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HomeMy WebLinkAbout13.B.2. Developer's Agreement for the Extension of Hansen Avenue J 3. 8, ~ . CITY OF SHAKOPEE Memorandum TO: Mayor & City Council Mark McNeill, City Administrator FROM: Joe Swentek, Project Engineer SUBJECT: Approve a Developer's Agreement for the Extension of Hansen Avenue from Crossings Boulevard to County Road 18 DATE: August 5, 2009 INTRODUCTION: Attached is a Developer's Agreement between Shakopee Crossings Limited Partnership and the City of Shakopee for the construction of Hansen A venue from Crossings Boulevard to County Road 18, as prepared by the City Attorney. This agreement is for City Council consideration in moving forward with the extension of the roadway and improving access to the adjacent properties. BACKGROUND: The Developer submitted a request to complete the construction of Hansen A venue west of its existing location to County Road 18 in order to improve access to their property and facilitate future development. The Developer and the City entered into a Reimbursement Agreement (dated April 21, 2009) and agreed the Developer will construct the project utilizing their contractor and their financing. Per this Agreement, the Developer will reimburse the City for 100 percent of the costs incurred by the City for design of the improvements. For construction of the improvements, the Developer will pay the engineering fees as set forth in the City's annual fee schedule. ALTERNATIVES: 1. Approve the Developer's Agreement for the extension of Hansen A venue from Crossings Boulevard to County Road 18. 2. Do not approve the Developer's Agreement for the extension of Hansen Avenue from Crossings Boulevard to County Road 18. 3. Table for additional information. . RECOMMENDATION: Staff recommends Alternative No.1, as the Developer has agreed to construct Hansen A venue improvements as a private development project. This roadway will improve access and facilitate future development of the adjacent properties. ACTION REQUESTED: 1. Approve a Developer's Agreement with Shakopee Crossings Limited Partnership for the extension of Hansen A venue from Crossings Boulevard to County Road 18. Joe Swentek Project Engineer JS/pmp ENGR/2009 ENGINEERING PROJECTS/Hansen Avenue/WORD August 5, 2009 rr:'f ff%JK("\\pl'E \_~ ~'I iJ . \ i: i" I:....~ ~ 1JJj[1lfl i~ ,.~'l JL':' 'L~! COMlliONift?BID38IN:31857 CITY OF SHAKOPEE SCOTT COUNTY, MINNESOTA DEVELOPER'S AGREEMENT THIS AGREEMENT, made and entered into on August _,2009, by and between the City of Shakopee, a municipal corporation organized under the laws of the State of Minnesota ("City") and Shakopee Crossings Limited Partnership, a Wisconsin limited partnership ("Developer"). RECITALS (1 ) The Developer has submitted and the City has approved a request to complete the construction of Hansen Avenue west of its existing location to a limited access point along CSAH 21 ("Project"); and (2) The purpose of the Project is to facilitate access to property that is being developed by the Developer; and (3) The City Council has concluded that it is in the best interests of the City to allow the Developer to construct the Project pursuant to Minnesota Statutes Section 462.358, subdivision 2a; and (4) By approving and executing the Reimbursement Agreement dated April 21, 2009, the City and the Developer agreed that the Developer would reimburse the City for 100 percent of the costs incurred by the City in designing the Project; and (5) By executing this Agreement, the City and the Developer further agree that the Developer shall be responsible for constructing the Project, based upon the following terms and conditions; and 353499v3 SJS SH155-23 1 I NOW, THEREFORE, in consideration of the mutual covenants, promises and conditions contained in this Agreement, the City and the Developer agree as follows: 1. DEFINITIONS. The following terms as used in this agreement have the meanings stated: (A) "Site Grading Improvements" - the removal of existing improvements, including, but not limited to, removing curb and gutter, bituminous and concrete pavement, the furnishing and the installation of all temporary and permanent erosion control measures, bringing the site up to the proposed finished grade, per City approved plans and general and supplemental conditions received from the City, with materials deemed acceptable by the City Engineer, providing topsoil per City requirements, applying seed, mulch or sod per City/National Pollutant Discharge Elimination System (NPDES) requirements and providing a record "as-built" plan/drawing per the most recent edition of the City of Shakopee Design Criteria (as shown on the approved plans on file in the office of the City Engineer). (B) "Street Improvements" - subgrade preparation, right-of-way grading or berm construction, the furnishing and the installation of all class 5 aggregate base, concrete curb and gutter, permanent surfacing, signage, concrete sidewalks, bituminous trails and all other appurtenant facilities (as shown on the approved plans on file in the office of the City Engineer). (C) "Storm Sewer Improvements" - the furnishing and the installation of all storm sewer pipes, catch basins, ponds/basins, inlets and all other appurtenant storm facilities (as shown on the approved plans on file in the office of the City Engineer). (D) "Signage" - the furnishing and installation of all required temporary and permanent street signs and traffic signs (as shown on the approved plans on file in the office of the City Engineer). (E) "Street Lighting Improvements" - the furnishing and the installation of all street lighting including poles, arms, lamps, fixtures, conduit, underground wiring, transformers, pedestals and any other appurtenant street lighting facilities (as shown on the approved plans on file in the office of the City Engineer). (F) "Striping Improvements" - the placement of all required pavement messages, including arrows, lines and crosswalks (as shown on the approved plans on file in the office of the City Engineer). (G) Any reference to employees or officials of the City of Shakopee or the Shakopee Public Utilities Commission ("SPUC") in this Agreement includes the persons holding those positions or their designees. 2. PROJECT. The Project shall consist of the Developer constructing and installing at Developer's expense the following improvements according to the following terms and conditions and the General and Special Conditions on file with the City Engineer. Descriotion of the Proiect Improvements to be Installed bv the Develooer: (A) Site grading improvements; 353499v3 SIS SH155.23 2 I (B) Street improvements; (C) Storm sewer improvements; (D) Signage; (E) Striping improvements; and (F) Street lighting Improvements. ("Project Improvements"). 3. PROJECT IMPROVEMENTS. (A) Construction Plans and Specifications and Aooroval Thereof. Pursuant to the parties' Reimbursement Agreement, the City has retained WSB & Associates to design the Project. The Developer has agreed to reimburse the City for 100 percent of the Project costs incurred in designing the Project, including engineering and legal fees and any administrative expenses. Before commencement of any improvements, WSB & Associates, on behalf of the Developer must submit the appropriate grading plan, specifications, storm water management plan, erosion and sediment control plan and Storm Water Pollution Prevention Plan (SWPPP) to the City Engineer for the Project. Before any construction is commenced, the plans and specifications must be approved by the City Engineer and copies of all required permits must be provided to the City Engineer. After the City Engineer has approved the plans, any changes to the plans must be resubmitted to the City Engineer for approval. No material changes may be made without written approval from the City Engineer. The Developer must comply with any erosion and sediment control method required by the City for the prevention of damage to adjacent property, for prevention of damage to downstream storm sewer systems and for the control of surface water runoff. The Developer, the Developer's contractors and subcontractors must submit drawings to the City Engineer outlining all proposed haul routes for the import or export of soil, construction materials, construction equipment or construction debris, or any other purpose. All haul routes must be approved in writing by the City Engineer. The Developer must furnish to the City and to SPUC street and utility plans and specifications for approval. Before any construction is commenced, the plans and specifications must be approved by the City Engineer and the SPUC Utilities Manager, and copies of all required permits must be provided to the City Engineer and to SPUC. After the City Engineer and SPUC have approved the plans, no changes may be made without written approval from the appropriate authority. (B) Developer's Security. Simultaneously with submitting an executed copy of this Agreement to the City, the Developer must make a cash deposit with the City in an amount of $436,550.63, which is 125 percent of the total estimated Project costs as approved by the City Engineer. The City will be responsible for making the payments to the Developer's contractors. The terms by which the City will make payments to the Developer's contractors and the City may draw upon the cash deposit is set forth in a separate Cash Deposit Agreement which will be entered into 353499v3 SJS SH155-23 3 by the parties. (C) Right to Proceed with Construction. The Developer must not construct site grading improvements or otherwise disturb the earth or remove trees until all the following conditions have been satisfied: (1) the necessary security and applicable fees have been received by the City; and (2) all required grading plans, storm water management plans, erosion and sediment control plans, SWPPP's and speCifications have been approved by the City Engineer. The Developer must not construct street improvements, storm sewer improvements, striping improvements, street lighting improvements nor install signage until all the following conditions have been satisfied: (1) this Agreement has been fully executed by both parties and filed with the City Clerk; (2) the necessary security and all applicable fees have been received by the City; and (3) all required plans and specifications have been approved by the City Engineer and the SPUC Utilities Manager. (D) Timing of Performance. The Developer must complete all site grading improvements required for the Project prior to MONTH DATE. YEAR. The Developer must install all Project Improvements except for the wear course on the street by MONTH DATE. YEAR. The final wear course on the street must be installed between May 1st and September 1st of the first summer after the base course has been in place for one freeze-thaw cycle. The Developer may, however, request an extension of time from the City Engineer. If an extension is granted, it will be conditioned upon updating the security posted by the Developer to reflect cost increases and the extended completion date. Any extension of the date for final wear course placement must have the written approval of the City Engineer. (E) Completion of Street Liahtina Improvements. For purposes of releasing the cash deposit required by this Agreement, the City will consider the Street Lighting Improvements complete if the Developer has entered into an agreement with SPUC and paid any amount required by SPUC. (F) Construction Observation. The City will, at the Developer's expense, have one or more construction observers and a soil engineer observe the work on a full or part-time basis. The Developer must also provide a qualified engineer to perform site inspections on a daily basis. The engineer's qualifications must be submitted in writing to the City Engineer. The Developer must instruct its project engineer/inspector to respond to questions from the City observer(s) and to make periodic site visits to verify the construction is being performed to an acceptable level of quality in accordance with the engineer's design. The Developer or its engineer must schedule a preconstruction meeting at a mutually agreeable time with all parties concerned, including City staff, to review the program for the improvements. (G) Administrative and Technical Costs. The Developer agrees to pay the City engineering fees and construction observation fees for the project. Those fees are set forth in the City's annual fee schedule. All engineering, administration and construction observation fees must be paid to the City before the Developer begins 353499v3 SJS SH155-23 4 construction on any of the Project Improvements. (H) Sealcoatina Charae. The Developer agrees to pay the City for costs associated with the first bituminous seal coat on the street. The City's rate for sealcoating as set forth in its 2009 Fee Schedule is $1.11 per square yard. The total pavement area of the project is 3,224 square yards, which equates to a sealcoating charge of $3,578.64. The sealcoating charge must be paid by the Developer to the City before the Developer begins construction on any of the improvements. (I) Construction of the Proiect Improvements. (1) Construction. The Developer must furnish materials and equipment, construct and install all proposed improvements and conduct all operations in accordance with the most recent editions of the City's General Specifications and Standard Detail Plates for Street and Utility Construction, the City's Design Criteria, the City's Comprehensive Water Resource Management Plan, the City's SWPPP, City standards, City Policies, City ordinances, all general and supplemental conditions received from the City and the approved plans and specifications. For street lighting improvements, the Developer must furnish materials and equipment and construct and install the proposed improvements in accordance with the Street Lighting Agreement adopted jointly by the City and SPUC. (2) Easements. The Developer must grant to the City, at no cost to the City, permanent 10 foot wide drainage and utility easements on both sides of the Hansen Avenue right-of-way. (3) Insurance. The Developer will provide, or will cause each person with whom the Developer contracts for the construction of any the Project Improvements to provide, to the City the Contractor's Insurance Certificates as specified in Article S.G.C.5 of the Supplementary General Conditions of the General Specifications and Standard Detail Plates for Street & Utility Construction. No construction must commence until the City Clerk receives the insurance certificates with the City listed as additional insured and the certificates are approved by the City Attorney. (4) Gradina and Erosion and Sediment Control. Prior to any grading operations commencing and before any utility construction commencing, the Developer must identify, in writing to the City Engineer, a responsible party and schedule for erosion and sediment control inspection and maintenance, street cleaning, and weekly street sweeping. Prior to grading operations commencing and before any street and utility construction commencing, all erosion and sediment control measures must be installed, inspected and approved by the City Engineer. The City Engineer may impose additional erosion and sediment control requirements if they would be beneficial. 353499v3 SJS SH155-23 5 All areas disturbed by excavation and b~ckfilling operations must be reseeded forthwith after the completion of the work in that area. Except as otherwise provided in the City approved plans, seed must be certified seed to provide temporary ground cover as rapidly as possible. All seeded areas must be fertilized, mulched, and disc anchored as necessary for seed retention. The parties recognize that time is of the essence in erosion and sediment control. If the Developer does not comply with the requirements set forth in this Agreement, the City may take such action as it deems appropriate to control erosion and sediment transport at the Developer's expense. The City Engineer will endeavor to notify the Developer in advance of any proposed action, but failure to do so will not affect the Developer's and City's rights or obligations. Erosion and sediment control measures must be maintained until turf is established on all areas disturbed as a result of the construction. After the site has been stabilized to where, in the opinion of the City Engineer, there is no longer a need for erosion and sediment control, he or she will authorize the removal of the erosion and sediment control measures, Le. hay bales and silt fence. The Developer must properly remove and dispose of the erosion and sediment control measures. The Developer is responsible for ensuring that all contractors and other parties involved in the construction of the Project Improvements are notified of this responsibility. The Developer is responsible for regular erosion and sediment control inspection and maintenance or work as deemed necessary by the City Engineer until turf is established on all areas disturbed as a result of construction. If the Developer fails to perform the required clean up within 24 hours of receiving instructions and notice from the City Engineer, the City, without further notice, can perform the work and charge the associated cost to the Developer. If the Developer does not reimburse the City for any cost the City incurred for such work within 10 days of receipt of the invoice, the City may draw upon, without further notice, the cash deposit provided by the Developer to pay any costs incurred by the City. The Developer is responsible for weekly street sweeping of all streets within the subdivision and all streets adjacent to the Project if sediment is tracked off site. All street sweeping must be performed utilizing a pick-up sweeper. If the Developer fails to perform the required street sweeping within 24 hours of receiving instructions and notice from the City Engineer, he or she, without further notice, can perform the work and charge the associated cost to the Developer. If the Developer does not reimburse the City for any cost the City incurred for such work within 10 days of receipt of the invoice, the City may draw upon, without further notice, the cash deposit provided by the Developer to pay any costs incurred by the City. The Developer shall be responsible for weekly street sweeping until final acceptance by the City. The Developer is responsible for soil correction work required for the Project. The City makes no representation to the Developer concerning either the nature of suitability of soils or the cost of correcting any unsuitable soil conditions which may exist. In areas of the Project that have no fill material, a soils report from a qualified 353499v3 SJS SH155-23 6 soils engineer is not required unless the City Engineer determines from observation that there may be a soils problem. In areas of the Project with fill material that has been graded, a satisfactory soils report from a qualified soils engineer must be provided. (5) Signaae Requirements. All street signs and traffic signs required by the City as part of the street and utility plan approval must be furnished and installed by the Developer. (6) Proiect Testina Requirements. The Developer is responsible, at the Developer's sole cost, to provide testing to certify that the Project Improvements have been completed in compliance with approved plans and specifications. The personnel performing the testing must be certified by the Minnesota Department of Transportation. The City Engineer has the sole discretion to determine. if additional testing is necessary. The cost of additional testing is to be paid by the Developer. (7) Street and Storm Sewer Maintenance. The Developer is responsible for maintenance of the street, with the exception of snow plowing, until it is accepted by the City. Warning signs must be placed by the Developer when hazards develop to prevent the publiC from traveling on them and directing attention to detours. If the street becomes impassable, the City may order that it be barricaded and closed. The Developer must maintain a smooth roadway surface and provide proper surface drainage. The City will not be responsible for reshaping or damage to the street base, the street surfacing, the curb and gutter or utilities because of snow plowing operations. The provision of City snow plowing service does not constitute final acceptance of the streets by the City. The Developer is responsible for cleaning and maintenance of the storm sewer system (including, but not limited to, ponds, pipes, catch basins, culverts and swales) within the Project area. The Developer must follow all instructions it receives from the City Engineer concerning the cleaning and maintenance of the storm sewer system. The Developer's obligations under this paragraph end one year after the date of final acceptance by the City. (8) Record PlanslDrawings. Upon completion of the site grading improvements, the Developer must provide to the City Engineer a Record "As-Built" grading and erosion and sediment control plan/drawing in hard copy (mylar and paper) and electronic form as outlined in the most recent edition of the City Design Criteria. Upon completion of the street and utility construction, the Developer must provide to the City and to SPUC a Record "As-Built" street and utility plan/drawing in hard copy (mylar and paper) and electronic form as outlined in '. the most recent edition of the City of Shakopee Design Criteria. The Record "As-Built" plans/drawings referenced above must, at a minimum, include all items referenced in the most recent edition of the City Design Criteria and must also include any additional features as directed by the City Engineer. The Record "As-Built" plans/drawings referenced above must be approved by the City and SPUC prior to final acceptance of the Project improvements. 353499v3 SJS SH155-23 7 I (9) Faithful Performance of Construction Contracts and Bond. The Developer shall fully and faithfully comply with all terms of any and all contracts entered into by the Developer for the installation and construction of all Project Improvements. The Developer guarantees the workmanship and materials for a period of one year following the City's final acceptance of the Project Improvements. The Developer must also provide the Maintenance Bond required by Paragraph 4(E) of this Agreement. 4. GENERAL. (A) Violation of Provisions of Agreement. If the Developer violates any of the covenants in this Agreement to be performed by the Developer, the City has the option to commence an action for specific performance requiring the Developer to comply with the covenants in this Agreement. The Developer agrees that the City will be entitled to its administrative costs, legal costs and reasonable attorney's fees in connection with the action. (B) Hold Harmless. The Developer will defend, indemnify and hold harmless the City and its agents, officers and employees against any and all claims, damages, losses, and expenses, including attorney fees, arising out of or resulting from the Agreement or the enforcement of it, or in the construction of the Project, except as might arise as a result of the negligence of the City, its agents, officers, employees, its attorney or its engineer in connection with the handling of the cash deposit pursuant to the terms of this Agreement and the Cash Deposit Agreement. (C) Notices. Any notices permitted or required to be given or made pursuant to this Agreement must be delivered personally or mailed by United States Mail to the addresses set forth below by certified or registered mail. Notices, demand or payment must be deemed timely given or made when delivered personally or when deposited in the United States Mail in accordance with the above. Addresses of the parties are as follows: If to the City: City Administrator City Hall 129 Holmes Street South Shakopee, MN 55379 If to the Developer: Shakopee Crossings Limited Partnership 8170 Old Carriage Ct. N. #210 Shakopee, MN 55379 AUn: (D) Reductions/Release of Cash Deoosit. The City may release all or a portion of the cash deposited under Paragraph 3 in this Agreement to the Developer pursuant to the terms of the separate Cash Deposit Agreement entered into by the parties. Should the Developer fail or refuse to submit to a maintenance bond, the 353499v3 SJS SH155.23 8 City may retain some or all of the cash deposit as security for the one year written guarantee as provided in Paragraph 3 in this Agreement. (E) Maintenance Bond. The Developer is responsible to provide the City with a one year maintenance bond in the amount of 60 percent of the City approved total Project costs. The bond must run from the date of final acceptance of the Project Improvements. At the time of final acceptance, if the City determines the approved plans and specifications were not strictly adhered to or that the work was performed without adequate City inspections, the Developer agrees to increase the length of the maintenance bond up to a maximum of five years as determined by the City Engineer. (F) Incorcoration by Reference. The City of Shakopee General Specifications and Standard Detail Plates for Street and Utility Construction (including bonding provisions, the approved plans, addenda, change orders, special provisions, proposals, specifications and contract for the improvements furnished and let pursuant to this Agreement), the City of Shakopee Design Criteria, the City of Shakopee Comprehensive Water Resource Management Plan, City standards, City Policies, City ordinances, all general and supplemental conditions, City and SPUC approved plans and specifications and the Street Lighting Policy adopted jointly by the City of Shakopee and SPUC are made part of this Agreement by reference. (G) Assianment. The Developer may not assign this Agreement without the written permission of the City, which permission must not be unreasonably denied or delayed. No assignment will be effective unless the assignee assumes in writing all obligations of the Developer under this Agreement and the documents related to it. The assumption must be in a form reasonably acceptable to the City. (H) Severabilitv. If any provision of this Agreement is held invalid, illegal or unenforceable by any court of competent jurisdiction, such holding must pertain only to such section and will not invalidate or render unenforceable any other section or provision of this Agreement. (I) Non-Waiver. Each right, power or remedy conferred upon the City or the Developer by this Agreement is cumulative and in addition to every other right, power or remedy, express or implied, now or later arising, or available to the City or the Developer at law or in equity, or under any other agreement. Each and every right, power or remedy contained in this Agreement 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 or the Developer and does not constitute a waiver of the right to exercise at any time any other right, power or remedy. If either party waives in writing any default or nonperformance by the other party, the waiver is deemed to apply only to that event and does not waive any other prior or subsequent default. (J) Counteroarts. This Agreement may be executed simultaneously in any number of counterparts, each of which must be an original and must constitute one and the same Agreement. 353499v3 SJS SH155-23 9 IN WITNESS WHEREOF, The City and Developer have caused this Agreement to be duly executed on the day and year first above written. SHAKOPEE CROSSINGS CITY OF SHAKOPEE LIMITED PARTNERSHIP By Mayor By By City Administrator Its By City Clerk 353499v3 SJS SH155-23 10 ) 3. (S, ;; ./ August 5, 2009 ,f'''' {~TUr ~ ~r~1Q)1[JF 0K ~Jr,~Ult l.CL.Cd CITY OF SHAKOPEE SCOTT COUNTY, MINNESOTA DEVELOPER'S AGREEMENT THIS AGREEMENT, made and entered into on August _' 2009, by and between the City of Shakopee, a municipal corporation organized under the laws of the State of Minnesota ("City") and Shakopee Crossings Limited Partnership, a Wisconsin limited partnership ("Developer"). RECITALS (1 ) The Developer has submitted and the City has approved a request to complete the construction of Hansen Avenue west of its existing location to a limited access point along CSAH 21 ("Project"); and (2) The purpose of the Project is to facilitate access to property that is being developed by the Developer; and (3) The City Council has concluded that it is in the best interests of the City to allow the Developer to construct the Project pursuant to Minnesota Statutes Section 462.358, subdivision 2a; and (4) By approving and executing the Reimbursement Agreement dated April 21, 2009, the City and the Developer agreed that the Developer would reimburse the City for 100 percent of the costs incurred by the City in designing the Project; and (5) By executing this Agreement, the City and the Developer further agree that the Developer shall be responsible for constructing the Project, based upon the following terms and conditions; and 353499v3 SJS SH155-23 1 NOW, THEREFORE, in consideration of the mutual covenants, promises and conditions contained in this Agreement, the City and the Developer agree as follows: 1. DEFINITIONS. The following terms as used in this agreement have the meanings stated: (A) "Site Grading Improvements" - the removal of existing improvements, including, but not limited to, removing curb and gutter, bituminous and concrete pavement, the furnishing and the installation of all temporary and permanent erosion control measures, bringing the site up to the proposed finished grade, per City approved plans and general and supplemental conditions received from the City, with materials deemed acceptable by the City Engineer, providing topsoil per City requirements, applying seed, mulch or sod per City/National Pollutant Discharge Elimination System (NPDES) requirements and providing a record "as-built" plan/drawing per the most recent edition of the City of Shakopee Design Criteria (as shown on the approved plans on file in the office of the City Engineer). (B) "Street Improvements" - subgrade preparation, right-of-way grading or berm construction, the furnishing and the installation of all class 5 aggregate base, concrete curb and gutter, permanent surfacing, signage, concrete sidewalks, bituminous trails and all other appurtenant facilities (as shown on the approved plans on file in the office of the City Engineer). (C) "Storm Sewer Improvements" - the furnishing and the installation of all storm sewer pipes, catch basins, ponds/basins, inlets and all other appurtenant storm facilities (as shown on the approved plans on file in the office of the City Engineer). (D) "Signage" - the furnishing and installation of all required temporary and permanent street signs and traffic signs (as shown on the approved plans on file in the office of the City Engineer). (E) "Street Lighting Improvements" - the furnishing and the installation of all street lighting including poles, arms, lamps, fixtures, conduit, underground wiring, transformers, pedestals and any other appurtenant street lighting facilities (as shown on the approved plans on file in the office of the City Engineer). (F) "Striping Improvements" - the placement of all required pavement messages, including arrows, lines and crosswalks (as shown on the approved plans on file in the office of the City Engineer). (G) Any reference to employees or officials of the City of Shakopee or the Shakopee Public Utilities Commission ("SPUC") in this Agreement includes the persons holding those positions or their designees. 2. PROJECT. The Project shall consist of the Developer constructing and installing at Developer's expense the following improvements according to the following terms and conditions and the General and Special Conditions on file with the City Engineer. Description of the Proiect Improvements to be Installed by the Developer: (A) Site grading improvements; 353499v3 SJS SH155-23 2 (B) Street improvements; (C) Storm sewer improvements; (D) Signage; (E) Striping improvements; and (F) Street lighting Improvements. (" Project Improvements"). 3. PROJECT IMPROVEMENTS. (A) Construction Plans and Specifications and Approval Thereof. Pursuant to the parties' Reimbursement Agreement, the City has retained WSB & Associates to design the Project. The Developer has agreed to reimburse the City for 100 percent of the Project costs incurred in designing the Project, including engineering and legal fees and any administrative expenses. Before commencement of any improvements, WSB & Associates, on behalf of the Developer must submit the appropriate grading plan, specifications, storm water management plan, erosion and sediment control plan and Storm Water Pollution Prevention Plan (SWPPP) to the City Engineer for the Project. Before any construction is commenced, the plans and specifications must be approved by the City Engineer and copies of all required permits must be provided to the City Engineer. After the City Engineer has approved the plans, any changes to the plans must be resubmitted to the City Engineer for approval. No material changes may be made without written approval from the City Engineer. The Developer must comply with any erosion and sediment control method required by the City for the prevention of damage to adjacent property, for prevention of damage to downstream storm sewer systems and for the control of surface water runoff. The Developer, the Developer's contractors and subcontractors must submit drawings to the City Engineer outlining all proposed haul routes for the import or export of soil, construction materials, construction equipment or construction debris, or any other purpose. All haul routes must be approved in writing by the City Engineer. The Developer must furnish to the City and to SPUC street and utility plans and specifications for approval. Before any construction is commenced, the plans and specifications must be approved by the City Engineer and the SPUC Utilities Manager, and copies of all required permits must be provided to the City Engineer and to SPUC. After the City Engineer and SPUC have approved the plans, no changes may be made without written approval from the appropriate authority. (B) Developer's Security. Simultaneously with submitting an executed copy of this Agreement to the City, the Developer must make a cash deposit with the City in an amount of $436,550.63, which is 125 percent of the total estimated Project costs as approved by the City Engineer. The City will be responsible for making the payments to the Developer's contractors. The terms by which the City will make payments to the Developer's contractors and the City may draw upon the cash deposit is set forth in a separate Cash Deposit Agreement which will be entered into 353499v3 SJS SHl55-23 3 by the parties. (C) Right to Proceed with Construction. The Developer must not construct site grading improvements or otherwise disturb the earth or remove trees until all the following conditions have been satisfied: (1) the necessary security and applicable fees have been received by the City; and (2) all required grading plans, storm water management plans, erosion and sediment control plans, SWPPP's and specifications have been approved by the City Engineer. The Developer must not construct street improvements, storm sewer improvements, striping improvements, street lighting improvements nor install signage until all the following conditions have been satisfied: (1) this Agreement has been fully executed by both parties and filed with the City Clerk; (2) the necessary security and all applicable fees have been received by the City; and (3) all required plans and specifications have been approved by the City Engineer and the SPUC Utilities Manager. (D) Timing of Performance. The Developer must complete all site grading improvements required for the Project prior to October 1, 2009. The Developer must install all Project Improvements except for the wear course on the street by November 1, 2009. The final wear course on the street must be installed between May 1 st and September 1 st of the first summer after the base course has been in place for one freeze-thaw cycle. The Developer may, however, request an extension of time from the City Engineer. If an extension is granted, it will be conditioned upon updating the security posted by the Developer to reflect cost increases and the extended completion date. Any extension of the date for final wear course placement must have the written approval of the City Engineer. (E) Completion of Street Liqhting Improvements. For purposes of releasing the cash deposit required by this Agreement, the City will consider the Street Lighting Improvements complete if the Developer has entered into an agreement with SPUC and paid any amount required by SPUC. (F) Construction Observation. The City will, at the Developer's expense, have one or more construction observers and a soil engineer observe the work on a full or part-time basis. The Developer must also provide a qualified engineer to perform site inspections on a daily basis. The engineer's qualifications must be submitted in writing to the City Engineer. The Developer must instruct its project engineer/inspector to respond to questions from the City observer(s) and to make periodic site visits to verify the construction is being performed to an acceptable level of quality in accordance with the engineer's design. The Developer or its engineer must schedule a preconstruction meeting at a mutually agreeable time with all parties concerned, including City staff, to review the program for the improvements. (G) Administrative and Technical Costs. The Developer agrees to pay the City engineering fees and construction observation fees for the project. Those fees are set forth in the City's annual fee schedule. All engineering, administration and construction observation fees must be paid to the City before the Developer begins 353499v3 SJS SH155.23 4 construction on any of the Project Improvements. (H) Sea/coating Charae. The Developer agrees to pay the City for costs associated with the first bituminous seal coat on the street. The City's rate for sealcoating as set forth in its 2009 Fee Schedule is $1.11 per square yard. The total pavement area of the project is 3,224 square yards, which equates to a sealcoating charge of $3,578.64. The sealcoating charge must be paid by the Developer to the City before the Developer begins construction on any of the improvements. (I) Construction of the Proiect Improvements. (1 ) Construction. The Developer must furnish materials and equipment, construct and install all proposed improvements and conduct all operations in accordance with the most recent editions of the City's General Specifications and Standard Detail Plates for Street and Utility Construction, the City's Design Criteria, the City's Comprehensive Water Resource Management Plan, the City's SWPPP, City standards, City Policies, City ordinances, all general and supplemental conditions received from the City and the approved plans and specifications. For street lighting improvements, the Developer must furnish materials and equipment and construct and install the proposed improvements in accordance with the Street Lighting Agreement adopted jointly by the City and SPUC. (2) Easements. The Developer must grant to the City, at no cost to the City, permanent 10 foot wide drainage and utility easements on both sides of the Hansen Avenue right-of-way. (3) Insurance. The Developer will provide, or will cause each person with whom the Developer contracts for the construction of any the Project Improvements to provide, to the City the Contractor's Insurance Certificates as specified in Article S.G.C.5 of the Supplementary General Conditions of the General Specifications and Standard Detail Plates for Street & Utility Construction. No construction must commence until the City Clerk receives the insurance certificates with the City listed as additional insured and the certificates are approved by the City Attorney. (4) Grading and Erosion and Sediment Control. Prior to any grading operations commencing and before any utility construction commencing, the Developer must identify, in writing to the City Engineer, a responsible party and schedule for erosion and sediment control inspection and maintenance, street cleaning, and weekly street sweeping. Prior to grading operations commencing and before any street and utility construction commencing, all erosion and sediment control measures must be installed, inspected and approved by the City Engineer. The City Engineer may impose additional erosion and sediment control requirements if they would be beneficial. 353499v3 SJS SH155-23 5 All areas disturbed by excavation and backfilling operations must be reseeded forthwith after the completion of the work in that area. Except as otherwise provided in the City approved plans, seed must be certified seed to provide temporary ground cover as rapidly as possible. All seeded areas must be fertilized, mulched, and disc anchored as necessary for seed retention. The parties recognize that time is of the essence in erosion and sediment control. If the Developer does not comply with the requirements set forth in this Agreement, the City may take such action as it deems appropriate to control erosion and sediment transport at the Developer's expense. The City Engineer will endeavor to notify the Developer in advance of any proposed action, but failure to do so will not affect the Developer's and City's rights or obligations. Erosion and sediment control measures must be maintained until turf is established on all areas disturbed as a result of the construction. After the site has been stabilized to where, in the opinion of the City Engineer, there is no longer a need for erosion and sediment control, he or she will authorize the removal of the erosion and sediment control measures, Le. hay bales and silt fence. The Developer must properly remove and dispose of the erosion and sediment control measures. The Developer is responsible for ensuring that all contractors and other parties involved in the construction of the Project Improvements are notified of this responsibility. The Developer is responsible for regular erosion and sediment control inspection and maintenance or work as deemed necessary by the City Engineer until turf is established on all areas disturbed as a result of construction. If the Developer fails to perform the required clean up within 24 hours of receiving instructions and notice from the City Engineer, the City, without further notice, can perform the work and charge the associated cost to the Developer. If the Developer does not reimburse the City for any cost the City incurred for such work within 10 days of receipt of the invoice, the City may draw upon, without further notice, the cash deposit provided by the Developer to pay any costs incurred by the City. The Developer is responsible for weekly street sweeping of all streets within the subdivision and all streets adjacent to the Project if sediment is tracked off site. All street sweeping must be performed utilizing a pick-up sweeper. If the Developer fails to perform the required street sweeping within 24 hours of receiving instructions and notice from the City Engineer, he or she, without further notice, can perform the work and charge the associated cost to the Developer. If the Developer does not reimburse the City for any cost the City incurred for such work within 10 days of receipt of the invoice, the City may draw upon, without further notice, the cash deposit provided by the Developer to pay any costs incurred by the City. The Developer shall be responsible for weekly street sweeping until final acceptance by the City. The Developer is responsible for soil correction work required for the Project. The City makes no representation to the Developer concerning either the nature of suitability of soils or the cost of correcting any unsuitable soil conditions which may exist. In areas of the Project that have no fill material, a soils report from a qualified 353499v3 SJS SH155-23 6 soils engineer is not required unless the City Engineer determines from observation that there may be a soils problem. In areas of the Project with fill material that has been graded, a satisfactory soils report from a qualified soils engineer must be provided. (5) Signaae Reauirements. All street signs and traffic signs required by the City as part of the street and utility plan approval must be furnished and installed by the Developer. (6) Proiect Testing Requirements. The Developer is responsible, at the Developer's sole cost, to provide testing to certify that the Project Improvements have been completed in compliance with approved plans and specifications. The personnel performing the testing must be certified by the Minnesota Department of Transportation. The City Engineer has the sole discretion to determine if additional testing is necessary. The cost of additional testing is to be paid by the Developer. (7) Street and Storm Sewer Maintenance. The Developer is responsible for maintenance of the street, with the exception of snow plowing, until it is accepted by the City. Warning signs must be placed by the Developer when hazards develop to prevent the public from traveling on them and directing attention to detours. If the street becomes impassable, the City may order that it be barricaded and closed. The Developer must maintain a smooth roadway surface and provide proper surface drainage. The City will not be responsible for reshaping or damage to the street base, the street surfacing, the curb and gutter or utilities because of snow plowing operations. The provision of City snow plowing service does not constitute final acceptance of the streets by the City. The Developer is responsible for cleaning and maintenance of the storm sewer system (including, but not limited to, ponds, pipes, catch basins, culverts and swales) within the Project area. The Developer must follow all instructions it receives from the City Engineer concerning the cleaning and maintenance of the storm sewer system. The Developer's obligations under this paragraph end one year after the date of final acceptance by the City. (8) Record Plans/Drawings. Upon completion of the site grading improvements, the Developer must provide to the City Engineer a Record "As-Built" grading and erosion and sediment control plan/drawing in hard copy (mylar and paper) and electronic form as outlined in the most recent edition of the City Design Criteria. Upon completion of the street and utility construction, the Developer must provide to the City and to SPUC a Record "As-Built" street and utility plan/drawing in hard copy (mylar and paper) and electronic form as outlined in the most recent edition of the City of Shakopee Design Criteria. The Record "As-Built" plans/drawings referenced above must, at a minimum, include all items referenced in the most recent edition of the City Design Criteria and must also include any additional features as directed by the City Engineer. The Record "As-Built" plans/drawings referenced above must be approved by the City and SPUC prior to final acceptance of the Project improvements. 353499v3 SJS SH155-23 7 (9) Faithful Performance of Construction Contracts and Bond. The Developer shall fully and faithfully comply with all terms of any and all contracts entered into by the Developer for the installation and construction of all Project Improvements. The Developer guarantees the workmanship and materials for a period of one year foHowing the City's final acceptance of the Project Improvements. The Developer must also provide the Maintenance Bond required by Paragraph 4(E) of this Agreement. 4. GENERAL. (A) Violation of Provisions of Aareement. If the Developer violates any of the covenants in this Agreement to be performed by the Developer, the City has the option to commence an action for specific performance requiring the Developer to comply with the covenants in this Agreement. The Developer agrees that the City will be entitled to its administrative costs, legal costs and reasonable attorney's fees in connection with the action. (B) Hold Harmless. The Developer will defend, indemnify and hold harmless the City and its agents, officers and employees against any and all claims, damages, losses, and expenses, including attorney fees, arising out of or resulting from the Agreement or the enforcement of it, or in the construction of the Project, except as might arise as a result of the negligence of the City, its agents, officers, employees, its attorney or its engineer in connection with the handling of the cash deposit pursuant to the terms of this Agreement and the Cash Deposit Agreement. (C) Notices. Any notices permitted or required to be given or made pursuant to this Agreement must be delivered personally or mailed by United States Mail to the addresses set forth below by certified or registered mail. Notices, demand or payment must be deemed timely given or made when delivered personally or when deposited in the United States Mail in accordance with the above. Addresses of the parties are as follows: If to the City: City Administrator City Hall 129 Holmes Street South Shakopee, MN 55379 If to the Developer: Shakopee Crossings Limited Partnership 8170 Old Carriage Ct. N. #210 Shakopee, MN 55379 Attn: (D) Reductions/Release of Cash Deposit. The City may release all or a portion of the cash deposited under Paragraph 3 in this Agreement to the Developer pursuant to the terms of the separate Cash Deposit Agreement entered into by the parties. Should the Developer fail or refuse to submit to a maintenance bond, the 353499v3 SJS SH155-23 8 City may retain some or all of the cash deposit as security for the one year written guarantee as provided in Paragraph 3 in this Agreement. (E) Maintenance Bond. The Developer is responsible to provide the City with a one year maintenance bond in the amount of 60 percent of the City approved total Project costs. The bond must run from the date of final acceptance of the Project Improvements. At the time of final acceptance, if the City determines the approved plans and specifications were not strictly adhered to or that the work was performed without adequate City inspections, the Developer agrees to increase the length of the maintenance bond up to a maximum of five years as determined by the City Engineer. (F) Incorporation by Reference. The City of Shakopee General Specifications and Standard Detail Plates for Street and Utility Construction (including bonding provisions, the approved plans, addenda, change orders, special provisions, proposals, specifications and contract for the improvements furnished and let pursuant to this Agreement), the City of Shakopee Design Criteria, the City of Shakopee Comprehensive Water Resource Management Plan, City standards, City Policies, City ordinances, all general and supplemental conditions, City and SPUC approved plans and specifications and the Street Lighting Policy adopted jointly by the City of Shakopee and SPUC are made part of this Agreement by reference. (G) Assignment. The Developer may not assign this Agreement without the written permission of the City, which permission must not be unreasonably denied or delayed. No assignment will be effective unless the assignee assumes in writing all obligations of the Developer under this Agreement and the documents related to it. The assumption must be in a form reasonably acceptable to the City. (H) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable by any court of competent jurisdiction, such holding must pertain only to such section and will not invalidate or render unenforceable any other section or provision of this Agreement. (I) Non-Waiver. Each right, power or remedy conferred upon the City or the Developer by this Agreement is cumulative and in addition to every other right, power or remedy, express or implied, now or later arising, or available to the City or the Developer at law or in equity, or under any other agreement. Each and every right, power or remedy contained in this Agreement 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 or the Developer and does not constitute a waiver of the right to exercise at any time any other right, power or remedy. If either party waives in writing any default or nonperformance by the other party, the waiver is deemed to apply only to that event and does not waive any other prior or subsequent default. (J) Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which must be an original and must constitute one and the same Agreement. 353499v3 SJS SH155-23 9 IN WITNESS WHEREOF, The City and Developer have caused this Agreement to be duly executed on the day and year first above written. SHAKOPEE CROSSINGS CITY OF SHAKOPEE LIMITED PARTNERSHIP By Mayor By By City Administrator Its By City Clerk 353499v3 SJS SH155-23 10