The City must Final Plat
shall be contingent upon
the City receiveving
separate drainage and
utility easements in the
624782v2LA515-1
City’s standard form of
easement agreement for
anyall off-site
Subdivisiondevelopment
improvements (beyond the
plat limits). Anyll off-site
easements, if required,
must be clearly shown on
the street, grading and
utility plans, with all
dimensions labeled. The
easements must be
obtained by the Developer
before the start of grading.
or construction.
G. The applicant must submit
and receive approval of a
building permit application;
grading, drainage,
landscaping, erosion
control, and other
applicable plans before
starting any construction
activity on Lot 1, Block 1
and on the future
624782v2LA515-1
development sites.
27. MISCELLANEOUS.
A. The Developer may not
assign this Agreement
without the written
permission of the City
Council. The Developer's
obligations hereunder shall
continue in full force and
effect even if the Developer
sells one or more lots, the
entire Property, or any
portion of it.
B. Retaining walls that require
a building permit shall be
constructed in accordance
with plans and
specifications prepared by
a professional engineer
licensed by the State of
Minnesota. Following
construction, a certification
signed by the design
engineer shall be filed with
624782v2LA515-1
the City Engineer
evidencing that the
retaining wall was
constructed in accordance
with the approved Plans.
All retaining walls identified
on the Plans or by special
conditions referred to in this
Agreement shall be
constructed before any
other building permit is
issued for a lot on which a
retaining wall is required to
be built.
C. Legal documents regarding
any covenants and
restrictions, if applicable,
shall be submitted to the
City prior to recording of the
final plat for review and
approval by the City
Attorney.
D. The Developer shall take
out and maintain or cause
to be taken out and
624782v2LA515-1
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
624782v2LA515-1
more. The City shall be
named as an additional
insured on the policy, and
the Developer shall file with
the City a certificate of
insurance evidencing
coverage prior to the City
signing the plat. The
certificate shall provide that
the City must be given 30
days’ advance written
notice of the cancellation of
the insurance.
E. Third parties shall have no
recourse against the City
under this Agreement.
F. If any portion, section,
subsection, sentence,
clause, paragraph, or
phrase of this Agreement is
for any reason held invalid,
such decision shall not
affect the validity of the
remaining portion of this
Agreement.
624782v2LA515-1
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
624782v2LA515-1
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
624782v2LA515-1
otherwise so existing may
be exercised from time to
time as often and in such
order as may be deemed
expedient by the City and
shall not be a waiver of the
right to exercise at any time
thereafter any other right,
power or remedy.
J. The Developer represents
to the City that the
Subdivision and the
Subdivision Improvements
comply or will comply with
all City, County,
metropolitan, state, and
federal laws and
regulations, including but
not limited to: subdivision
ordinances, zoning
ordinances, and
environmental regulations.
If the City determines that
the Subdivision is not in
compliance, the City may,
624782v2LA515-1
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.
28. EVENTS OF
DEFAULT. The following
shall be "Events of Default"
under this Agreement and
the term "Event of Default"
shall mean, whenever it is
used in this Agreement,
any one or more of the
following events:
A. Subject to unavoidable
delays, failure by the
Developer to commence
and complete construction
of the public Subdivision
Improvements pursuant to
the terms, conditions and
624782v2LA515-1
limitations of this
Agreement.
B. Failure by the Developer to
substantially observe or
perform any material
covenant, condition,
obligation or agreement on
its part to be observed or
performed under this
Agreement.
29. REMEDIES ON
DEFAULT. Whenever
any Event of Default
occurs, the City, subject to
any rights of third parties
agreed to by the City
pursuant to this Agreement,
or otherwise by written,
executed instrument of the
City, may take any one or
more of the following:
A. The City may suspend its
performance under the
Agreement until it receives
assurances from the
624782v2LA515-1
Developer, deemed
adequate by the City, that
Developer will cure its
default and continue its
performance under the
Agreement. Suspension of
performance includes the
right of the City to withhold
permits including, but not
limited to, building permits.
B. The City may initiate such
action, including legal or
administrative action, as is
necessary for the City to
secure performance of any
provision of this Agreement
or recover any amounts
due under this Agreement
from the Developer, or
immediately draw on the
Security, as set forth in this
Agreement.
30.
ENFORCEMENT BY
CITY; DAMAGES. The
624782v2LA515-1
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
624782v2LA515-1
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
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429.081.
The Developer also
acknowledges that its
failure to perform any or all
of the Developer’s
obligations under this
Agreement may result in
substantial damages to the
City; that in the event of
default by the Developer,
the City may commence
legal action to recover all
damages, losses and
expenses sustained by the
City; and that such
expenses may include, but
are not limited to, the
reasonable fees of legal
counsel employed with
respect to the enforcement
of this Agreement.
31. WARRANTY.
During the warranty period,
the Developer warrants that
all Subdivision
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Improvements will be free
from defects and that they
will continue to meet all
technical specifications and
standards. During the
warranty period, the
Developer agrees to repair
or replace any Subdivision
Improvement, or any
portion or element thereof,
which shows signs of
failure, normal wear and
tear excepted. If the
Developer fails to repair or
replace a defective
Subdivision Improvement
during the warranty period,
the City may repair or
replace the defective
portion and may use the
Security to reimburse itself
for such costs. The
Developer agrees to
reimburse the City fully for
the cost of all Subdivision
Improvement repair or
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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 Subdivision 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 Subdivision of the
repair or replacement of the
Subdivision Improvements
and hereby consents to
such assessment and
waives the right to a
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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
yearstwo years from the
date of final written City
acceptance of the work.
The required warranty
period for all work relating
to street construction,
including the 5th Street turn
lane, concrete curb and
gutter, sidewalks and trails,
materials and equipment
shall be subject to one (1)
year from the date of final
written acceptance of the
work.
B. The required warranty
period for sod, trees, and
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landscaping is two years
from the date of final written
City acceptance of the
installation.
32. SUMMARY OF
SECURITY
REQUIREMENTS. To
guarantee compliance with
the terms of this
Agreement, payment of
special assessments,
payment of the costs of all
public Subdivision
Improvements, and
construction of all public
Subdivision Improvements,
the Developer shall furnish
the City with an irrevocable
letter of credit or a cash
escrow or a combination of
a cash escrow and letter of
credit (the “Security") in the
amount of $________. The
bank originating the letter of
credit shall be determined
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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
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from an issuing bank
satisfactory to the City, the
City may draw under the
existing letter of credit.
This breakdown is
for historical reference; it is
not a restriction on the use
of the Security. The City
may draw down the
Security, without notice, for
any violation of the terms of
this Agreement or if the
Security is allowed to lapse
prior to the end of the
required term. If the
required public Subdivision
Improvements are not
completed at least 30 days
prior to the expiration of the
Security, the City may also
draw it down. If the
Security is drawn down, the
proceeds shall be used by
the City to cure the default.
33. REDUCTION OF
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SECURITY. Upon written
request by the Developer
and upon receipt of proof
satisfactory to the City
Engineer that work has
been completed in
accordance with the
approved Plans and the
terms of this Agreement
and that all financial
obligations to the City have
been satisfied, the City
Engineer may approve
reductions in the Security in
the following instances:
A. Upon completion of grading
operations, including
temporary site restoration.
The Developer must submit
an as-built grading survey
to the City that at a
minimum establishes the
as-built grades at all lot
corners and downstream
drainage conveyance
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systems and storm water
ponds. Upon inspection of
the site and approval of the
as-built survey by the City,
100 percent, or $________,
of the Security associated
with grading may be
released. This Security
reduction does not include
amounts related to erosion
and sedimentation control.
B. Up to 75 percent of the
Security associated with
the itemization on Exhibit
C may be released upon
completion of the following
key milestones of the
project as determined by
the City Engineer:
1. Construction Categories 2
and 3: The amount of
$_______may be released
when all sanitary sewer and
watermain utilities have
been installed, all testing
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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
$_______ may be released
when the all streets,
sidewalks, and storm sewer
storm sewer haves been
installed and tested, and
has been found to be
complete to the satisfaction
of the City Engineer
including all corrective work
for any identified punch list
items and including
verification of storm sewer
as-built inverts.
3. Construction Categories 6-
10 and 14-17: The amount
of $______ may be
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released when all
remaining Developer’s
obligations under this
Agreement have been
completed including: (1)
iron monuments for lot
corners have been
installed, if required; (2) all
financial obligations to the
City satisfied; (3) the
required "record" plans in
the form of the City
standards have been
received and approved by
the City; and (5) the public
Subdivision Improvements
are accepted by the City
Engineer and the City
Council.
4. Construction Categories
11, 12 and 13: The amount
of $________ may be
released when landscaping
Subdivision Improvements
have been installed to the
satisfaction of the City
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including all corrective work
for any identified punch list
items.
C. Twenty-five percent of the
original Security amount,
excluding grading and
landscaping improvements
shall be retained until: (1)
all Subdivision
Improvements have been
fully completed and
accepted by the City,
including all corrective work
and warranty punch list
items; (2) all financial
obligations to the City have
been satisfied; and (3) the
warranty period has
expired.
Twenty-five percent of the
original Security amount
associated with
landscaping shall be
retained by the City until:
(1) all landscaping
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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
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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 sidewalks
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
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or release of the Security
shall be evaluated by the
City in light of that principle.
34. SUMMARY OF
CASH
REQUIREMENTS. The
following is a summary of
the cash requirements
under this Agreement
which must be paid to the
City prior to recording the
final plat:
Park Dedication: $10,215
Special Assessments Due: $0
Donation for Traffic Signal (Inwood and 5th St) $30,000 (estimated)
City Engineering Administration Escrow: $10,000
TOTAL CASH REQUIREMENTS: $50,215
35. NOTICES.
Required notices to the
Developer shall be in
writing, and shall be either
hand delivered to the
Developer, its employees
624782v2LA515-1
or agents, or mailed to the
Developer by certified mail
at the following address:
RPS Legacy, 2935 Country
Drive, Suite 100, Little
Canada, MN 55117.
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.
36. EVIDENCE OF
TITLE. The Developer
shall furnish the City with
evidence of fee ownership
of the property being
platted by way of a title
insurance policy dated not
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earlier than 30 days prior to
the execution of the plat.
37. COMPLIANCE
WITH LAWS. The
Developer agrees to
comply with all laws,
ordinances, regulations,
and directives of the state
of Minnesota and the City
applicable to the
Subdivision. This
Agreement shall be
construed according to the
laws of the Minnesota.
38.
SEVERABILITY. In
the event that any provision
of this Agreement shall be
held invalid, illegal, or
unenforceable by any court
of competent jurisdiction,
such holding shall pertain
only to such section and
shall not invalidate or
render unenforceable any
624782v2LA515-1
other provision of this
Agreement.
39. NON-WAIVER.
Each right, power, or
remedy conferred upon the
City by this Agreement is
cumulative and in addition
to every other right, power
or remedy, express or
implied, now or hereafter
arising, or available to the
City at law or in equity, or
under any other agreement.
Each and every right,
power, and remedy herein
set forth or otherwise so
existing may be exercised
from time to time as often
and in such order as may
be deemed expedient by
the City and shall not be a
waiver of the right to
exercise at any time
thereafter any other right,
power, or remedy. If either
624782v2LA515-1
party waives in writing any
default or nonperformance
by the other party, such
waiver shall be deemed to
apply only to such event
and shall not waive any
other prior or subsequent
default.
40.
COUNTERPARTS.
This Agreement may be
executed simultaneously in
any number of
counterparts, each of which
shall be an original and
shall constitute one and the
same Agreement.
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CITY OF LAKE ELMO
By: ____________ __________________
Mike Pearson
Its: Mayor
By: __________________ _____________
Julie Johnson
Its: City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this ___ day of ________________, 20___, by Mike Pearson and Julie Johnson, the Mayor and City Clerk,
respectively, of the City of Lake Elmo, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the
authority granted by its City Council.
624782v2LA515-1
NOTARY PUBLIC
624782v2LA515-1
RPS LEGACY LLC (DEVELOPER)
By: ___________________________________
Its: ___________________________________
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ___, day of _________________, 20___, by _______________________, the _______________________of RPS LegacyTrident Development, LLC, a Minnesota limited liability
company on behalf of the company.
NOTARY PUBLIC
DRAFTED BY:
City of Lake Elmo
624782v2LA515-1
3800 Laverne Avenue North
Lake Elmo, MN 55042
(651) 747-3901
FEE OWNER CONSENT TO
DEVELOPMENT AGREEMENT
, fee owners of all or part of the subject property, the development of which is governed by the foregoing Development Agreement, affirm and consent to the provisions thereof and agree to be
bound by the provisions as the same may apply to that portion of the subject property owned by them.
Dated this day of , 2 .
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before
me this ____ day of _____________, 20___.
624782v2LA515-1
NOTARY PUBLIC
DRAFTED BY:
City of Lake Elmo
3800 Laverne Avenue North
Lake Elmo, MN 55042
(651) 747-3901
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 .
624782v2LA515-1
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before
me this ___ day of ________________, 20___, by _______________________________________________________________.
NOTARY PUBLIC
DRAFTED BY:
City of Lake Elmo
3800 Laverne Avenue North
Lake Elmo, MN 55042
(651) 747-3901
CONTRACT PURCHASER CONSENT TO
DEVELOPMENT AGREEMENT
, which/who has a contract purchaser's interest in all or
part of the Property, the development of which is governed by the foregoing Development Agreement, hereby affirms and consents to the provisions
thereof and agrees to be bound by the provisions as
624782v2LA515-1
the same may apply to that portion of the Property in
which there is a contract purchaser's interest.
Dated this ___ day of ________________, 20___.
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of _______________, 20___,
by ________________________________________________________________.
NOTARY PUBLIC
DRAFTED BY:
City of Lake Elmo
3800 Laverne Avenue North
Lake Elmo, MN 55042
(651) 747-3901
A-1
534605v2 SJS LA515-55
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EXHIBIT A TO
DEVELOPMENT AGREEMENT
Legal Description of Property Being Final Platted
Outlot O, Inwood Addition,
according to the recorded
plat thereof, Washington
County, Minnesota.
EXHIBIT B TO
DEVELOPMENT AGREEMENT
List of Plan Documents
The following documents prepared by Carlson McCain constitute the Plans:
THOSE DOCUMENTS BY AS FOLLOWS:
B-2
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B-3
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B-4
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B-5
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B-6
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B-7
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EXHIBIT C TO
DEVELOPMENT AGREEMENT
Subdivision Improvements Cost/Security Amount Estimate
CONSTRUCTION CATEGORY COST 125 percent
C-2
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C-3
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C-4
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C-5
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C-6
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C-7
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C-8
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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
534605v2 SJS LA515-55
624782v2LA515-1
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: