HomeMy WebLinkAboutContract 1686DEVELOPMENT CONTRACT FOR
PLAT OF
PARKSIDE VILLAGE TOWNHOMES
ANOKA COUNTY, MINNESOTA
INDEX TO CITY OF COLUMBIA HEIGHTS
DEVELOPMENT CONTRACT FOR
PARKSIDE VILLAGE TOWNHOMES, ANOKA COUNTY, MINNESOTA
RECITALS
ARTICLE 1 - DEFINITIONS
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
Terins
City of Columbia Heights
Developer, Owner
Plat
Development Plans
Development Contract
Council
PWD
Director of PWD
County
Developer Improvements
Developer Public Improvements
Developer Default
Force Majeure
Developer Warranties
A. Authority
B. No Default
2
1.16
1.17
C. Present Compliance With Laws
D. Continuing Compliance With Laws
E. No Litigation
F. Full Disclosure
G. Two Year Warranty On Proper Work and Materials
H. Obtaining Permits
City Warranties
A. Authority
Formal Notice
ARTICLE 2 - DEVELOPER IMPROVEMENTS
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
Developer Improvements
Boulevard and Area Restoration
Street Maintenance
Occupancy
Approval of Contractors and Engineer
Construction
Inspection
Faithful Performance of Construction Contracts
City Acceptance
ARTICLE 3 - RESPONSIBILITY FOR COSTS
3.1 Developer Improvement Costs
3.2 Enforcement Costs
3
3.3 Time of Payment
ARTICLE 4 - DEVELOPER WARRANTIES
4.1 Statement of Developer Warranties
ARTICLE 5 - CITY WARRANTIES
5.1 Statement of City Warranties
ARTICLE 6 - INDEMNIFICATION OF CITY
6.1 Indemnification of City
ARTICLE 7 - CITY REMEDIES UPON DEVELOPER DEFAULT
7.1
7.2
7.3
7.4
City Remedies
No Additional Waiver Implied by One Waiver
No Remedy Exclusive
Emergency
ARTICLE 8 -
8.1
8.2
ESCROW DEPOSIT
Escrow Requirement
Escrow Release and Escrow Increase; Developer Improvements
ARTICLE 9 - MISCELLANEOUS
9.1 City's Duties
9.2 No Third Party Recourse
9.3 Validity
9.4 Recording
4
9.5 Binding Agreement
9.6 Contract Assignment
9.7 Amendment and Waiver
9.8 Governing Law
9.9 Counterparts
9.10 Headings
9.11 Inconsistency
9.12 Access
9.13 Landscaping
9.14 Park Dedication
9.15 Additional Agreements
9.16 Release of Development Contract
EXHIBIT A - LIST OF DEVELOPMENT PLANS
EXHIBIT B - DEVELOPER PUBLIC IMPROVEMENTS
EXHIBIT C - ESCROW CALCULATION
CITY OF COLUMBIA HEIGHTS
DEVELOPMENT CONTRACT FOR
PARKSIDE VILLAGE TOWNHOMES
THIS AGREEMENT, made and entered into on the twen .ty second day of July, 2002, by
and between the CITY OF COLUMBIA HEIGHTS, a municipality of the State of
Minnesota, (hereinafter called the CITY), and the OWNER and DEVELOPER identified
herein.
RECITALS:
WHEREAS, the DEVELOPER is requesting preliminary and final approval of the PLAT;
WHEREAS, the DEVELOPER has applied to the CITY for approval of the preliminary and
final plat and the DEVELOPMENT PLANS, and the same have been approved by the CITY,
WHEREAS, in conjunction with the granting of final plat approval and other approvals, the
CITY requires the installation of: a Connection to the Sullivan Lake Park Bituminous Pathway,
Site Landscaping and Street Lighting.
WHEREAS, under authority granted to it, including Minnesota Statutes Chapters 412, 429 and
462, the COUNCIL has agreed to approve the DEVELOPMENT PLANS on the following
conditions:
1. That the DEVELOPER enter into this DEVELOPMENT CONTRACT, which contract
defines the work which the DEVELOPER undertakes to complete within the PLAT; AND
2. The DEVELOPER shall provide an irrevocable letter of credit, or cash deposit, in the
amount and with conditions satisfactory to the CITY, providing for the actual construction and
installation of such improvements within the period specified by the CITY.
WHEREAS, the DEVELOPER has filed four (4) complete sets of the DEVELOPMENT
PLANS with the CITY;
WHEREAS, the DEVELOPMENT PLANS have been prepared by a registered professional
engineer and have been submitted to and approved by the DIRECTOR OF THE PWD.
NOW, THEREFORE, subject to the terms and conditions of this DEVELOPMENT
CONTRACT and in reliance upon the representations, warranties and covenants of the parties
herein contained, the CITY, OWNER and DEVELOPER agree as follows:
6
ARTICLE L
DEFINITIONS
1.1 TERMS. The following terms, unless elsewhere defined specifically in the
DEVELOPMENT CONTRACT, shall have the following meanings as set forth below.
1.2
corporation.
CITY. "CITY" means the City of Columbia Heights, a Minnesota municipal
1.3 DEVELOPER~ OWNER. "DEVELOPER" means Nedegaard Construction Co,
Inc. a Minnesota Corporation, and 'OWNER" means Nedegaard Custom Homes, a Minnesota
Corporation.
1.4 PLAT. "PLAT" means the plat of PARKSIDE VILLAGE TOWNHOMES, in
the City of Columbia Heights, Anoka County, Minnesota.
1.5 DEVELOPMENT PLANS. "DEVELOPMENT PLANS" means all those plans,
drawings, specifications and surveys identified and checked on the attached Exhibit A, and
hereby incorporated by reference and made a part of this DEVELOPMENT CONTRACT.
1.6 DEVELOPMENT CONTRACT. "DEVELOPMENT CONTRACT" means this
instant contract by and among the CITY, OWNER and DEVELOPER.
COUNCIL. "COUNCIL" means the Council of the City of Columbia Heights.
PWI). "PWD" means the Public Works Department of the City of Columbia
1.7
1.8
Heights.
1.9
DIRECTOR OF PWD. "DIRECTOR OF PWD" means the Director of Public
Works Department of the City of Columbia Heights and his delegates.
1.10 COUNTY. "COUNTY" means Anoka County, Minnesota.
1.11 DEVELOPER IMPROVEMENTS. "DEVELOPER IMPROVEMENTS"
means and includes all the improvements identified on the attached Exhibit B.
1.12 DEVELOPER PUBLIC IMPROVEMENTS. "DEVELOPER PUBLIC
IMPROVEMENTS" means and includes, jointly and severally, all the improvements identified
and checked on the attached Exhibit B that are further labeled "public". DEVELOPER PUBLIC
IMPROVEMENTS are improvements to be constructed by the DEVELOPER within public
right-of-way and which are to be approved and later accepted by the CITY. DEVELOPER
PUBLIC IMPROVEMENTS are part of DEVELOPER IMPROVEMENTS.
1.13 DEVELOPER DEFAULT. "DEVELOPER DEFAULT" means and includes,
jointly and severally, any of the following or any combination thereof:
7
failure by the DEVELOPER to timely pay the CITY any money required to be
paid under the DEVELOPMENT CONTRACT;
b)
failure by the DEVELOPER to timely construct the DEVELOPER PUBLIC
IMPROVEMENTS according to the DEVELOPMENT PLANS and the CITY
standards and specifications;
c)
failure by the DEVELOPER to observe or perform any covenant, condition,
obligation or agreement on its part to be observed or performed under this
DEVELOPMENT CONTRACT;
d) breach of the DEVELOPER WARRANTIES.
1.14 FORCE MAJEURE. "FORCE MAJEURE" means acts of God, including, but
not limited to floods, ice storms, blizzards, tornadoes, landslides, lightning and earthquakes (but
not including reasonably anticipated weather conditions for the geographic area), riots,
insurrections, war or civil disorder affecting the performance of work, blockades, power or other
utility failures, and fires or explosions.
1.15 DEVELOPER WARRANTIES. "DEVELOPER WARRANTIES" means that
the Developer hereby warrants and represents the following:
Ao
AUTHORITY. Developer is a limited liability company, validly existing and in
good standing under the laws of the State of Minnesota.
DEVELOPER has the right, power, legal capacity and authority to enter into and
perform its obligations under this DEVELOPMENT CONTRACT, and no
approvals or consents of any persons are necessary in connection with the
authority of DEVELOPER to enter into and perform its obligations under this
DEVELOPMENT CONTRACT.
Bo
NO DEFAULT. DEVELOPER is not in default under any lease, contract or
agreement to which it is a party or by which it is bound which would affect
performance under this DEVELOPMENT CONTRACT. DEVELOPER is not a
party to or bound by any mortgage, lien, lease, agreement, instrument, order,
judgment or decree which would prohibit the execution or performance of this
DEVELOPMENT CONTRACT by DEVELOPER or prohibit any of the
transactions provided for in this DEVELOPMENT CONTRACT.
Co
PRESENT COMPLIANCE WITH LAWS. DEVELOPER has complied with
and is not in violation of applicable federal, state or local statutes, laws, and
regulations (including, without limitation, permits and licenses and any applicable
zoning, environmental or other law, ordinance or regulation) affecting the PLAT
and the DEVELOPMENT PLANS and the DEVELOPER IMPROVEMENTS;
and DEVELOPER is not aware of any pending or threatened claim of any such
violation.
Fo
CONTINUING COMPLIANCE WITH LAWS. DEVELOPER will comply
with all applicable federal, state and local statutes, laws and regulations
(including, without limitation, permits and licenses and any applicable zoning,
environmental or other law, ordinance or regulation) affecting the PLAT and the
DEVELOPMENT PLANS and the DEVELOPER IMPROVEMENTS.
NO LITIGATION. There is no suit, action, arbitration or legal, administrative
or other proceeding or governmental investigation pending, or threatened against
or affecting DEVELOPER or the PLAT or the DEVELOPMENT PLANS or the
DEVELOPER IMPROVEMENTS. DEVELOPER is not in default with respect
to any order, writ, injunction or decree of any federal, state, local or foreign court,
depamnent, agency or instrumentality.
FULL DISCLOSURE. None of the representatives and warranties made by
DEVELOPER or made in any exhibit hereto or memorandum or writing furnished
or to be furnished by DEVELOPER or on its behalf contains or will contain any
untrue statement of material fact or omit any material fact the omission of which
would be misleading.
TWO YEAR WARRANTY ON PROPER WORK AND MATERIALS The
1.16
Ao
DEVELOPER warrants all work required to be performed by its under this
DEVELOPMENT CONTRACT against poor material and faulty workmanship
for a period of two (2) years after its completion and acceptance by the CITY,
except that landscaping materials are only warranted for twelve (12) calendar
months after completion and acceptance. The DEVELOPER shall be solely
responsible for all costs of performing repair work required by the CITY within
thirty (30) days of notification.
OBTAINING PERMITS. The DEVELOPER shall obtain in a timely manner
and pay for all required permits, licenses and approvals, and shall meet, in a
timely manner, all requirements of all applicable, local, state and federal laws and
regulations which must be obtained or met before the DEVELOPER
IMPROVEMENTS may be lawfully constructed.
CITY WARRANTIES. "CITY WARRANTIES" means that the CITY hereby
warrants and represents as follows:
AUTHORITY. CITY is a municipal corporation duly incorporated and validly
existing in good standing the laws of the State of Minnesota.
CITY has the right, power, legal capacity and authority to enter into and perform
its obligations under this DEVELOPMENT CONTRACT.
1.17
FORMAL NOTICE. "FORMAL NOTICES" means notices given by one party
to the other if in writing and if and when delivered or tendered either in person or
by depositing it in the United States Mail and in a sealed envelope, by certified
mail, retum receipt requested, with postage and postal charges prepaid, addressed
as follows:
If to CITY:
City of Columbia Heights
Attention: City Manager
590 40th Avenue N.E.
Columbia Heights, Minnesota 55421
If to DEVELOPER
Nedegaard Custom Homes
C/o Bruce Nedegaard
4200 Central Avenue
Columbia Heights, Minnesota 55421
or to such other address as the party addressed shall have previously
designated by notice given in accordance with this Section. Notices shall be
deemed to have been duly given on the date of service if served personally on
the party to whom notice is to be given, or on the third day after mailing if
mailed as provided above, provided, that a notice not given as above shall, if
it is in writing, be deemed given if and when actually received by a party.
2.1
2.2
ARTICLE 2
DEVELOPER IMPROVEMENTS
DEVELOPER IMPROVEMENTS. The DEVELOPER shall install, at its own
cost, the DEVELOPER IMPROVEMENTS in accordance with the
DEVELOPMENT PLANS. The DEVELOPER IMPROVEMENTS shall be
completed by the dates shown on Exhibit B, except as completion dates are
extended by subsequent resolution of the COUNCIL. Failure of the CITY to
promptly take action to enforce this DEVELOPMENT CONTRACT after
expiration of time in which the DEVELOPER IMPROVEMENTS are to be
completed shall not waive or release any rights of the CITY; the CITY may take
action at any time thereafter, and the terms of this contract shall be deemed to be
automatically extended until such time as the DEVELOPER IMPROVEMENTS
are completed to the CITY's satisfaction.
BOULEVARD AND AREA RESTORATION. The DEVELOPER shall seed
or lay cultured sod in all boulevards within 30 days of the completion of street
related improvements and restore all other areas disturbed by the development
10
grading operation in accordance with the approved erosion control plan, over the
entire PLAT.
2.3
STREET MAINTENANCE. The DEVELOPER shall clear, on a daily basis,
any soil, earth or debris from the streets and wetlands within or adjacent to this
PLAT resulting from the grading or building on the land within the PLAT by the
DEVELOPER or its agents, and shall restore to the CITY's specifications any
gravel base contaminated by mixing construction or excavation debris, or earth in
it, and repair to the CITY's specifications any damage to bituminous surfacing
resulting from the use of construction equipment.
2.4
OCCUPANCY. No certificate of occupancy and no occupancy of any building
in the PLAT shall occur until the DEVELOPER IMPROVEMENTS have been
installed, except for landscaping, which may be a condition subsequent.
2.5
APPROVAL OF CONTRACTORS AND ENGINEER. Any contractor or
engineer preparing plans and specifications selected by the DEVELOPER to
design, construct or install any DEVELOPER PUBLIC IMPROVEMENTS must
be approved in writing by the DIRECTOR OF PWD.
2.6
CONSTRUCTION. The construction, installation, materials and equipment
related to DEVELOPER PUBLIC IMPROVEMENTS shall be in accordance with
the DEVELOPMENT PLANS. The DEVELOPER shall cause the contractors to
furnish the PWD with a written schedule of proposed operations, subcontractors
and material suppliers, at least five (5) days prior to commencement of
construction work. The DEVELOPER shall notify the CITY in writing,
coordinate and hold a pre-construction conference with all affected parties at least
three (3) days prior to starting construction of any DEVELOPER PUBLIC
IMPROVEMENTS.
2.7
INSPECTION. The PWD or its designated representative, shall periodically
inspect the work installed by the DEVELOPER, its contractors, subcontractors or
agents. The DEVELOPER shall notify the PWD two (2) working days prior to
the commencement of the laying of utility lines, subgrade preparation, the laying
of gravel base for street construction or any other improvement work which shall
be subsequently buried or covered to allow the CITY an opportunity to inspect
such improvement work. Upon receipt of said notice, the City shall have a
reasonable time, not to be less than three (3) working days, to inspect the
improvements. Failure to notify the CITY to allow it to inspect said work shall
result in the CITY'S right pursuant to Article 15 to withhold the release of any
portion of the escrow amount resulting from work being performed without the
opportunity for adequate CITY inspection.
2.8 FAITHFUL PERFORMANCE OF CONSTRUCTION CONTRACTS The
DEVELOPER shall fully and faithfully comply with all terms of any and all
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2.9
contracts entered into by the DEVELOPER for the installation and construction of
all of the DEVELOPER PUBLIC IMPROVEMENTS; and the DEVELOPER
shall obtain lien waivers. Within thirty (3) days after FORMAL NOTICE, the
DEVELOPER agrees to repair or replace, as directed by the CITY and at the
DEVELOPER's sole cost and expense, any work or materials that within one (1)
years after acceptance of the DEVELOPER PUBLIC IMPROVEMENTS by the
CITY becomes defective in the opinion of the City.
CITY ACCEPTANCE. The DEVELOPER shall give FORMAL NOTICE to
the CITY within thirty (30) days once DEVELOPER PUBLIC
IMPROVEMENTS have been completed in accordance with this
DEVELOPMENT CONTRACT and the ordinances, CITY standards and
specifications and the DEVELOPMENT PLANS. The CITY shall then inspect
the DEVELOPER PUBLIC IMPROVEMENTS and notify the DEVELOPER of
any DEVELOPER PUBLIC IMPROVEMENTS that do not so conform. Upon
compliance with this DEVELOPMENT CONTRACT and CITY ordinances,
standards and specifications, and the DEVELOPMENT PLANS, the
DEVELOPER PUBLIC IMPROVEMENTS shall become the property of the
CITY upon FORMAL NOTICE of acceptance by the CITY. After acceptance,
the DEVELOPER PUBLIC IMPROVEMENTS become the property of the
CITY, and the DEVELOPER PUBLIC IMPROVEMENTS except as provided in
Section 1.15. If the DEVELOPER PUBLIC IMPROVEMENTS do not conform,
FORMAL NOTICE shall be given to the DEVELOPER of the need for repair or
replacement.
3.1
3.2
3.3
ARTICLE 3
RESPONSIBILITY FOR COSTS
DEVELOPER IMPROVEMENT COSTS. The DEVELOPER shall pay for the
DEVELOPER IMPROVEMENTS; that is, all costs of persons doing work or
furnishing skills, tools, machinery or materials, or insurance premiums or
equipment or supplies and all just claims for the same; and the CITY shall be
under no obligation to pay the contractor or any subcontractor any sum
whatsoever on account thereof, whether or not the CITY shall be under no
obligation to pay the contractor or any subcontractor any sum whatsoever on
account thereof, whether or not the CITY shall have approved the contract or
subcontract.
ENFORCEMENT COSTS. The DEVELOPER shall pay the CITY for costs
incurred in the enforcement of this DEVELOPMENT CONTRACT, including
engineering and attorneys' fees.
TIME OF PAYMENT. The DEVELOPER shall pay all bills from the CITY
within thirty (30) days after billing. Bills not paid within thirty (30) days shall
become interest at the rate of 8% per year.
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4.1
5.1
ARTICLE 4
DEVELOPER WARRANTIES
STATEMENT OF DEVELOPER WARRANTIES. The Developer hereby
makes and states the DEVELOPER WARRANTIES.
ARTICLE 5
CITY WARRANTIES
STATEMENT OF CITY WARRANTIES, The City hereby makes and states
the CITY WARRANTIES.
6.1
ARTICLE 6
INDEMNIFICATION OF
INDEMNIFICATION OF CITY. DEVELOPER shall indemnify, defend and
hold the CITY its COUNCIL, agents, employees, attorneys and representatives
harmless against and in respect of any and all claims, demands, actions, suits,
proceedings, losses, costs, expenses, obligations, liabilities, damages, recoveries,
and deficiencies, including interest, penalties and attorneys' fees, that the CITY
incurs or suffers, which arise out of, results from or relates to:
a)
b)
c)
d)
¢)
0
g)
h)
breach by the DEVELOPER of the DEVELOPER WARRANTIES;
failure of the DEVELOPER to timely construct the DEVELOPER
PUBLIC IMPROVEMENTS according to the DEVELOPMENT PLANS
and the CITY ordinances, standards and specifications;
failure by the DEVELOPER to observe or perform any covenant,
conditions, obligation or agreement on its part to be observed or
performed under this DEVELOPMENT CONTRACT;
failure by the DEVELOPER to pay contractors, subcontractors, laborers,
or materialmen;
failure by the DEVELOPER to pay for materials;
approval by the CITY of the DEVELOPMENT PLANS;
failure to obtain the necessary permits and authorizations to construct the
DEVELOPER PUBLIC IMPROVEMENTS;
construction of the DEVELOPMENT PUBLIC IMPROVEMENTS.
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7.1
ARTICLE 7
CITY REMEDIES UPON DEVELOPER DEFAULT
CITY REMEDIES. If a DEVELOPER DEFAULT occurs, that is not caused by
FORCE MAJEURE, the CITY shall give the DEVELOPER FORMAL NOTICE
of the DEVELOPER DEFAULT and the DEVELOPER shall have to cure the
DEVELOPER DEFAULT within a thirty (30) days cure period, hereinafter
defined as "CURE PERIOD". Said CURE PERIOD may be extended by the
CITY for a reasonable period of time to be determined by the DIRECTOR OF
PWD, at his sole discretion, provided that the DEVELOPER submits, to the CITY
using the FORMAL NOTICE procedures of Section 1.17 within the CURE
PERIOD, a reasonable plan or contract bid that demonstrates that it is impractical
to cure the DEVELOPER DEFAULT within the CURE PERIOD. If the
DEVELOPER, after FORMAL NOTICE to it by the CITY, does not cure the
DEVELOPER DEFAULT within the CURE PERIOD or DIRECTOR OF PWD
approved extension thereof, then the CITY may avail itself of any remedy
afforded by law and any of the following remedies.
the CITY may specifically enforce this DEVELOPMENT
CONTRACT;
b)
the CITY may suspend any work improvement or obligation to be
performed by the CITY;
c)
the CITY may collect on the irrevocable letter of credit or cash
deposit;
the CITY may deny building and occupancy permits for buildings
within the PLAT;
the CITY may, at its sole option, perform the work or
improvements to be performed by the DEVELOPER, in which
case the DEVELOPER shall within thirty (30) days after written
billing by the CITY reimburse the CITY for any costs and
expenses incurred by the CITY. In the alternative, the CITY may
in whole or in part, specially assess any of the costs and expenses
incurred by the CITY; and the DEVELOPER and OWNER hereby
waive any and all procedural and substantive objections to the
installation and construction of the work and improvements and
the special assessment resulting there from, including but not
limited to notice and heating requirement and any claim that the
special assessments exceed benefit to the PLAT. The
DEVELOPER and OWNER hereby waive any appeal rights
otherwise available pursuant to Minn. Stat. 429.081.
14
7.2 NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event
7.3
7.4
any agreement contained in this DEVELOPMENT CONTRACT is breached by
the DEVELOPER and thereafter waived in writing by the CITY, such waiver
shall be limited to the particular breach so waived and shall not be deemed to
waive any other concurrent, previous or subsequent breach hereunder. All
waivers by the CITY must be in writing.
NO REMEDY EXCLUSIVE. No remedy herein conferred upon or reserved to
the CITY shall be exclusive of any other available remedy or remedies, but each
and every such remedy shall be cumulative and shall be in addition to every other
remedy given under the DEVELOPMENT CONTRACT or now or hereafter
existing at law or in equity or by statute. No delay or omission to exercise any
right or power accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. In order to
entitle the CITY to exercise any remedy reserved to it, it shall not be necessary to
give notice, other than the FORMAL NOTICE.
EMERGENCY. Notwithstanding the requirement relating to FORMAL
NOTICE to the DEVELOPER in case of a DEVELOPER DEFAULT and
notwithstanding the requirement relating to giving the DEVELOPER a thirty (30)
day period to cure the DEVELOPER DEFAULT, in the event of an emergency as
determined by the Director of PWD, resulting fi'om the DEVELOPER
DEFAULT, the CITY may perform the work or improvement to be performed by
the DEVELOPER without giving any notice or FORMAL NOTICE to the
DEVELOPER and without giving the DEVELOPER the forty-eight (48) hour
period to cure the DEVELOPER DEFAULT. In such case, the DEVELOPER
shall within thirty (30) days after written billing by the CITY reimburse the CITY
for any and all costs incurred by the CITY. In the alternative, the CITY may, in
whole or in part, specially assess the costs and expenses incurred by the CITY;
and the DEVELOPER and OWNER hereby waive any and all procedural and
substantive objections to the installation and construction of the work and
improvements and the special assessments resulting there fi.om, including but not
limited to notice and hearing requirements and any claim that the special
assessments exceed benefit to the PLAT. The DEVELOPER and OWNER
hereby waive any appeal rights otherwise available pursuant to Minn. Stat.
429.081.
8.1
ARTICLE 8
ESCROW DEPOSIT
ESCROW REQUIREMENT. Contemporaneously herewith, the DEVELOPER
shall deposit with the CITY an irrevocable letter of credit, or cash deposit for the
amounts set forth on Exhibit C.
15
8.2
All cost estimates shall be acceptable to the DIRECTOR OF PWD. The total
escrow amount was calculated as shown on the attached Exhibit C. The bank and
form of the irrevocable letter of credit, or cash deposit shall be subject to approval
by the City Finance Director and City Attorney and shall continue to be in full
force and effect until released by the CITY. The irrevocable letter of credit shall
be for a term ending December 31, 2003. In the alternative, the letter of credit
may be for a one year term provided it is automatically renewable for successive
one year periods from the present or any future expiration dates with a final
expiration date of December 31, 2003, and further provided that the irrevocable
letter of credit states that at least sixty (60) days prior to the expiration date the
bank will notify the City that if the bank elects not to renew for an additional
period. The irrevocable letter of credit shall secure compliance by the
DEVELOPER with the terms of this DEVELOPMENT CONTRACT. The CITY
may draw down on the irrevocable letter of credit or cash deposit, without any
further notice than that provided in Section 7.1 relating to a DEVELOPER
DEFAULT, for any of the following reasons:
a) a DEVELOPER DEFAULT; or
b)
upon the CITY receiving notice that the irrevocable letter of credit
will be allowed to lapse before December 31, 2003.
With CITY approval, the irrevocable letter of credit or cash deposit may be
reduced pursuant to Section 8.2 fi.om time to time as financial obligations are
paid.
ESCROW RELEASE AND ESCROW INCREASE~ DEVELOPER
IMPROVEMENTS. Periodically, upon the DEVELOPER's written request and
upon completion by the DEVELOPER and acceptance by the CITY of any
specific DEVELOPER PUBLIC IMPROVEMENTS, ninety percent (90%) of that
portion of the irrevocable letter of credit, or cash deposit covering those specific
completed improvements only shall be released. The final ten percent (10%) of
that portion of the irrevocable letter of credit, or cash deposit, for those specific
completed improvements shall be held until acceptance by the CITY and
expiration of the one year warranty period under Section 1.15 hereof; in the
altemative, the DEVELOPER may post a bond satisfactory to the CITY with
respect to the final ten percent (10%).
If it is determined by the CITY that the DEVELOPMENT PLANS were not
strictly adhered to, or that work was done without CITY inspection, the CITY
may require, as a condition of acceptance, that the DEVELOPER post a
irrevocable letter of credit, or cash deposit equal to 125% of the estimated amount
necessary to correct the deficiency or to protect against deficiencies arising there
from. Said additional irrevocable letter of credit, or cash deposit, shall remain in
force for such time as the CITY deems necessary, not to exceed two (2) years. In
16
the event that work, which is concealed, was done without permitting CITY
inspection, then the CITY may, in the alternative, require the concealed condition
to be exposed for inspection purposes.
9.1
9.2
9.3
9.4
9.5
9.6
9.7
ARTICLE 9
MISCELLANEOUS
CITY's DUTIES. The terms of this DEVELOPMENT CONTRACT shall not be
considered an affirmative duty upon the CITY to complete any DEVELOPMENT
IMPROVEMENTS.
NO THIRD PARTY RECOURSE. Third parties shall have no recourse
against the CITY under this DEVELOPMENT CONTRACT.
VALIDITY. If any portion, section, subsection, sentence, clause, paragraph or
phrase of this DEVELOPMENT CONTRACT is for any reason held to be
invalid, such decision shall not affect the validity of the remaining portion of this
DEVELOPMENT CONTRACT.
RECORDING. The DEVELOPMENT CONTRACT and PLAT shall be
recorded with the COUNTY Recorder and the DEVELOPER shall provide and
execute any and all documents necessary to implement the recording.
BINDING AGREEMENT. The parties mutually recognize and agree that all
terms and conditions of this recordable DEVELOPMENT CONTRACT shall mn
with the PLAT and shall be binding upon the heirs, successors, administrators and
assigns of the DEVELOPER.
CONTRACT ASSIGNMENT. The DEVELOPER may not assign this
DEVELOPMENT CONTRACT without the written permission of the
COUNCIL. The DEVELOPER's obligations hereunder shall continue in full
force and effect, even if the DEVELOPER sells one or more lots, the entire
PLAT, or any part of it.
AMENDMENT AND WAIVER. The parties hereto may by mutual written
agreement amend this DEVELOPMENT CONTRACT in any respect. Any party
hereto may extend the time for the performance of any of the obligations of
another, waive any inaccuracies in representations by another contained in this
DEVELOPMENT CONTRACT or in any document delivered pursuant hereto
which inaccuracies would otherwise constitute a breach of this DEVELOPMENT
CONTRACT, waive compliance by another with any of the covenants contained
in this DEVELOPMENT CONTRACT and performance of any obligations by the
other or waive the fulfillment of any condition that is precedent to the
performance by the party so waiving of any of its obligations under this
DEVELOPMENT CONTRACT. Any agreement on the part of any party for any
17
9.8
9.9
9.10
9.11
9.12
9.13
such amendment, extension or waiver must be in writing. No waiver of any of the
provisions of this DEVELOPMENT CONTRACT shall be deemed, or shall
constitute, a waiver of any other provisions, whether or not similar, nor shall any
waiver constitute a continuing waiver.
GOVERNING LAW. This DEVELOPMENT CONTRACT shall be governed
by and construed in accordance with the laws of the State of Minnesota.
COUNTERPARTS. This DEVELOPMENT CONTRACT may be executed in
any number of counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
HEADINGS. The subject headings of the paragraphs and subparagraphs of this
DEVELOPMENT CONTRACT are included for purposes of convenience only,
and shall not affect the construction of interpretation of any of its provisions.
INCONSISTENCY. If the DEVELOPMENT PLANS are inconsistent with the
words of this DEVELOPMENT CONTRACT or if the obligations imposed
hereunder upon the DEVELOPER are inconsistent, then that provision or term
which imposes a greater and more demanding obligation on the DEVELOPER
shall prevail.
ACCESS. The DEVELOPER hereby grants to the CITY, its agents, employees,
officers, and contractors a license to enter the PLAT to perform all inspections
deemed appropriate by the CITY during the installation of DEVELOPER
IMPROVEMENTS by the DEVELOPER.
LANDSCAPING. Installation and Maintenance. The following regulations
shall govern the installation and maintenance of landscaping and screening
materials.
All landscaping materials and screening materials shall be installed in
conjunction with site development and prior to issuance of a final
certificate of occupancy.
b)
A letter of credit or other security as acceptable to the CITY shall be
deposited with the Zoning Administrator, in an amount equal to ten
percent (10%) of the estimated cost of landscaping and/or screening. The
letter of credit or other security as acceptable to the CITY, or portions
thereof, shall be forfeited to maintain and/or replace materials for a period
of time to include at least two (2) growing seasons. A portion of the letter
of credit or other security as acceptable to the CITY may be released after
one growing season as determined by the Zoning Administrator.
c)
The property owner shall be responsible for continued maintenance of
landscaping and screening materials to remain in compliance with the
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9.14
9.15
9.16
requirements of this Section. Plant materials that show signs of disease or
damage shall be promptly removed and replaced within the next planting
season.
PARK DEDICATION. The City hereby requires Park dedication fees in the
amount of $750.00 per unit, and that such fees be used to improve Sullivan Lake
Park Amentities.
ADDITIONAL AGREEMENTS. OWNER hereby agrees that the CITY shall
not release the PLAT to the OWNER for recording until the OWNER executes a
Sign Easement Agreement and a Storm Water Pond and Appurtenances
Maintenance Agreement, which is in a form that is acceptable to the CITY's
attorney.
RELEASE OF DEVELOPMENT CONTRACT. Upon completion of all
DEVELOPER IMPROVEMENTS and all DEVELOPER PUBLIC
IMPROVEMENTS, and upon the expiration of the Section 1.15G. TWO YEAR
WARRANTY ON PROPER WORK AND MATERIALS, the DEVELOPER may
submit to the CITY a draft release of this DEVELOPMENT CONTRACT for
review and approval by the CITY's attorney. The CITY agrees to cooperate with
the DEVELOPER to process a recordable release of this DEVELOPMENT
CONTRACT for title purposes provided that said improvements have been
completed and said warranties have expired.
IN WITNESS WHEREOF, the parties have executed this DEVELOPMENT
CONTRACT.
Gary Peter~nt, M'~yor
By:
Walt Fehst, ~i~Manager
O~DEVELOPER:
By: /~ ~r'~,~,~ ~
Bruce Nedegaard 0
Its ~...q;.
STATE OF MINNESOTA )
) SS.
COUNTY OF ANOKA )
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within and for said (~ounty, personally apl~ar~'d 'to me (~ary Peterson and Walt Fehst,
personally known, who being each by me duly sworn, each did say that they are
respectively the Mayor and City Manager of the City of Columbia Heights, the
municipality named in the foregoing instrument, and that the seal affixed to said
instrument was signed and sealed in behalf of said municipality by authority of its City
Council and said Mayor and City Manager acknowledged said instrument to be the free act
and deed of said municipality.
Notary Pgic
STATE OF MINNESOTA )
) SS.
COUNTY OF ANOKA )
within ~d for said Co~, personally~appe~ed Bm~edega~q, to me~ersonally ~o~, who
being by me duly sworn, each did say that he is the (~~ of Nedeg~d
Construction Co., hc. named in the foregoing inst~ent, ~d that s~d instment was si~ed in
behal~of s~d ~edeg~d Custom Homes~a Mi~osota Co~oration by authority of its
~~ ~d said t~~ ac~owledged said ins~ent to be ~e
~ee ~ ~d deed of the Nedega~d Commotion Co., hc., a Mi~esota Co~oration.
Notary P0.~ic
THIS INSTRUMENT DRAFTED BY:
Kevin Hansen, P.E.
Public Works Director/City Engineer
City of Columbia Heights
637 38th Avenue N.E.
Columbia Heights, MN 55421
763/706-3705
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EXHIBIT A
LIST OF DEVELOPMENT PLANS
1. Erosion Control and Grading Plan
Humphrey Engineering 7/19/02
2. Utility/Site Plan
Humphrey Engineering 7/19/02
3. Landscape Plan
Craig M. Bagne
6/26/02
e
Street Light Plan
(To be approved by the
City Planner.)
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EXHIBIT B
DEVELQPER PUBLIC IMPROVEMENTS
The items checked with "PUBLIC" below are those DEVELOPER IMPROVEMENTS that
are DEVELOPER-PUBLIC IMPROVEMENTS.
CHECKED
COMPLETION DATE
IMPROVEMENT
X Public 12/31/02 Utilities
X 6/31/03 Landscaping
X 6/31/03 Street Lighting
Note: Pursuant to Section 2.4, all Developer Improvements must be completed prior to
occupancy of any building on Parkside Village Townhomes, except for landscaping and
streetlighting, which may be a condition subsequent.
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EXHIBIT C
ESCROW CALCULATION
DEVELOPER IMPROVEMENTS
1. Erosion Control $ 12~500
2. Utilities $ 255~000
3. Street Lighting $ 10~500
MULTIPLIED BY:
1.25
EQUALS $ 278._000
For the above work, DEVELOPER shall post cash for $ 347,500.
In addition to the letter of credit required above, the DEVELOPER shall also deposit
$2,500 in cash with the CITY contemporaneously with execution of this DEVELOPMENT
CONTRACT. This $2,500 shall be to pay the CITY for engineering plan review and
inspection fees at the CITY's standard rates charged for such tasks. Upon acceptance of
the DEVELOPER PUBLIC IMPROVEMENTS, the CITY shall return to the
DEVELOPER any remaining portion of the $2,500 not otherwise charged against the
DEVELOPOER for engineering inspection performed by the CITY. To the extent the
engineering inspection fees, calculated according to the CITY's standard rates, exceed the
$2,500 deposit, the DEVELOPER is responsible for payment of such excess within thirty
(30) days after billing by the CITY.
7/3/02
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