HomeMy WebLinkAbout#10 - Lake Elmo Elementary Development Agreement
STAFF REPORT
DATE: 3/18/25
CONSENT
TO: Mayor and City Council
FROM: Nathan Fuerst, AICP, Consulting Planner
AGENDA ITEM: Lake Elmo Elementary Development Agreement
REVIEWED BY: Jason Stopa, Community Development Director,
Jack Griffin, Senior Engineering Project Manager
Sarah Sonsalla, City Attorney
CORE STRATEGIES:
☐ Vibrant, inclusive, connected community ☐ Efficient, reliable, innovative services
☐ Responsive, transparent, adaptive governance ☐ Balanced Finances now and future
☒ Managed Growth ☐ Resilient Infrastructure
BACKGROUND:
On February 4, 2025, the Lake Elmo City Council approved the final plat for 10th and Lake Elmo School
Addition, which is the Lake Elmo Elementary School project, through Resolution 2025-15. An executed
developer’s agreement is a condition of final plat approval and is required prior to recording the final plat
with Washington County.
ISSUE BEFORE COUNCIL:
The City Council is being asked to adopt Resolution 2025-031 approving the developer’s agreement for
Lake Elmo Elementary.
PROPOSAL DETAILS/ANALYSIS:
A condition of approval of the Lake Elmo Elementary final plat is that the Stillwater Area Public Schools
District enter into a Developer’s Agreement prior to the execution of the plat by City officials. The key
aspects of the agreement include the following components:
• That all public improvements to be completed by October 31, 2026.
• That the Developer provide a letter of credit in the amount to be determined once all
construction costs are reviewed related to the cost of the proposed improvements. Staff is
asking in the resolution for authority to add or modify that completed Exhibit C once it is
available.
• That the school district construct the necessary stormwater management and intersection
improvements as required through Resolution 2025-15, approving the final plat.
Upon execution of this Agreement, receipt of all fees and securities, recording of the final plat and the
completion of a Preconstruction meeting with the City, construction can commence.
FISCAL IMPACT:
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 and Sewer and Water Availability and Connection
Charges at the time of building permit application.
OPTIONS:
The City Council is being asked to consider the approval of the developer’s agreement and has the following
options:
1. Adopt Resolution 2025-031 approving the developer agreement for Lake Elmo
Elementary; 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 approve this item adopting Resolution 2025-031 on its consent agenda,
or by approving the developer’s agreement for 10th and Lake Elmo School Addition (Lake Elmo
Elementary) with the following motion:
“Move to adopt Resolution 2025-031 approving the developer’s agreement for 10th and Lake Elmo
School Addition”
ATTACHMENTS:
• Resolution 2025-031
• Lake Elmo Elementary Development Agreement
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CITY OF LAKE ELMO
WASHINGTON COUNTY
STATE OF MINNESOTA
RESOLUTION NO. 2025-031
A RESOLUTION APPROVING THE DEVELOPMENT AGREEMENT FOR LAKE ELMO
ELEMENTARY
WHEREAS, the City of Lake Elmo (the “City”) is a municipal corporation organized and
existing under the laws of the State of Minnesota; and
WHEREAS, Independent School District, No. 834, Stillwater Area Public Schools, a
Minnesota body corporate and politic (the “Applicant”) previously submitted an application to the
City for the 10th and Lake Elmo School Addition final plat; and
WHEREAS, the Lake Elmo City Council adopted Resolution No. 2025-015 on February
4, 2025 approving the final plat for 10th and Lake Elmo School Addition (the “Resolution”); and
WHEREAS, the conditions of approval of the final plat in the Resolution included a
requirement that the Applicant enter into a development agreement acceptable to the City Attorney
and approved by the City Council that delineates who is responsible for the design, construction,
and payment of the required improvements with financial guarantees therefore; and
NOW, THEREFORE, the City Council of the City of Lake Elmo hereby:
1. Approves the Development Agreement for 10th and Lake Elmo School Addition and
authorizes the Mayor and City Clerk to execute it. The City Attorney is authorized to
insert or modify improvement costs and Exhibits of the Development Agreement as
needed.
Passed and duly adopted this 18th day of March, 2025 by the City Council of the City of Lake
Elmo, Minnesota.
__________________________________
Charles Cadenhead, Mayor
ATTEST:
________________________________
Julie Johnson, City Clerk
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(reserved for recording information)
DEVELOPMENT AGREEMENT
(Public sewer and water)
10TH AND LAKE ELMO SCHOOL ADDITION
THIS DEVELOPMENT AGREEMENT is dated ______________, 2____, by and between the
CITY OF LAKE ELMO, a Minnesota municipal corporation (the “City”),and Independent School
District, No. 834, Stillwater Area Public Schools, a Minnesota body corporate and politic (the
“Developer”).
1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a
plat for 10th and Lake Elmo School 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 (the “Property”).
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 no later than 180 days after the
City Council approves the plat.
3. RIGHT TO PROCEED. This Agreement is intended to regulate the development of the
Property and the construction therein of certain public and private improvements. Unless
separate written approval has been granted by the City, within the plat or land to be platted, the
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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. this Agreement has been executed by the Developer and the City;
B. all issues set forth in the City Attorney’s plat opinion letter dated December 10, 2024
must be addressed to the satisfaction of the City;
C. final plat, construction plans and specifications, and final landscape plans have been
revised to comply with any conditions of approval then submitted by the Developer and
approved by the City;
D. the Developer has executed and recorded with Washington County all drainage and
utility easements required for the Subdivision by the City Engineer and Public Works
Director in the City’s standard form or the easements have been dedicated to the City on
the plat;
E. the Developer has executed and recorded with Washington County the Stormwater
Maintenance and Easement Agreement in the City’s standard form;
F. the required Security (as hereinafter defined) has been received by the City from or on
behalf of the Developer;
G. the Developer has paid the City for all legal, engineering, and administrative expenses
incurred by the City regarding the City approvals and has given the City the additional
City Engineering Administration Escrow required by this Agreement;
H. the Developer shall provide the City with a copy, and list the City as a beneficiary, in any
temporary construction and permanent easements from adjacent or nearby properties
necessary to construct the Subdivision Improvements, including all off-site public
improvements, off-site grading work, or storm sewer discharges;
I. the Developer has provided the City with a certificate of insurance required by this
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Agreement, paragraph 24 (E);
J. the Developer has received all necessary permits from the MPCA, MDH, DNR, MnDOT,
the applicable watershed, Washington County, and any other agency having jurisdiction
over the Subdivision;
K. the Developer has installed tree protection fencing or additional measures per approved
Tree Preservation Plan and the City has inspected and approved the protections;
L. the final plat has been recorded with Washington County; and
M. the Developer or the Developer’s engineer and the Developer’s contractor(s) have
initiated and attended a preconstruction meeting with the City Engineer and City staff;
and
N. the City has issued a written notice that all above conditions have been satisfied and that
the Developer may proceed.
4. CHANGES IN OFFICIAL CONTROLS. For five (5) years from the date of this
Agreement, no amendments to the City's Comprehensive Plan or official controls shall apply to
or affect the use, development density, lot size, lot layout or dedications of the approved final plat
unless required by state or federal law or agreed to in writing by the City and the Developer.
Thereafter, notwithstanding anything in this Agreement to the contrary, to the full extent permitted
by state law, the City may require compliance with any changes to the City's Comprehensive Plan,
official controls, platting, or dedication requirements enacted after the date of this Agreement.
5. DEVELOPMENT PLANS. The Developer agrees to develop the Property in
accordance with the City approvals, including the terms and conditions of approval of the final plat
as detailed in City Council Resolution No. 2025-15, 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
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Agreement. The Plans may not be modified by the Developer without the prior written approval
of the City.
6. IMPROVEMENTS. In developing the Subdivision in accordance with the Plans, the
Developer shall make or install at its sole expense the following public and private improvements
(collectively, the “Subdivision Improvements”):
A. Grading and erosion control;
B. Sanitary sewer;
C. Water system improvements;
D. Stormwater improvements (storm sewer pipe, control structures, ponds, BMPs,
etc.);
E. Internal site access roadways, parking and sidewalks;
F. Trails;
G. Underground private utilities;
H. Landscaping;
I. Street lighting and signage;
J. County roadway, turn lane and Intersection improvements (turn lanes, by-pass
lanes, traffic control, etc.);
K. Tree preservation and reforestation;
L. Wetland mitigation and buffers; and
M. Monuments required by Minnesota Statutes.
All improvements shall be installed in accordance with the approved Plans, the City
approvals, the City Code, the City’s Engineering Design and Construction Standards Manual, the
City’s Landscape Standards, and Stormwater Reuse Irrigation Design 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, and all applicable
City design 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
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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.
7. CITY ADMINISTRATION AND CONSTRUCTION OBSERVATION.
Prior to the execution of this Agreement, the Developer shall submit to the City an amount
to be escrowed by the City for costs incurred by the City for administration and construction
observation costs in an amount provided under paragraph 29 of this Agreement - Summary of
Security Requirements. Thereafter, the Developer shall reimburse the City each month, within
thirty (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. If the
Developer has not paid the invoices after thirty (30) days of the invoice date, 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 improvements. Services will be billed on an hourly basis.
The direction and review provided by the City through the inspection of the Subdivision
Improvements should not be considered a substitute for the Developer-required management of
the construction of the Subdivision Improvements. The Developer must require the Developer’s
contractor(s) to furnish the City with a schedule of proposed operations at least five (5) days prior
to the commencement of construction of each type of Subdivision Improvement. The City shall
inspect all Developer-installed Subdivision Improvements during and after construction for
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compliance with the Plans, the City approvals, the City Code, and the applicable City Standards.
The Developer will notify the City at such times during construction as the City requires for
inspection purposes. Such inspection is pursuant to the City’s governmental authority, and no
agency or joint venture relationship between the City and the Developer is thereby created.
8. CONTRACTORS/SUBCONTRACTORS. City Council members, City employees,
and City Planning Commission members, and corporations, partnerships, and other entities in
which such individuals have greater than a 25 percent ownership interest or in which they are an
officer or director may not act as contractors or subcontractors for the Subdivision Improvements
identified in paragraph 6 above.
9. TIME OF PERFORMANCE. The Developer shall install all required Subdivision
Improvements by October 31, 2026. The Developer may, however, request an extension of time
from the City. If the City grants an extension, it shall be conditioned upon updating the Security
posted by the Developer to reflect cost increases and amending this Agreement if necessary to
reflect the extended completion date. Final wear course placement outside of this time frame
must have the written approval of the City Engineer.
10. MAINTENANCE DURING CONSTRUCTION. The Developer shall be responsible for
all maintenance of the Subdivision Improvements until the Subdivision Improvements are
accepted by the City in writing. The Developer also is responsible to locate all underground
utilities until the Subdivision is accepted in writing by the City. Warning signs shall be placed by
the Developer when hazards develop in streets to prevent the public from traveling on same and
to direct attention to detours. If and when streets become impassable, such streets shall be
barricaded and closed by the Developer. The Developer shall maintain a smooth surface and
provide proper surface drainage to ensure that the access roads are passable for emergency
vehicles. The Developer shall be responsible for keeping streets within and around the
Subdivision clean and clear of dirt and debris that may spill, track, or wash onto the street from
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the Developer’s operations. The Developer shall contract for street cleaning for streets within and
immediately adjacent to the Subdivision. At a minimum, scraping and sweeping shall take place
on a weekly basis and on a daily basis during heavy tracking days.
11. LICENSE. The Developer hereby grants the City, its agents, employees, officers, and
contractors a license to enter the Property to perform all work and inspections deemed
appropriate by the City in conjunction with the development of the Property and this Agreement.
12. CONSTRUCTION ACCESS. Construction traffic access and egress for all building and
Subdivision Improvements is restricted to access the Subdivision at the approved designated rock
construction entrance(s) per the approved erosion control plans and as permitted by Washington
County. All construction parking and staging, including the loading and unloading of equipment and
supplies during the construction of the Subdivision Improvements must be completed interior to the
Subdivision and are not allowed to occur on any adjacent public street or public right-of-way,
including, but not limited to Lake Elmo Avenue (CSAH 17) or 10th Street North (CSAH 10). The
Developer and its contractors shall be responsible for the repair and restoration of any damage to
any street, curb, trail, sidewalk, and boulevard caused by the construction activities. All such repairs
shall be inspected by the City and meet all City standards and specifications.
The Developer must maintain adequate access for emergency vehicles that is acceptable
to the City in its sole discretion at all times during construction.
13. CONSTRUCTION SEQUENCE AND COMPLIANCE. The City will require the
Developer to construct the Subdivision Improvements in a sequence which will allow progress
and compliance points to be measured and evaluated. The Developer and the Developer’s
representatives are required to supervise and coordinate all construction activities for all
Subdivision Improvements and must notify the City in writing stating when the work is ready for
the inspection at each of the measurable points defined in the following paragraphs.
14. EROSION CONTROL. All construction regarding the Subdivision Improvements shall
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be completed in a manner designed to control erosion and in compliance with the approved plans
and specifications for the construction, 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, an erosion control plan must be implemented by the
Developer and inspected and approved by the City. Erosion and sediment control measures shall
be coordinated with the various stages of development. The City may impose additional erosion
control requirements at any stage in development as deemed necessary to maintain a compliant
site. All areas disturbed for site improvements must be reseeded by the Developer promptly after
the work in the area is complete unless construction of the next stage of the Subdivision
Improvements will begin in that area within seven (7) days. The parties recognize that time is of
the essence in controlling erosion.
If the Developer does not comply with the erosion control plan and schedule or
supplementary instructions and warnings received from the City, the City may take such action
as it deems appropriate to control erosion. If the Developer does not reimburse the City for any
cost the City incurred for such work within 10 business days, the City may draw down the Security
to pay any costs. No development, utility or street construction will be allowed, and no building
permits will be issued by the City unless the Subdivision is in full compliance with the approved
erosion control plan.
If the City issues building permits before the acceptance of Subdivision Improvements, the
Developer assumes all responsibility for erosion control compliance throughout the Subdivision
and the City may take such action as allowed by this Agreement against the Developer for any
noncompliant issue as stated above. Erosion control plans will be required in accordance with
the City’s building permit requirements, or as required by the City or City Engineer.
15. SITE GRADING. In order to construct the Subdivision Improvements and otherwise
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prepare the Property for development, it will be necessary for the Developer to grade the
Subdivision. All grading must be done in compliance with this Agreement and the approved
grading plans. Within thirty (30) days after completion of the grading, the Developer shall provide
the City with an “as built” grading plan and a certification prepared by the Developer’s engineer
as required in the City’s Engineering Design and Construction Standards Manual. Within (5) days
after completion of the grading, the Developer shall request an inspection of tree preservation
plan compliance from the City Planner. If additional tree plantings are required, the landscape
plan shall be modified and additional replacement trees planted as approved by the City prior to
the warranty period beginning.
16. ACCESS ROADS, PARKING AND UTILITY IMPROVEMENTS. All 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. 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 fully addressed or corrected by the Developer. Upon receipt
of the written punch list provided by the City, the Developer must complete all items on the punch
list and then notify the City to re-inspect the Improvements.
17. LANDSCAPING AND TREE REPLACEMENT IMPROVEMENTS.
A. Prior to installation of landscaping, the Developer shall notify the City Planner and a
pre-construction meeting shall be held with the City’s Landscape Architect to review
landscaping requirements and best practices and inspection schedules.
B. 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 years, with
the exception of trees planted on lots that have single-family homes, which are not
required to be warrantied. The two-year warranty period for landscaping materials
shall be deemed to start once all required landscaping identified as responsibility of
Developer in the approved Plans for the Subdivision has been field verified and
accepted by the City. The Developer agrees to have the installer of the landscaping
complete an inspection thirty (30) days before the end of the two-year warranty
period and provide the City with a written report identifying the condition of all
landscaping. In the event that any landscaping installed by the Developer is deemed
through this inspection to be in poor condition or dead, the Developer is to replace
the landscaping with like kind materials or as otherwise approved by the City.
C. The Developer shall be responsible for maintaining regular watering, fertilizing, and
over-seeding necessary to establish final lawns and yards as identified in the
approved Plans for outlots, public rights-of-way, and any disturbed areas outside the
Subdivision boundaries according to a landscape maintenance plan approved by the
City. The Developer agrees to achieve “substantial performance” on all seeded or
sodded lawns and yards disturbed during the construction of Subdivision
Improvements. For the purpose of this Agreement “substantial performance” shall
be defined for areas seeded or sodded with a turf or lawn mix as “square foot turf
areas with an average blade height of three inches free of eroded, bare, or dead
spots and free from perennial weeds or unwanted grasses with no visible surface
soil.” The City and the Developer understand and agree that the Property will be
used as a school and will have facilities such as athletic fields and playgrounds, and
that reasonable wear and tear of grasses at the Property will occur from student,
staff, and public use. Said reasonable wear and tear shall be permissible for
purposes of determining substantial performance of the seeded or sodded lawns
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and yards. For areas seeded with a native grass or flower mix “substantial
performance” shall be defined as “square foot native grass or flower areas with an
average height of eight inches free of eroded, bare, or dead spots and no visible
surface soil.”
18. SIGNAGE, STREET LIGHTING AND OTHER UTILITIES. The Developer agrees to
install street signs, traffic and parking signs, and pavement markings within the Subdivision all in
accordance with the approved Plans and the City Engineering Design Standards Manual. Street
and traffic sign details shall be submitted for approval by the City and County, as applicable, prior
to installation. In addition, the Developer shall be responsible for the cost and all coordination
work to extend private utilities and street lights within the Subdivision all in accordance with the
approved plans and right-of-way permits.
19. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction
required by this Agreement, the Subdivision Improvements lying within public easements shall
become City property. Before 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. Upon receipt of “record plans” and affidavits, and upon review and verification by the
City Engineer that the public Subdivision Improvements have been completed in accordance with
the terms of this Agreement, including all punch list items, the City will accept the completed public
Subdivision Improvements.
20. SANITARY SEWER AND WATER UTILITY AVAILABILITY CHARGES (SAC
AND WAC). The Developer shall be responsible for the payment of all sewer availability charges
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(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 Residential Equivalent
Charge (“REC”) and the water availability charge (WAC) in the amount of $3,000.00 per REC
shall be paid by the Developer to the City before issuing any building permits.
In addition, a sewer connection charge in the amount of $1,000.00 per REC, a
Metropolitan Council sewer availability charge in the amount of $2,485.00 per REC, and a water
connection charge in the amount of $1,000.00 per REC will be payable by the Developer and
collected by the City at the time the City issues a building permit for each building with the
development.
21. WETLAND MITIGATION. The Developer shall follow all of the rules and regulations
set forth in the Minnesota Wetland Conservation Act. The Developer shall complete wetland
mitigation/restoration in accordance with the approved Plans and in accordance with any
applicable watershed or agency permits. If the mitigation work is found to be incomplete or
restoration is unsuccessful, the City may draw down the Security at any time during the warranty
period to perform the work if the Developer fails to take corrective measures after being provided
notice by the City.
22. BUILDING PERMITS/CERTIFICATES OF OCCUPANCY.
A. The City will issue building permits for buildings provided that the final plat has been
recorded with Washington County and all required fees are paid by the Developer.
B. Before the City issues any building permits, the Developer shall install wetland buffer
monuments in accordance with the City’s zoning ordinance. The monument design
shall be approved by the City Planning Department.
C. The City will not schedule a final building inspection or issue a certificate of
occupancy (temporary, permanent or otherwise) for the building to be constructed
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until all Subdivision Improvements have been installed and have been installed by
the Developer and are accepted by the City in accordance with Section 19 of this
Agreement.
D. Breach of the terms of this Agreement by the Developer, including nonpayment of
billings from the City, shall be grounds for denial of building permits, certificates of
occupancy, and withholding of other permits, inspection or actions and the halting of
all work in the Property.
E. If the City issues a building permit prior to the acceptance of the Subdivision
Improvements by the City, the Developer assumes all liability and costs resulting in
delays in completion of the Subdivision Improvements and damage to the
Subdivision Improvements caused by the City, the Developer, the Developer’s
contractors, subcontractors, materialmen, employees, agents, or any third parties.
23. RESPONSIBILITY FOR COSTS.
A. In the event that the City receives claims from labor, materialmen, or others that work
required by this Agreement has been performed and the amounts due to them have
not been paid, and the laborers, materialmen, or others are seeking payment from
the City, the Developer hereby authorizes the City to commence an Interpleader
action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District
Courts, to draw upon the Security in an amount up to 125 percent of the claim(s) and
deposit the funds in compliance with the Rule, and upon such deposit, the Developer
shall release, discharge, and dismiss the City from any further proceedings as it
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
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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 before
the City will execute and release the final plat for recording.
C. To the extent permitted by law, the Developer shall hold the City and its officials,
employees, and agents harmless from claims made by itself and third parties for
damages sustained or costs incurred resulting from the City’s approval of the plat
and the development of the Subdivision. To the extent permitted by law, the
Developer shall indemnify and defend the City and its officials, employees, and
agents for all costs, damages, or expenses which the City may pay or incur in
consequence of such claims, including attorneys' fees.
D. The Developer shall reimburse the City for costs incurred in the enforcement of this
Agreement, including reasonable engineering and attorneys' fees.
E. The Developer shall pay, or cause to be paid when due, and in any event before any
penalty is attached, all special assessments referred to in this Agreement. This is a
personal obligation of the Developer and shall continue in full force and effect even
if the Developer sells one or more lots, the entire Property, or any portion of it.
F. The Developer shall pay in full all bills submitted to it by the City for obligations
incurred under this Agreement within thirty (30) days after receipt. Bills not paid
within thirty (30) days shall be assessed a late fee per the City adopted fee schedule.
Upon request, request, the City will provide copies of detailed invoices of the work
performed by the City and its consultants.
24. MISCELLANEOUS.
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A. The Developer must obtain a sign permit from the City Building Official before the
installation of any subdivision identification signs.
B. Prior to the construction of any subdivision identification signs or other internal signs
within the development, the Developer shall submit sign plans for review and obtain
a sign permit from the City.
C. 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.
D. Retaining walls that require a building permit shall be constructed in accordance with
plans and specifications prepared by a professional engineer licensed by the State
of Minnesota. Following construction, a certification signed by the design engineer
shall be filed with the City 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.
E. The Developer shall take out and maintain or cause to be taken out and maintained
until six months after the City has accepted the public Subdivision Improvements: 1)
commercial general liability insurance (CGL) covering bodily injury and property
damage; 2) automobile liability insurance (coverage must apply to owned autos, non-
owned autos, and hired autos); 3) workers’ compensation insurance as required by
state statute; and 4) employer’s liability insurance.
Limits for the commercial general liability insurance policy shall be not less than
$2,000,000 for each occurrence. The City shall be named as an additional insured
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on the commercial general liability insurance policy, and the Developer shall file with
the City a certificate of insurance evidencing coverage prior to the City signing the
plat. The certificate shall provide that the City must be given thirty (30) days’
advance written notice of the cancellation of the insurance.
F. Third parties shall have no recourse against the City under this Agreement.
G. 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.
H. 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.
I. This Agreement shall run with the land and will be recorded against the title to the
Property at the Developer’s expense. The Developer covenants with the City, its
successors and assigns, that the Developer has fee title to the Property being final
platted and has obtained consents to this Agreement, in the form attached hereto,
from all parties who have an interest in the Property, including, but not limited to, the
fee owner and the 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.
J. 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
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by the City and shall not be a waiver of the right to exercise at any time thereafter
any other right, power or remedy.
K. The Developer represents to the City that the Subdivision and the Subdivision
Improvements comply or will comply with all City, County, metropolitan, state, and
federal laws and regulations, including but not limited to: subdivision ordinances,
zoning ordinances, and environmental regulations. If the City determines that the
Subdivision is not in compliance, the City may, at its option, refuse to allow
construction or development work in the Subdivision until it is brought into
compliance. Upon the City’s demand, the Developer shall cease work until there is
compliance.
25. EVENTS OF DEFAULT. The following shall be "Events of Default" under this
Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement,
any one or more of the following events:
A. Subject to unavoidable delays, failure by the Developer to commence and complete
construction of the public Subdivision Improvements pursuant to the terms,
conditions, and limitations of this Agreement.
B. Failure by the Developer to substantially observe or perform any material covenant,
condition, obligation, or agreement on its part to be observed or performed under
this Agreement.
26. 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
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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.
27. ENFORCEMENT BY CITY; DAMAGES. The Developer acknowledges the right of
the City to enforce the terms of this Agreement against the Developer, by action for specific
performance or damages, or both, or by any other legally authorized means. In the event of a
default by the Developer as to construction or repair of any of the Subdivision Improvements or
any other work or undertaking required by this Agreement, the City may, at its option, perform the
work and the Developer shall promptly reimburse the City for any expense incurred by the City.
This Agreement is a license for the City to act, and it shall not be necessary for the City to seek
an order from any court for permission to enter the Subdivision for such purposes. If the City
does such work, the City may, in addition to its other remedies, levy special assessments against
the land within the Subdivision to recover the costs thereof. For this purpose, the Developer, for
itself and its successors and assigns, expressly waives any and all procedural and substantive
objections to the special assessments, including, but not limited to, hearing requirements, and
any claim that the assessments exceed the benefit to the land so assessed. The Developer, for
itself and its successors and assigns, also waives any appeal rights otherwise available pursuant
to Minnesota Statutes Section 429.081.
The Developer also acknowledges that its failure to perform any or all of the Developer’s
obligations under this Agreement may result in substantial damages to the City; that in the event
of default by the Developer, the City may commence legal action to recover all damages, losses
and expenses sustained by the City; and that such expenses may include, but are not limited to,
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the reasonable fees of legal counsel employed with respect to the enforcement of this Agreement.
28. WARRANTY. During the warranty period, the Developer warrants that all Subdivision
Improvements will be free from defects and that they will continue to meet all technical
specifications and standards. During the warranty period, the Developer agrees to repair or
replace any Subdivision Improvement, or any portion or element thereof, which shows signs of
failure, normal wear and tear excepted. If the Developer fails to repair or replace a defective
Subdivision Improvement during the warranty period, the City may repair or replace the defective
portion and may use the Security to reimburse itself for such costs. The Developer agrees to
reimburse the City fully for the cost of all Subdivision Improvement repair or replacement if the
cost thereof exceeds the remaining amount of the Security. Such reimbursement must be made
within forty-five (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 lot within the Subdivision of the repair or replacement of the Subdivision Improvements and
hereby consents to such assessment and waives the right to a hearing or notice of hearing or any
appeal thereon under Minnesota Statutes, Chapter 429.
A. The required warranty period for all work relating to the public sanitary 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 site improvements, including
pavements, concrete curb and gutter, sidewalks and trails, materials and equipment
shall be subject to one (1) year from the date of final written acceptance of the work.
C. The required warranty period for sod, trees, and landscaping is two (2) years from
the date of final written City acceptance of the installation as provided by LEC
105.12.480(i).
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29. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the
terms of this Agreement, payment of special assessments, payment of the costs of all Subdivision
Improvements, and construction of all 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 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 B. 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 forty-five (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 forty-five
(45) days with a substitute letter of credit from an issuing bank satisfactory to the City, the City
may draw under the existing letter of credit.
This breakdown is for historical reference; it is not a restriction on the use of the Security.
The City may draw down the Security, without notice for any violation of the terms of this
Agreement or if the Security is allowed to lapse prior to the end of the required term. If the required
Subdivision Improvements are not completed at least thirty (30) days prior to the expiration of the
Security, the City may also draw it down. If the Security is drawn down, the proceeds shall be
used by the City to cure the default.
30. 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:
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A. Up to 75 percent of the Security associated with the itemization on Exhibit B 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 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 all pavements, sidewalks, and storm sewer have been
installed, televised and tested, and have been found to be complete to the
satisfaction of the City Engineer including all corrective work for any identified
punch list items and including verification of storm sewer as-built inverts, but
not including the final wear course.
3. Construction Categories 6--10 and 15--17: The amount of
$______________________ may be released when the Subdivision
Improvements are accepted by the City Engineer and the City Council,
including all improvements in categories 6-10 and 15-17: (1) bituminous wear
course and sidewalks; (2) trails; (3) bio retention and infiltration facilities; (4)
street lighting; (5) street and traffic signs; (6) all private utilities; (7) iron
monuments for lot corners have been installed; (8) turf is established and all
erosion and sedimentation control has been removed; (9) County roadway,
turn lane and intersection improvements; (10) the required "record" plans in the
form of the City standards have been received and approved by the City; (11)
all financial obligations to the City have been satisfied.
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4. Construction Category 11: The amount of $____________________may be
released when all Landscaping Subdivision Improvements have been installed
to the satisfaction of the City including all corrective work for any identified
punch list items.
5. Construction Categories 12, 13 and 14: The amount of $________________
may be released when Developer Landscaping Subdivision Improvements,
Tree Preservation and Restoration work, and Wetland Mitigation and Buffers
have been completed and 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 for the sanitary sewer and
watermain utilities shall be retained until: (1) all sanitary sewer and watermain
utilities have been fully completed and accepted by the City, including all corrective
work and warranty punch list items; (2) all financial obligations to the City have
been satisfied; and (3) the warranty period has expired.
D. Twenty-five percent of the original Security amount for Construction Categories 4-
10 and 15-17 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.
E. Twenty-five percent of the original Security amount associated with Landscaping
shall be retained by the City until: (1) all landscaping Subdivision Improvements
have been fully completed and accepted by the City, including all corrective work
and warranty punch list items being completed by the Developer; (2) all financial
obligations to the City have been satisfied; and (3) the warranty period has expired.
H. In addition to the above project milestone based Security reductions, the
Developer may submit a written request and upon receipt of proof satisfactory to
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the City Engineer that work is progressing in accordance with the approved Plans
and the terms of this Agreement and that all financial obligations to the City have
been satisfied, the City Engineer may approve a one-time reduction in the Security
for Construction Categories 2-5 in an amount not to exceed 50 percent of the initial
Security amount. This one-time Security reduction does not apply to Categories 4-
5 if boulevard sidewalks or trails have not been installed.
31. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash
requirements under this Agreement that must be paid to the City before recording the final plat:
City Base Map Upgrading ($25.00 per REU): $______
City Engineering Administration Escrow: $______
TOTAL CASH REQUIREMENTS: $______
32. 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: Stillwater Area Public Schools, 1875 Greeley Street South, Stillwater,
MN 55082, Attn: Mark Drommerhausen and email address
drommerhausenm@stillwaterschools.org. Notices to the City shall be in writing and shall be
either hand-delivered to the City Administrator or mailed to the City by certified mail in care of the
City Administrator at the following address: Lake Elmo City Hall, 3880 Laverne Avenue N., Lake
Elmo, Minnesota 55042.
33. 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.
34. 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.
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35. 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.
36. NON-WAIVER. Each right, power, or remedy conferred upon the City by this Agreement
is cumulative and in addition to every other right, power, or remedy, express or implied, now, or
hereafter arising, or available to the City at law or in equity, or under any other agreement. Each
and every right, power, and remedy herein set forth or otherwise so existing may be exercised
from time to time as often and in such order as may be deemed expedient by the City and shall
not be a waiver of the right to exercise at any time thereafter any other right, power, or remedy.
If either party waives in writing any default or nonperformance by the other party, such waiver
shall be deemed to apply only to such event and shall not waive any other prior or subsequent
default.
37. 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: ____________ __________________ Charles Cadenhead 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 Charles Cadenhead and Julie Johnson, the Mayor and City Clerk, respectively, of the
City of Lake Elmo, a Minnesota municipal corporation, on behalf of the City and pursuant to the
authority granted by its City Council.
NOTARY PUBLIC
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Independent School District No. 834
By: ___________________________________
Board Chair
By: ___________________________________
Its: Board Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON)
The foregoing instrument was acknowledged before me this ___, day of _________________,
20___, by _______________________, the Board Chair and Board Clerk, respectively, of
Independent School District No. 834, Stillwater Area Public Schools, a Minnesota body corporate
and politic, on behalf of the school district.
NOTARY PUBLIC
DRAFTED BY:
City of Lake Elmo
3880 Laverne Avenue North
Lake Elmo, MN 55042
(651) 747- 3900
A-1
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EXHIBIT A TO
DEVELOPMENT AGREEMENT
Legal Description of the Property
Legal Description (Pre-Plat):
The Southeast 1/4 of the Southeast 1/4 of Section 26, Township 29, Range 21, Washington
County, Minnesota, and all that part of the Southwest 1/4 of the Southeast 1/4, lying Easterly of
the West 435.6 feet of the East 2006 feet of the South 1/2 of the Southeast 1/4 of said Section,
Washington County, Minnesota.
Platted Legal Description:
Lot 1, Block 1, 10TH AND LAKE ELMO SCHOOL ADDITION, according to the recorded plat
thereof, County of Washington, State of Minnesota.
Abstract Property
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EXHIBIT B TO
DEVELOPMENT AGREEMENT
Subdivision Improvements Cost/Security Amount Estimate
CONSTRUCTION CATEGORY COST 125 percent
1 Grading (included in grading
security)
NA NA
2 Sanitary Sewer
$ $
3 Watermain
$ $
4 Storm Sewer (includes pond
structures and outfall pipes)
$ $
5 Access Roads, Parking and
Sidewalks
$ $
6 Trails
$ $
7 Surface Water Facilities (ponds,
infiltration basins, other BMPs)
$ $
8 Street Lighting
$ $
9 Street and Traffic Signs
$ $
10 Private Utilities (electricity, natural
gas, telephone, and cable)
$ $
11 Landscaping Improvements
$ $
12 Tree Preservation and Restoration
$ $
13 Wetland Mitigation and Buffers
$ $
14 Monuments
$ $
15 Erosion and Sedimentation Control
$ $
16 County Roadway, Turn Lane and
Intersection (including traffic signals)
$ $
17 Developer’s Record Drawings
$ $
TOTALS
$
$
C-1
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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 Lake Elmo.
c) Be presented for payment at (Address of Bank) , on or before 4:00 p.m. on
November 30, 20___.
We hereby agree that all sight drafts drawn under and in conformity with the terms of this Letter of Credit
will be duly honored if drawn and presented for payment together with the documents required herein to
[INSERT NAME AND ADDRESS OF BANK AND CONTACT PERSON] if presented before _____p.m. on
or before the expiration date. Presentations may be made by certified mail, return receipt requested, or by
Federal Express or any other recognized courier company.
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., 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. 600.
We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly honored
upon presentation.
BY:
Its