HomeMy WebLinkAbout#23 - Crossroads East Site Improvement Agreement STAFF REPORT
DATE: 07/202021
REGULAR
TO: City Council
FROM: Ken Roberts, Planning Director
AGENDA ITEM: Crossroads East PUD – Site Improvement Agreement
REVIEWED BY: Jack Griffin, City Engineer Kristina Handt, City Administrator
Sarah Sonsalla, City Attorney
BACKGROUND: The applicants of the proposed Crossroads East office-warehouse development are requesting City-
approval to start grading and other preliminary site work before City approval of the preliminary PUD plans and preliminary plat. An executed site work agreement is a City requirement before a developer starts grading or installing other site improvements for a proposed development in Lake Elmo.
The applicant’s project engineer is currently updating the proposed project plans. The applicants hope to have the updated PUD plans and preliminary plat ready in time for staff review and for City Council consideration on August 4.
ISSUE BEFORE CITY COUNCIL: The City Council is being asked to adopt Resolution 2021 -084 approving the site improvement agreement
for proposed Crossroads East Office-warehouse development to be located at the intersection of Hudson Boulevard North and Lake Elmo Avenue. REVIEW/ANALYSIS: As noted above, the applicant’s for the proposed Crossroads East PUD are requesting City-approval to start
grading and other preliminary site work before City approval of the preliminary PUD plans and preliminary plat. They are making this request to allow them to complete as much grading and site work this fall as they have told City staff they are on a tight time schedule to complete their project.
The City may allow a developer to start grading and other site work subject to the City and the Developer entering into a site improvement agreement. This agreement is similar to a project Development Agreement as it outlines the rights and responsibilities for Developer and for the City.
The key aspects of the proposed agreement include the following components:
• Subject to unavoidable delays, that the Developer will complete all the required site improvements
by October 31, 2022.
• The City is willing to allow the Developer to start site grading and the construction of the Site
Improvements, provided the Developer conducts the grading and constructs the Site Improvements at the Developer’s sole risk.
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• All work completed by the Developer in advance of the City approving the plans and the development agreement for the Property is at the Developer’s sole risk.
• That the developer provide a letter of credit in an amount to be determined related to the cost of the proposed public improvements and landscaping.
• That the developer provide the City with a cash deposit of $50,000 for the engineering administration escrow.
• Upon approval of the final plat for the Property by the City Council, the City will require the Developer to enter into a development agreement with the City related to the Property that will include the construction of all public and private improvements on the Property.
• The Developer acknowledges that all grading and site improvement plans submitted to the City for review and to be used for construction of site improvements that are initiated prior to the receipt of
final plat approval by the City and prior to recording of the final plat, are subject to change, and thereby certain site improvements may require reconstruction, at developer’s sole costs, to comply with the final approved plat and final approved construction plans for the Development.
As I noted above, the applicant’s engineer is currently updating the construction plans for the project. City staff will need to review and approve the final construction plans for the project before the applicant’s contractor starts any site work. Upon execution of this Agreement, receipt of all fees and securities, City staff approval of the project plans, the recording of any required easements and the site improvement agreement and the completion of a preconstruction meeting with the City, the applicant may start the site grading and construction.
FISCAL IMPACT: The future financial impacts include maintenance of sanitary sewer mains, watermains and other public
infrastructure and other public financial responsibilities typically associated with a new development. The City will collect any necessary building permit fees and Sewer Accessibility Charges at the time of building permit application for each building as they develop.
OPTIONS: The City Council is being asked to consider the approval of the site improvement agreement and has the following options:
1) Adopt Resolution 2021-084 approving the site improvement agreement for proposed Crossroads East office-warehouse development; or
2) Direct Staff to amend the draft site improvement agreement to bring back to a future City Council meeting.
RECOMMENDATION: Staff recommends the City Council adopt Resolution 2021-084 approving the site improvement agreement for the proposed Crossroads East office-warehouse development to be located on the corner of Hudson Boulevard North and Lake Elmo Avenue North with the following motion:
“Move to adopt Resolution 2021-084 approving the site improvement agreement for the proposed
Crossroads East PUD office-warehouse development to be located at the intersection of Hudson
Boulevard North and Lake Elmo Avenue North”
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ATTACHMENTS:
• Resolution 2021-084
• Crossroads East PUD Site Improvement Agreement
CITY OF LAKE ELMO WASHINGTON COUNTY
STATE OF MINNESOTA RESOLUTION NO. 2021-084 A RESOLUTION APPROVING A SITE IMPROVEMENT AGREEMENT FOR THE
PROPOSED CROSSROADS EAST OFFICE-WAREHOUSE DEVELOPMENT TO BE
LOCATED AT THE INTERSECTION OF HUDSON BOULEARD AND LAKE ELMO AVENUE NORTH WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing under the laws of the State of Minnesota; and
WHEREAS, Mr. Dan Regan, representing Airlake Development Inc. (“applicant”) has previously submitted an application to the City of Lake Elmo (“City”) for approval of a preliminary planned unit development (PUD) and a preliminary plat for an office-warehouse development to be
located at the intersection of Hudson Boulevard North and Lake Elmo Avenue North; and WHEREAS, the Lake Elmo City Council is expected to consider the proposed preliminary PUD plans and preliminary plat for the proposed Development on August 4, 2021; and WHEREAS, the Applicant is requesting City approval to start grading and installing certain site improvements before the City Council approves the preliminary PUD plans and preliminary plat for the Development; and WHEREAS, the City requires an Applicant to enter into a Site Improvement Agreement with the City before starting any grading or the installation of site improvements; and
WHEREAS, the Applicant and the City have agreed to enter into such a contract and a copy of the proposed Site Improvement Agreement was submitted to the City Council for consideration at its July
20, 2021 meeting; NOW, THEREFORE, BE IT RESOLVED THAT the City Council does hereby approve the
Site Improvement Agreement for the proposed Crossroads East office-warehouse development to be located at the intersection of Hudson Boulevard North and Lake Elmo Avenue North and authorizes the Mayor and City Clerk to execute the document. Passed and duly adopted this 20th day of July, 2021 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)
SITE IMPROVEMENT AGREEMENT
Crossroads East PUD (Hudson Blvd and Lake Elmo Avenue)
THIS SITE IMPROVEMENT AGREEMENT (this “Agreement”) is dated
______________, 2021, by and between the City of Lake Elmo, a Minnesota municipal
corporation (the “City”) and Airlake Development, Inc., a Minnesota corporation and
Crossroads East, LLC, a Minnesota limited liability company (collectively the “Developer”).
1. REQUEST TO BEGIN GRADING AND CERTAIN SITE IMPROVEMENTS. The
Developer is the fee owner of the property legally described on the attached Exhibit A (the
“Property”). The Developer has submitted an application to the City for a PUD Preliminary Plan
and a Preliminary Plat for the Property that is currently under review by the City. The Developer
has requested that the City allow it to begin grading the Property and making certain site
improvements to the Property before the approval and recording of the final plat for the Property,
and before the construction plans have been reviewed and approved by the City for all required
development improvements. The site improvements are defined in the scope of work that is
attached as Exhibit B (the “Site Improvements”). The City is willing to allow the grading and the
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construction of the Site Improvements, provided the Developer conducts the grading and
constructs the Site Improvements at the Developer’s sole risk. All work completed by the
Developer in advance of the City approving the plans and the development agreement for the
Property is at the Developer’s sole risk.
2. CONDITIONS OF APPROVAL TO GRADE AND CONSTRUCT CERTAIN SITE
IMPROVEMENTS. The Site Improvements allowed by this Agreement shall be performed and
constructed in accordance with the terms of this Agreement, the City’s Code of Ordinances, the City’s
Engineering Design and Construction Standards Manual, and the Plans and Specifications (as
hereinafter defined). No modification to the City’s Engineering Design and Construction Standards
Manual, and the Plans and Specifications for the grading or the site improvements is allowed without
advance written approval of the City.
3. RIGHT TO PROCEED. The Developer may not grade or otherwise disturb the earth,
remove trees, or construct public or private site improvements or any buildings on the Property
until all the following conditions have been satisfied:
A. this Agreement has been executed by the Developer and the City;
B. the required Security (as hereinafter defined) have been received by the City from or on
behalf of the Developer;
C. the Plans and Specifications have been submitted by the Developer to depict the mass
grading work and site improvements to be constructed under this agreement and said
Plans and Specifications are determined to be in general compliance with City
requirements as determined by the City Engineer;
D. the Developer has provided the City with a letter of credit or cash equivalent that is
required by this Agreement;
E. the Developer has received all necessary permits from the MPCA, MDH, DNR, applicable
watershed, Washington County, and any other agency having jurisdiction over the
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Property;
F. the Developer has provided the City with a certificate of insurance required by this
Agreement;
G. 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;
H. the Developer has provided the City with executed easements as may be necessary for
right-of-way or drainage or utility purposes for any property that is not owned or controlled
by the Developer; and
I. the City has issued a written notice that all above conditions have been satisfied and that
the Developer may proceed.
4. PLANS. The Developer agrees to perform the grading and the Site Improvements, at
the Developer’s sole expense, in accordance with the plans and specifications on file with and
approved by the City, which have been prepared by a professional engineer licensed in the State
of Minnesota and that are listed on Exhibit C attached hereto (the “Plans and Specifications”). All
labor and work shall be done and performed in the best and most workmanlike manner and in strict
conformance with the Plans and Specifications for the improvements. No deviations from the Plans
and Specifications will be permitted unless approved in writing by the City Engineer. 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 of Site Improvements meet the approved City 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 and a soil engineer inspect the 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.
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5. CITY ADMINISTRATION AND CONSTRUCTION OBSERVATION. At the time of the
City’s execution of this Agreement, the Developer shall submit to the City an amount to be
escrowed by the City for City administration and construction observation costs in an amount
provided under paragraph 23 of this Agreement - Summary of Security Requirements. The
Developer shall reimburse the City each month within 30 days of receiving an invoice, following
submission of an invoice to the Developer, for all administration and construction observation
costs incurred by the City during the construction of the Improvements by the City’s engineering,
public works, planning, and landscape architecture staff and consultants. After 30 days of the
invoice, the City may draw upon the escrow and stop work on the 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 escrow or Security. Construction observation shall include, at the
discretion of the City, part- or full-time inspection of proposed public utilities and street
construction. The City will bill for the services on an hourly basis.
The direction and review provided by the City through the inspection of the Improvements
should not be considered a substitute for the Developer-required management of the construction
of the Site Improvements. The Developer must require the Developer’s contractor(s) to furnish
the City with a schedule of proposed operations at least five days prior to the commencement of
construction of each type of Site Improvement. The City shall inspect all Developer-installed Site
Improvements during and after construction for compliance with the Plans, the City approvals, the
City Code, the City’s Engineering Design and Construction Standards Manual, and the City’s
Landscape and Irrigation Standards. The Developer will notify the City at such times during
construction as the City requires for inspection purposes based on a schedule established for this
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purpose. 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.
6. 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 Improvements identified in
paragraph 5 above.
7. TIME OF PERFORMANCE. Subject to unavoidable delays including adverse weather
conditions, the Developer shall install all required Site Improvements by October 31, 2022. The
Developer may, however, request an extension of time from the City, and the City agrees to grant
a reasonable extension for delays. Such extension will not be the basis for placing the Developer
in default based on the schedule of improvements. If the City grants the time extension, it shall
be conditioned upon updating the Security or escrow posted by the Developer to reflect cost
increases, if any, and amending this Agreement to reflect the extended completion date.
8. MAINTENANCE DURING CONSTRUCTION. The Developer shall be responsible for
all maintenance of the Site Improvements until the Site Improvements are accepted by the City in
writing. The Developer also is responsible to perform gopher state one utility locates for all
underground utilities until the Improvements are accepted in writing by the City. Warning signs
shall be placed by the Developer when hazards develop in streets to prevent the public from
traveling on same and to direct attention to detours. If and when streets become impassable,
such streets shall be barricaded and closed by the Developer. The Developer and its contractors
must keep Hudson Boulevard North and Lake Elmo Avenue open to traffic at all times unless a
right-of-way obstruction permit is obtained from the City for Hudson Boulevard North or from
Washington County for Lake Elmo Avenue. The Developer shall be responsible for keeping
streets within and outside of the Property clean and clear of dirt and debris that may spill, track,
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or wash onto the street from the Developer’s operations. The Developer shall contract for street
cleaning for streets within and immediately adjacent to the Property. At a minimum, scraping and
sweeping shall take place on a weekly basis and on a daily basis during heavy tracking days.
9. LICENSE. The Developer hereby grants the City, its agents, employees, officials, 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.
10. CONSTRUCTION ACCESS AND PARKING. Construction traffic access and egress
for all work on the site is restricted to access via Hudson Boulevard North at the approved new
driveway location and designated rock construction entrance per the approved erosion control
plans. No construction traffic is permitted on other adjacent streets or at any other location along
Hudson Boulevard North.
All construction parking and staging, including the loading and unloading of equipment
and supplies during the construction of the Site Improvements must be completed interior to the
project site and is not allowed to occur on a public street or within any public right-of-way. The
Developer and contractors shall be responsible for the repair and restoration of any damage to
the street, curb, trail, sidewalk, and boulevard caused by the construction activities. Such work
shall meet all City standards and specifications.
11. CONSTRUCTION SEQUENCE AND COMPLIANCE. The City will require the
Developer to construct the Site Improvements in a sequence that will allow progress and
compliance points to be measured and evaluated. The Developer and the Developer’s
representatives are required to supervise and coordinate all construction activities for all Site
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.
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12. EROSION CONTROL. All construction regarding the Site Improvements shall be
completed in a manner designed to control erosion and in compliance with the Plans and
Specifications, 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 Property, the Developer must implement an erosion control plan and have the City inspect
and approve the erosion control measures. The Developer shall coordinate and install erosion
and sediment control measures with the various stages of the installation of Site Improvements.
The City may impose additional erosion control requirements at any stage in development as
deemed necessary to maintain a compliant site. The Developer shall promptly reseed all areas
disturbed for Site Improvements after the work in the area is complete unless construction of the
next stage of the Site Improvements will begin in that area within seven days. The parties
recognize that time is of the essence in controlling erosion.
If the Developer does not comply with the erosion control plan and schedule or
supplementary instructions received from the City, the City may take such action as it deems
appropriate to control erosion. The City will endeavor to notify the Developer in advance of any
proposed action, but failure of the City to do so will not affect the Developer’s and City’s rights or
obligations hereunder. If the Developer does not reimburse the City for any cost the City incurred
for such work within 30 days, the City may draw on the Security to pay any costs. The City will
not allow any development, utility, or street construction and the City will not issue any building
permits unless the Property is in full compliance with the approved erosion control plan.
13. SITE GRADING. In order to construct the Site Improvements and otherwise prepare
the Property for development, it will be necessary for the Developer to grade the Property. All
grading must be done in compliance with this Agreement and the grading plans on file with the
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City. Within 30 days after completion of the grading, the Developer shall provide the City with an
“as built” grading plan and a certification by a registered land surveyor or engineer as required in
the City’s Engineering Design and Construction Standards Manual.
14. OWNERSHIP OF IMPROVEMENTS. Upon completion of the Site Improvements
required by this Agreement and acceptance by the City, the Site Improvements lying within public
easements or right-of-way shall become City property. Prior to acceptance of the public Site
Improvements by the City, the Developer must furnish the City with a complete set of reproducible
"record" plans and an electronic file of the "record" plans in accordance with the City’s Engineering
Design and Construction Standards Manual together with the following affidavits:
- Developer/Developer Engineer’s Certificate - Land Surveyor’s Certificate
certifying that all construction has been completed in accordance with the terms of this
Agreement. All necessary forms will be furnished by the City. Upon receipt of “record plans” and
affidavits, and upon review and verification by the City Engineer that the public Site Improvements
have been completed in accordance with the terms of this Agreement, the City Engineer will
accept the completed public Site Improvements.
15. RESPONSIBILITY FOR COSTS. The Developer shall be responsible for paying all
costs related to the construction of the Site Improvements, and any corrective and warranty work
related to the Site Improvements, including, but not limited to, legal, planning, engineering, and
inspection expenses incurred in connection with the preparation of this Agreement, review of the
Plans and Specifications, and all costs and expenses incurred by the City in monitoring and
inspecting the Site Improvements.
In the event that the City receives claims from labor, materialmen, or others alleging that
work on public improvements 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
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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.
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 work being performed by the Developer pursuant to this Agreement unless caused by the
negligence, action, or inaction of the City. The Developer shall indemnify the City and its officials,
employees, and agents for all costs, damages, or expenses that the City may pay or incur in
consequence of such claims, including attorneys' fees.
The Developer shall reimburse the City for costs incurred in the enforcement of this
Agreement, including reasonable engineering and attorneys' fees. The Developer shall pay in
full all bills submitted to it by the City through the established escrow for obligations incurred
under this Agreement within 30 days after receipt. Bills not paid by the Developer within 30 days
shall be assessed a late fee per the City adopted fee schedule. Upon request, the City will
provide copies of detailed invoices of the work performed by the City and its consultants.
16. MISCELLANEOUS. A. The Developer may not assign this Agreement without the written permission of the
City Council. The Developer's obligations hereunder shall continue in full force and
effect even if the Developer sells the Property or any portion of it.
B. 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 Site Improvements, public
liability and property damage insurance covering personal injury, including death,
and claims for property damage which may arise out of Developer's work or the work
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of its subcontractors or by one directly or indirectly employed by any of them.
Limits for bodily injury and death shall be not less than $500,000 for one person and
$1,500,000 for each occurrence; limits for property damage shall be not less than
$200,000 for each occurrence; or a combination single limit policy of $1,500,000 or
more. The City shall be named as an additional insured on the policy, and the
Developer shall file with the City a certificate of insurance evidencing coverage prior
to the City signing this Agreement. The certificate shall provide that the City must
be given 30 days’ advance written notice of the cancellation of the insurance.
C. Third parties shall have no recourse against the City under this Agreement.
D. 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 portions of this Agreement.
E. 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.
F. This Agreement shall run with the land and may be recorded against the title to the
Property at the Developer’s expense. The Developer covenants with the City, its
successors and assigns, that it is the fee owner of the Property and that the
Developer will indemnify and hold the City harmless for any breach of the foregoing
covenant.
G. 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
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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.
H. The Developer represents to the City that the Property and the Site Improvements
comply or will comply with all City, County, metropolitan, state, and federal laws and
regulations. If the City determines that the Property is not in compliance, the City
may, at its option following written notice and a reasonable opportunity to cure,
refuse to allow construction work on the Property until it is brought into compliance.
“Reasonable” shall be defined for these purposes as the City’s estimate as to the
amount of time it would take the Developer to bring the Property into compliance.
Upon the City’s demand, the Developer shall cease work until there is compliance.
17. 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, and following written notice and an opportunity to
cure, failure by the Developer to commence and complete construction of the Site
Improvements pursuant to the terms, conditions, and limitations of this Agreement.
B. Failure by the Developer, following written notice and an opportunity to cure, to
substantially observe or perform any material covenant, condition, obligation, or
agreement on its part to be observed or performed under this Agreement.
18. 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 the Developer
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will cure its default and continue its performance under the Agreement. Suspension
of performance includes the right of the City to withhold 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.
19. 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 Improvements or any other work
or undertaking required by this Agreement, the City may, at its option and following written notice
and an opportunity to cure, perform the work and the Developer shall promptly reimburse the City
for any expense incurred by the City. This Agreement is a license for the City to act, and it shall
not be necessary for the City to seek an order from any court for permission to enter the Property
for such purposes. If the City does such work, the City may, in addition to its other remedies, levy
special assessments against the land within the Property to recover the costs thereof. For this
purpose, the Developer, for itself and its successors and assigns, expressly waives any and all
procedural and substantive objections to the special assessments, including, but not limited to,
hearing requirements, and any claim that the assessments exceed the benefit to the land so
assessed. The Developer, for itself and its successors and assigns, also waives any appeal rights
otherwise available pursuant to Minnesota Statutes Section 429.081.
The Developer also acknowledges that its failure to perform any or all of the Developer’s
obligations under this Agreement may result in substantial damages to the City; that in the event
of default by the Developer, the City may commence legal action to recover all damages, losses
and expenses sustained by the City; and that such expenses may include, but are not limited to,
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the reasonable fees of legal counsel employed with respect to the enforcement of this Agreement.
20. WARRANTY. During the warranty period, the Developer warrants that all Site
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 Site 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 Improvement
during the warranty period, the City may repair or replace the defective portion and may draw
upon the Security to reimburse itself for such costs. The Developer agrees to reimburse the City
fully for the cost of all Site Improvement repair or replacement if the cost thereof exceeds the
remaining amount of the Security. Such reimbursement must be made within 45 days of the date
upon which the City notifies the Developer of the cost due under this paragraph. The Developer
hereby agrees to permit the City to specially assess any unreimbursed costs against the Property
if the Developer fails to make required payments to the City. The Developer, on behalf of itself
and its successors and assigns, acknowledges the benefit to the Property of the repair or
replacement of the Improvements and hereby consents to such assessment and waives the right
to a hearing or notice of hearing or any appeal thereon under Minnesota Statutes, Chapter 429.
A. The required warranty period for all work relating to the public sewer and water shall
be two years from the date of final written City acceptance of the work.
B. The required warranty period for all work relating to public street construction,
including the improvements and turn lanes on Hudson Boulevard North and Lake
Elmo Avenue, the concrete curb and gutter, trails and sidewalks, materials and
equipment shall be one year from the date of final written City acceptance of the
work.
C. The required warranty period for sod, trees, and landscaping is two years from the
date of final written City acceptance of the installation.
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21. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the
terms of this Agreement, payment of special assessments, payment of the costs of all public
Improvements, and construction of all public Improvements, the Developer shall furnish the City
with an irrevocable letter of credit or cash escrow or a combination of a cash escrow and a 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 D. If at any time the City reasonably
determines that the bank issuing the letter of credit no longer satisfies the City’s requirements
regarding solvency and creditworthiness, the City shall notify the Developer and the Developer
shall provide to the City within 45 days a substitute for the letter of credit from another bank
meeting the City’s requirements. If the Developer fails to provide the City within 45 days with a
substitute letter of credit from an issuing bank satisfactory to the City, the City may draw under
the existing letter of credit.
This breakdown is for historical reference; it is not a restriction on the use of the Security.
The City may draw upon the Security, without notice, for any violation of the terms of this
Agreement or if the Security is allowed to lapse prior to the end of the required term. If the required
public Improvements are not completed at least 30 days prior to the expiration of the Security, the
City may also draw upon it. If the Security is drawn upon, the proceeds shall be used by the City
to cure the default.
Upon the execution of a development agreement by the City and the Developer, the
Developer shall have the option of having the City release the Security posted by it pursuant to
this Agreement and posting new Security or allowing the Security to be applied towards the
required security in the development agreement. The City reserves the right to require additional
security in the development agreement should it be deemed necessary by the City based on the
cost estimates of the improvements.
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22. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash
requirements under this Agreement which must be paid to the City prior to the execution of this
Agreement by the City:
City Engineering Administration Escrow: $50,000 TOTAL CASH REQUIREMENTS: $50,000
23. 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: Airlake Development, Inc., 800 LaSalle Avenue, Suite 1610,
Minneapolis, MN 55402, Attn: Dan O. Regan (dregan@launchproperties.com) and Crossroads
East, LLC -[address], Attn: David Johnson [email]. Notices also may be delivered to the
Developer via email to the above email addresses, provided that a hard copy of the notice is also
delivered by certified mail or hand delivery. 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 Kristina Handt (khandt@lakeelmo.org) at the following address: Lake Elmo City
Hall, 3880 Laverne Avenue N, Suite 100, Lake Elmo, Minnesota 55042. Notices may also be
delivered to the City via email to the above email address, provided that a hard copy of the notice
is also delivered by certified mail or hand delivery.
24. COMPLIANCE WITH LAWS. The Developer agrees to comply with all laws,
ordinances, regulations, and directives of the state of Minnesota and the City applicable to the
Property. This Agreement shall be construed according to the laws of the state of Minnesota.
25. 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.
16
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26. 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.
27. 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.
28. DEVELOPMENT AGREEMENT. Upon approval of the final plat for the Property by the
City Council, the Developer will be required to enter into a development agreement with the City
related to the Property that will include the construction of all public and private improvements on
the Property. Upon execution of the development agreement by the Developer and the City, this
Agreement shall be deemed to be null and void and the City shall sign a release of this Agreement
to be recorded in the property records.
29. FINAL CONSTRUCTION PLANS. Developer acknowledges that all grading and site
improvement plans submitted to the City for review and to be used for construction of site
improvements that are initiated prior to the receipt of final plat approval by the City and prior to
recording of the final plat, are subject to change, and thereby certain site improvements may
require reconstruction, at the Developer’s sole costs, to comply with the approved final plat and
final approved construction plans for the Development.
17
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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 ________________, 2021, 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 corporation and pursuant to the authority granted by its City Council.
NOTARY PUBLIC
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AIRLAKE DEVELOPMENT, INC.
By: ___________________________________
Its: ___________________________________
STATE OF MINNESOTA ) ) ss. COUNTY OF __________)
The foregoing instrument was acknowledged before me this ___, day of _________________,
2021, by _______________________the ____________ of Airlake Development, Inc., a Minnesota corporation on behalf of the corporation.
NOTARY PUBLIC
19
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CROSSROADS EAST, LLC
By: ___________________________________
Its: ___________________________________
STATE OF MINNESOTA )
) ss. COUNTY OF __________)
The foregoing instrument was acknowledged before me this ___, day of _________________, 2021, by _______________________the ____________ of Crossroads East, LLC, a Minnesota limited liability company on behalf of the company.
NOTARY PUBLIC
DRAFTED BY: City of Lake Elmo 3880 Laverne Avenue North, Suite 100 Lake Elmo, MN 55042 (651) 747-3901
A-1 638367v2LA515-1 V3 LA515-93-732224.v5
EXHIBIT A TO SITE IMPROVEMENT AGREEMENT Legal Description of Property Being Improved
That part of the Southwest Quarter of the Southwest Quarter of Section 36, Township 29, Range
21, County of Washington, State of Minnesota lying Northerly of the South 219.50 feet thereof
and also lying Northeasterly of the Minnesota Department of Transportation Right of Way.
PIN 36.029.21.33.0001
B-1 v3 LA515-93-732224.v2 LA515-93-732224.v5
EXHIBIT B TO SITE IMPROVEMENT AGREEMENT
Scope of Work of Site Improvements
[to be added]
B-2 v3 LA515-93-732224.v2 LA515-93-732224.v5
EXHIBIT C TO SITE IMPROVEMENT AGREEMENT
List of Plan Documents The following documents prepared by Kimley-Horn constitute the Project Plans:
SHEET TITLE REVISION DATE
C000 & C100 Cover Sheet & General Notes July 16, 2021
C200 thru C205 Existing Site Plan July 16, 2021
C206, C207, C208, C301 & C302 Site Demolition Plan July 16, 2021
C400 & C401 Site Plan Layout July 16, 2021
C500 thru C504 Site Grading Plan July 16, 2021
C600 & C601 Site Utilities Plan July 16, 2021
C206, C301 & C302 Erosion Control Plan July 16, 2021
C402 thru C409 Civil Details Hudson Blvd July 16, 2021
C602 & C603 Civil Details Watermain & Profile July 16, 2021
C604 & C605 Civil Details Sanitary Plan & Profile
July 16, 2021
C700 thru C703 Civil Details Traffic Controls July 16, 2021
C704 thru C709 Civil Details Signing & Striping July 16, 2021
C800 thru C806 Civil Details Cross Sections July 16, 2021
L100 & L102 Landscape Plans July 16, 2021
L103 thru L106 Landscape Details July 16, 2021
n/a
n/a
n/a
n/a
n/a
C-1 638367v2LA515-1 V3 LA515-93-732224.v5
EXHIBIT D TO SITE IMPROVEMENT AGREEMENT Improvements Cost/Security Amount Estimate CONSTRUCTION CATEGORY COST 125 percent
1 Grading $ _______ $ ________
2 Sanitary Sewer $ ______ $ ________
3 Watermain
$ _______ $ ________
4 Storm Sewer (includes pond structures and outfall pipes)
$ _______ $ ________
5 Street and Trail Cut at Entrances $ ______ $ _______
6 Trails $___________ $_____________
7 Surface Water Facilities (ponds, infiltration basins, other BMPs)
$____________ $____________
8 Street Lighting NA NA
9 Street and Traffic Signs NA NA
10 Private Utilities NA NA
11 Landscaping Improvements $ ______ $ _______
14 Monuments $ _____ $ _______
15 Erosion and Sedimentation Control
$ ______ $ _________
17 Developer’s Record Drawings $ _____ $ _________
TOTALS $ _______ $ _________
[Need to define public vs. private costs?]
LA515-93-732224.v5
FORM OF IRREVOCABLE LETTER OF CREDIT
No.__________________
Date: ________________
TO: City of Lake Elmo
Dear Sir or Madam:
We hereby issue, for the account of (Name of Developer) and in your favor, our Irrevocable Letter of Credit in the amount of $___________ available to you by your draft drawn on sight
on the undersigned bank. The draft must:
a) Bear the clause, "Drawn under Letter of Credit No.____________, dated ______________, 20___, of (Name of Bank)" ;
b) Be signed by the Mayor or City Administrator of the City of Lake Elmo. c) Be presented for payment at (Address of Bank) , on or before 4:00 p.m. on
November 30, 20___. This Letter of Credit shall automatically renew for successive one-year terms unless, at least forty-five (45) days prior to the next annual renewal date (which shall be November 30 of each year), the Bank delivers written notice to the Lake Elmo City Administrator that it intends to modify the terms of, or cancel, this Letter of Credit. Written notice is effective if sent by certified mail, postage prepaid, and deposited in the U.S. Mail,
at least forty-five (45) days prior to the next annual renewal date addressed as follows: City Administrator, City Hall, 3880 Laverne Ave. N., Suite 100, Lake Elmo Minnesota 55042 and is actually received by the City Administrator at least thirty (30) days prior to the renewal date. This Letter of Credit sets forth in full our understanding which shall not in any way be modified, amended, amplified, or limited by reference to any document, instrument, or agreement, whether or not referred to
herein. This Letter of Credit is not assignable. This is not a Notation Letter of Credit. More than one draw may be made under this Letter of Credit.
This Letter of Credit shall be governed by the most recent revision of the Uniform Customs and Practice for
Documentary Credits, International Chamber of Commerce Publication No. 500.
We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly honored upon presentation. BY:
Its