Loading...
HomeMy WebLinkAboutContract 1785 I g FIRST AMENDMENT TO CONTRACT FOR PRIVATE REDEVELOPMENT THIS AGREEMENT, made on or as of the d0 day of ~:J 2005, by and between COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHO TY, COLUMBIA HEIGHTS, MINNESOTA, a public body corporate and politic (the "Authority"), established pursuant to Minnesota Statutes, Sections 469.090 to 469.1081 (hereinafter referred to as the "Act"), and NEW HEIGHTS DEVELOPMENT, LLC, a Minnesota limited liability company (the "Redeveloper"). WHEREAS, the Authority and the Redeveloper entered into that certain Contract for Private Redevelopment dated as of September 22, 2003 (the "Contract") providing for the redevelopment of certain property described as the Redevelopment Property in the Contract; and WHEREAS, under Section 4.1(b) of the Contract, the Redeveloper is obligated to construct all Public Improvements (as defined in that section) located within or serving the Redevelopment Property, including the streets; and WHEREAS, the Redeveloper also entered into a Development Contract for Grand Central Lofts, Anoka County, Minnesota between the Redeveloper and the City of Columbia Heights ("City"), dated , 2003 (the "Planning Contract"), which further specifies the Redeveloper's responsibilities regarding construction of streets and other improvements within the plat of the Redevelopment Property; and WHEREAS, the Authority and Redeveloper have determined that in order to construct certain street improvements within the plat, it is necessary to acquire temporary and permanent easements on certain property adjacent to the Redevelopment Property; and WHEREAS, the Redeveloper has exhausted efforts to acquire such easements through direct negotiation; and WHEREAS, the parties have determined a need to amend the Contract in order to facilitate acquisition ofthe necessary easements. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: 1. Section 3.1 ofthe Contract is amended add new paragraphs as follows: (d) The Redeveloper has determined that the temporary construction easement and permanent street right of way easement described in Exhibit A to this Amendment (together, the "Easements") are needed in order to construct the northern portion of the street running from 47th Avenue to 49th Avenue. Further, Redeveloper has exhausted efforts to acquire the Easements in the City's name directly from the third party owner. Therefore, the Authority will request the City to acquire the Easements using its powers of eminent domain. The parties agree and understand that the City will utilize so-called "quick take" powers under Minnesota Statutes Ch. 117 to the extent needed or SJB-261749v2 CLZ05-20 desirable to enable the street improvements to proceed in accordance with the overall schedule for the Minimum Improvements. The parties will cooperate and consult with one another on any condemnation actions and specifically on the final price to be paid in settlement of any condemnation action. (e) During the pendency of any City actions to acquire the Easements, the Redeveloper shall be required to promptly pay all expenses incurred by the Authority or City in connection with the prosecution thereof, including legal, survey, title, appraisal, relocation, process service, court costs, and similar expenses and all damages awarded to the owner of the property to the encumbered by said easements or which the City agrees to pay in settlement of the taking. The Authority shall, not more often than monthly during the pendency of the action, furnish the Redeveloper with a written itemized statement of all such expenditures. Redeveloper shall have two weeks from the receipt of such statement to pay the same. (f) Not later than five days prior to any date on which the City is required to deposit any amount into court to obtain title and possession to the Easements, Redeveloper shall deliver to the Authority 100 percent of the amount of any such deposit or payment. The Authority shall then have the right, and subject to the terms and conditions hereof, the obligation to transfer such funds to the City in order to make such deposit or such payments. The Authority shall have no obligation to repay such funds received, deposited or paid pursuant to this Agreement should the redevelopment covered by this Agreement not be completed for any reason. (g) The Authority will instruct the City not to make the deposit and obtain title to and possession ofthe Easements unless: (i) There is no uncured default by Redeveloper under this Agreement; and (ii) The Redeveloper has provided the Authority with an undertaking in the form of a written agreement and security reasonably acceptable to the Authority (including but not limited to a letter of credit, escrow deposit, or lien) that will assure payment by the Redeveloper of 100 percent of any condemnation award for the Easements in excess of the previously deposited sums. Such security shall be in the amount adequate to ensure performance of the above-described obligations outstanding from time to time and shall remain in effect according to its terms, and in any event, until suitable and adequate substitute security is agreed to by the parties, or until the obligations secured thereby are fully performed. (h) The parties agree and understand that the Easements acquired by the City will run in favor of the City, and the Redeveloper will have no right, title or interest in the Easements. SJB-261749v2 CL205-20 2 IN WITNESS WHEREOF, the Authority has caused this Amendment to be duly executed in its name and behalf and its seal to be hereunto duly affixed and the Redeveloper has caused this Agreement to be duly executed in its name and behalf on or as ofthe date fIrst above written. COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY BYIts~11~~l ~ //6 By ~~ A~~ Its ExecutiVe irector- W~Iter R. Fehst STATE OF MINNESOTA ) ) SS. COUNTYOFANOKA ) The foregoing instrument was acknowledged before me this ~ day of ~ ' 2005, by .bel' ff\u'\z.vm.~v-. and WC\. \.~ ((.., ~ehs+, the President and Executive irector of the Columbia Heights Economic Development Authority, a public body politic and corporate, on behalf ofthe Authority. ~ C// /1- ~ Notary Public 11I1 CHERYl!\. BAKKEN ,- NOTARY PUBUC -MINNESOTA MY COMMISSION EXPIRE51-31-2007 ;;,...-y"....-"'~-_. SJB-261749v2 CL205-20 3 STATE OF MINNESOTA ) ) SS. COUNTY OF A-1~ \CO, ) The foregoing instrument was acknowledged before me tIns d- 9 day of ~ ' 2005 by Brlie{ M~d.~~ Ol..tt.t& , the c-tJ~ of New Heights evelopment, LLC, a Minnesota limite lIabIlIty company, on behalf ofthe company. Not~ ,4"-~ II CHERYL A BAKKEN I NOTARY PUBUC -MINNESOTA MY COMMISSION EXPIRES 1-31-2007 .. I III SJB-261749v2 CL205-20 4 EXHffiIT A TO ~RSTAMENDMENTTOCONTRACTFORPmvATEREDEVELOPMENT Temporary Construction Easement Together with an easement for temporary construction purposes described as follows: Commencing at the Northwest comer of said NW1/4 of the SWl/4; thence on an assumed bearing of S 00024'48" W, along the West line of said NWl/4 of the SWl/4, a distance of383.00 feet; thence S 89035'12" E, a distance of 466.64 feet to the point of beginning of the easement to be described; thence S 89035'12" E, a distance of 24.18 feet; thence N 21058'09" E, a distance of 25.42 feet; thence S 88013'46" E, a distance of 12.39 feet; thence N 00013'48" E, a distance of 127.15 feet; thence N 22055'14" W, a distance of 110.52 feet to the southerly right of way line of 49th Avenue; thence N 66047'16" W, along said southerly right of way line, a distance of 116.26 feet; thence northwesterly along said southerly right of way line, along a tangential curve, concave to the southwest, having a radius of 671.50 feet, a central angle of6044'40", a distance of79.04 feet; thence S 16028'04" W, a distance of 10.00 feet; thence southeasterly along a non-tangential curve, concave to the southwest, having a radius of 661.50 feet, a central angle of 6044'40", a chord bearing of S 70009'36" E, a chord distance of 77.82 feet, an arc distance of 77.87 feet; thence S 66047'16" E, a distance of 90.59 feet; thence S 22055'14" E, a distance of 103.93 feet; thence S 00024'48" W, a distance of 75.63 feet; thence southerly along a tangential curve, concave to the west, having a radius of 225.00 feet, a central angle of 21016'36", and a distance of 83.55 feet to the point of beginning. Permanent Street Right of Way Easement That part of the NW1/4 of the SW1/4 of Section 25, Township 30, Range 24, Anoka County, Minnesota, described as follows: Commencing at the Northwest comer of said NWl/4 of the SWl/4; thence on an assumed bearing of S 00024'48" W, along the West line of said NW1/4 of the SWl/4, a distance of383.00 feet; thence S 89035'12" E, a distance of550.00 feet to the point of beginning of the land to be described; thence N 89035'12" W, a distance of59.18 feet; thence N 21058'09" E, a distance of25.42 feet; thence S 88013'46" E, a distance of 12.39 feet; thence N 00013'48" E, a distance of 127.15 feet; thence N 22055'14" W, a distance of 110.52 feet to the southerly right of way line of 49th Avenue; thence S 66047'16" E, along said southerly right of way line, a distance of 24.84 feet; thence southeasterly, along said southerly right of way line, along a tangential curve, concave to the northeast, having a radius of 749.77 feet, a central SJB-261749v2 CL205-20 A-I angle of 4047'26", a distance of 62.69 feet to its intersection with a line that bears N 00024'48" E from the point of beginning; thence S 00024'48" W, a distance of 220.50 feet to the point of beginning. SJB-261749v2 CL205-20 A-2 DEVELOPMENT CONTRACT FOR PLAT OF GRAND CENTRAL LOFTS ANOKA COUNTY, MINNESOTA INDEX TO CITY OF COLUMBIA HEIGHTS DEVELOPMENT CONTRACT FOR GRAND CENRAL LOFTS, 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 relTnS City of Coltm~bia Heights Developer, Owner Plat Development Plans Development Contract Council PWD Director of PWD Cotmty Developer hr~provements Developer Public Improvements Developer Default Force Majeure Developer Warranties A. Authority B. No Default D. E. F. G. H. Present Compliance With Laws Continuing Compliance With Laws No Litigation Full Disclosure Two Year Warranty On Proper Work and Materials Obtaining Permits 1.16 City Warranties A. Authority 1.17 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 Comractors and Engineer Construction h~spection Faithful Performance of Construction Contracts City Acceptance ARTICLE 3 - RESPONSIBILITY FOR COSTS 3.1 Developer hnprovement Costs 3.2 Enforcement Costs 3.3 Time of Payment ARTICLE 4 - DEVELOPER WARRANTIES 4.1 Statement of Developer Warranties ARTICLE 5 - CITY WARRANTIES 5.1 Statement of City Wan'anties 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 - ESCROW DEPOSIT 8.1 Escrow Requirement 8.2 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 Assigmnent 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 Record Drawings 9.16 Additional Agreements 9.17 Release of Development Contract EXHIBIT A - LIST OF DEVELOPMENT PLANS EXHIBIT B - DEVELOPER PUBLIC IMPROVEMENTS EXHIBIT C - ESCROW AND PARK DEDICATION CALCULATION CITY OF COLUMBIA HEIGHTS DEVELOPMENT CONTRACT FOR GRAND CENTRAL LOFTS THIS AGREEMENT, made and entered into on the Twenty. Third day of August, 2004, 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, mad 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. Sanitary Sewer Reconstruction fi:om 47th to 51st Avenues, b. turn lane and restriping on 49th Avenue as required by Anoka County, c. installation of a 5 foot concrete sidewalk on the north side of 47th from Central to Fillmore Avenues~ and d. 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 mnount and with conditions satisfactory to the CITY, providing for the actual construction mad 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 mad 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: 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 ARTICLE L DEFINITIONS TERMS. The following terms, unless elsewhere defined specifically in the DEVELOPMENT CONTRACT, shall have the following meanings as set forth below. CITY. "CITY" means the City of Colmnbia Heights, a Mimaesota mulficipal corporation. DEVELOPER, OWNER. "DEVELOPER" means New Heights Development, LLC, a Minnesota Limited License Corporation, and 'OWNER" means Nedegaard Custom Homes, a Minnesota Corporation. PLAT. "PLAT" means the plat of GRAND CENTRAL LOFTS, in the City of Columbia Heights, Anoka County, Mim~esota. DEVELOPMENT PLANS. "DEVELOPMENT PLANS" means all those plans, drawings, specifications and sm-veys identified and checked on the attached Exhibit A, and hereby incorporated by reference and made a part of this DEVELOPMENT CONTRACT. DEVELOPMENT CONTRACT. "DEVELOPMENT CONTRACT" means this instant contract by and among the CITY, OWNER and DEVELOPER. COUNCIL. "COUNCIL" means the Cotmcil of the City of Columbia Heights. PWD. "PWD" means the Public Works Depm~tmem of the City of Colmnbia Heights. DIRECTOR OF PWD. "DIRECTOR OF PWD" lneans the Director of Public Works Department of the City of Columbia Heights and his delegates. COUNTY. "COUNTY" means Anoka County, Minnesota. DEVELOPER IMPROVEMENTS. "DEVELOPER IMPROVEMENTS" means and includes all the improvements identified on the attached Exhibit B. 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 1.14 1.15 DEVELOPER DEFAULT. "DEVELOPER DEFAULT" means and includes, jointly and severally, any of the following or any combination thereof: 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. 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), dots, insurrections, war or civil disorder affecting the performance of work, blockades, power or other utility failures, and fires or explosions. DEVELOPER WARRANTIES. "DEVELOPER WARRANTIES" means that the Developer hereby warrants and represents the following: AUTHORITY. Developer is a limited liability company, validly existing and in good standing under the laws of the State of Milmesota. 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. 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, judgnnent or decree which would prohibit the execution or perfonr~ance of this DEVELOPMENT CONTRACT by DEVELOPER or prohibit any of the transactions provided for in this DEVELOPMENT CONTRACT. PRESENT COMPLIANCE WITH LAWS. DEVELOPER has complied with and is not in violation of applicable federal, state or local 1.16 statutes, laws, and regulations (including, without limitation, permits auld licenses and any applicable zoning, enviromnental 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. 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 govennnental 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, department, agency or instrumentality. FULL DISCLOSURE. None of the representatives and warranties made by DEVELOPER or made in any exhibit hereto or memorandum or writing filmished 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 DEVELOPER warrants all work required to be perfomaed by it under this DEVELOPMENT CONTRACT against poor material and faulty worka~aanship for a period of two (2) years after its completion and acceptance by the CITY. 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 murdcipal corporation duly incorporated and validly existing in good standing the laws of the State of Mimaesota. 1.17 CITY has the right, power, legal capacity and authority to enter into and perform its obligations under this DEVELOPMENT CONTRACT. 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, return 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 New Heights Development, LLC % Bruce Nedegaard 4200 Central Avenue Columbia Heights, Minnesota 55421, and Nedegaard Custom Homes % 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 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 Exlfibit 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 10 2.2 2.3 2.4 2.5 2.6 2.7 action at any time thereafter, and the terms oftlfis contract shall be deemed to be atttomatically extended until such time as the DEVELOPER IMPROVEMENTS are completed to the CITY's satisfaction. BOULEVARD AND AREA RESTORATION. The DEVELOPER shall lay cultured sod or seed in all boulevards within 21 days of the completion of street related improvements and restore all other areas distm:bed by the development grading operation in accordance with the approved erosion control plan, over the entire PLAT. STREET MAINTENANCE. The DEVELOPER shall clear, on a daily basis, any soil, earth or debris fi'om 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. 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 the Central Avenue Sanitary Sewer, 49th Avenue Right Turn Lane, Site Landscaping and Site Street Lighting, which may be a condition subsequent. 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. 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 colmuencement 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. 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 commencemel~t of the laying of utility lines, snbgrade preparation, the laying of gravel base for street construction or any other improvelnel~t work which shall be subsequently buried or covered to allow the CITY an opportmfity to inspect such improvelnent work. Upon receipt of said notice, the City shall have a 11 2.8 reasonable time, not to be less than three (3) working days, to inspect the improvements. Failm'e to notify the CITY to allow it to inspect said work shall result in the CITY'S right pursuant to Article 8 to withhold the release of any portion of the escrow amount resulting from work being performed without the opportunity for adequate CITY inspection. FAITHFUL PERFORMANCE OF CONSTRUCTION CONTRACTS. The 2.9 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 of the DEVELOPER PUBLIC IMPROVEMENTS; and the DEVELOPER shall obtain lien waivers. Within tlfirty (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 confonrt. 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. If the DEVELOPER PUBLIC IMPROVEMENTS do not confonr~, FORMAL NOTICE shall be given to the DEVELOPER of the need for repair or replacement. 3.1 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 fitrnishing sldlls, tools, maclfinery 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 accotmt thereof, whether or not the CITY shall have approved the contract or subcontract. 12 3.2 3.3 ENFORCEMENT COSTS. The DEVELOPER shall pay the CITY for costs incun'ed in the enforcement of this DEVELOPMENT CONTRACT, including engineering and attorneys' fees. TIME OF PAYMENT. The DEVELOPER shall pay all bills fronl the CITY within thirty (30) days after billing. Bills not paid within thirty (30) days shall accrue interest at the rate of 6% per year. 4.1 ARTICLE 4 DEVELOPER WARRANTIES STATEMENT OF DEVELOPER WARRANTIES. makes and states the DEVELOPER WARRANTIES. The Developer hereby 5.1 ARTICLE 5 CITY WARRANTIES STATEMENT OF CITY WARRANTIES. The City hereby makes and states the CITY WARRANTIES. 6.1 ARTICLE 6 INDEMNIFICATION INDEMNIFICATION OF THE CITY. DEVELOPER shall indemnify, defend and hold the CITY its COUNCIL, agents, employees, attorueys 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, wlfich arise out of, results from or relates to: a) breach by the DEVELOPER of the DEVELOPER WARRANTIES; b) failure of the DEVELOPER to timely construct the DEVELOPER PUBLIC IMPROVEMENTS according to the DEVELOPMENT PLANS and the CITY ordinances, standards and specifications; c) failure by the DEVELOPER to observe or perfonx~ any covenant, conditions, obligation or agreement on its part to be observed or performed under this DEVELOPMENT CONTRACT; d) failm'e by the DEVELOPER to pay contractors, subcontractors, laborers, or materialmen; 13 e) f) g) h) 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. 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 DEFAifLT 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 tlfis 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; d) the CITY may deny building and occupancy permits for buildings within the PLAT; e) 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. h~ the alternative, the CITY may in whole or in part, specially assess any of the costs and expenses 14 7.2 7.3 7.4 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 hearing requirement and any claim that the special assessments exceed benefit to the PLAT. The DEVELOPER and OWNER hereby waive any appeal rights up to the amount indicated on Exhibit 'C' pursuant to Minn. Stat. 429.081. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event 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 fight and power may be exercised fi-om 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 mad without giving the DEVELOPER a 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. ha 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 15 hereby waive any appeal rights up to the mnount indicated on Exhibit 'C' pursum~t to Miun. Stat. 429.081. 8.1 8.2 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 an~otmts set forth on Exhibit C. 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 contfl~ue to be in full force and effect until released by the CITY. The irrevocable letter of credit shall be for a term ending July 31, 2007. 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 July 31, 2007, 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 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 July 31, 2007. With CITY approval, the irrevocable letter of credit or cash deposit may be reduced pursuant to Section 8.2 from time to time as financial obligations are paid. ESCROW RELEASE AND ESCROW INCREASEI 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 improvelnents 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 16 expiration of the warranty period under Section 1.15 hereof; in the alternative, 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 an 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 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 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 trader this DEVELOPMENT CONTRACT. VALIDITY. If any portion, section, subsection, sentence, clause, paragraph or phi'ase 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 a nd agree that a 11 terms and conditions of this recordable DEVELOPMENT CONTRACT shall rrm 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. 17 9.7 9.8 9.9 9.10 9.11 9.12 9.13 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 may of the obligations of another, waive any inaccuracies in represe~_atations by another contained in this DEVELOPMENT CONTRACT or in any document delivered pursuant hereto Milch inaccuracies would otherwise constitute a breach of this DEVELOPMENT CONTRACT, waive compliance by another with any of the covenants contained in tlfis 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 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 Milmesota. 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 oftlfis DEVELOPMENT CONTRACT or if the obligations imposed heretmder upon the DEVELOPER are inconsistent, then that provision or term which imposes a greater and more demandhag obligation on the DEVELOPER shall prevail. ACCESS. The DEVELOPER hereby grants to the CITY, its agents, employees, officers, and contractors a license to e~_~_ter the PLAT to perform al! 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. a) All landscaping materials and screening materials shall be installed in COlajunction with site development and prior to issuance of a final certificate of occupancy and building. For Blocks 1, 2, and 3 of the 18 Development, this requirement shall be based on the landscaping and screening materials for each Block. b) A letter of credit or other security as acceptable to the CITY shall be deposited with the Director of Public Works, 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, as defined by MnDOT. 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 Director of Public Works. c) The property owner shall be responsible for continued maintenance of landscaping and screening materials to remain in compliance with the requirements of this Section. Plant materials that show signs of disease or damage shall be promptly removed and replaced immediately, or within the next planting season if required by the weather. 9.14 PARK DEDICATION. The City hereby determines Park dedication fees in the amotmt of $750.00 per unit, and that such fees be paid prior to the building permit issuance, to be deposited in City Ftmd 412, Parks Capital Improvements. The calculation shall be as provided in Appendix C. 9.15 RECORD DRAWINGS. The OWNER shall provide to the CITY, upon completion of the DEVELOPER IMPROVEMENTS, a complete set of Record Drawings documenting the constructed or "as-built" condition of the DEVELOPER IMPROVEMENTS. The Record Drawings shall be submitted in form consistent with CITY requirements, and provided to the PWD within six (6) months of the completion of the DEVELOPER IMPROVEMENTS. 9.16 ADDITIONAL AGREEMENTS. A. The developer shall be limited to constructing one 70-unit Condominum building and three town home units prior to the sanitary sewer reconstruction on Central Avenue. No additional building permits will be issued until such time as construction has begun on the following: a. Sanitary Sewer Reconstruction from 47th to 51st Avenues, and b. Right turu lane construction and lane restriping on 49th Avenue as required by Anoka County. B. OWNER hereby agrees that the CITY shall not release the PLAT to the OWNER for recording until the OWNER has docmuented Land Acquisition Agreement/Easements and a Utility and Stoma Water Pond and Appurtenances Maintenance Agreement, which is in a forlTl that is acceptable to the CITY's attorney. 19 9.16 OWNER hereby agrees that the CITY shall not release the PLAT to the OWNER for recording until the OWNER obtains the Aa~oka County Highway Depal-tmentlglan approvals for the road access COlmection on 49th Avenue. 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. CITY OF COLUMBIA HEIGHTS By: ~ ~~a ii~enn e~Wy ckoff, By: Walt Fehst, Manager OWNE~R. AND DEVELOPER: ~Bruce Nede-gaa-r ~) STATE OF MINNESOTA COUNTY OF ANOKA 20 On this ~.[/~"~---~ day of ,2004, before me a Notary Public within and for said County, pers0hally appeared to me Julienne Wyckoff 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 behaff 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. i:!' ~,~ PATRICIA V. MUSCOVtTZ ~; ;(~}NOTAR¥ PUBLIC- MINNESOTa ';~'~/My Comm. Exp. Jan. 31, 2005:~ Notary Public STATE OF MINNESOTA ) ) SS. COUNTY OF ANOKA ) On this ]___q dayof ~0,~'~ ,2004, before me a Notary Public within and for said County, personally aplgeared Bruce Nedegaard, to me personally known, who being by me duly sworn, each did say that he is the {9c~ '~d o._,,.~ of New Heights Development, LLC, named in the foregoing instrmnent, and that said instrument was signed in behalf of said New Heights Development, a Minnesota Limited Licensed Corporation by authority of its ~ruce ]q~&a.~.~& and said tg~s i'de&,-~- acknowledged said instrument to be the free act an~t deed of the New H~ ~ment, LLC. NOTMY PUBUC-MINNESOTR MYCOJ~ EXPIi~ES 141-200~ Notary Public THIS INSTRUMENT DRAFTED BY: Kevin Hansen, P.E. Public Works Director/City Engineer City of Colulnbia Heights 637 38th Avenue N.E. Columbia Heights, MN 55421 763/706-3705 Jalnes Hoeft City Attorney Barna, Guzy, mad Steffen, ltd 200 Coon Rapids Boulevard Suite 400 Coon Rapids, MN 763/783-5122 21 22 EXHIBIT A LIST OF DEVELOPMENT PLANS PLAN DESCRIPTION DESIGN PLAN DA TE 1. Erosion Control and Grading Plan Humphrey Engineering 8/2/04 2. Street Plan (Public/Private) Humphrey Engineering 8/02/04 3. Utility/Site Plan (Public/Private) Humphrey Engineering 8/02/04 4. Landscape Plan Close Landscape 5/25/04 Architecture Street Light Plan Close Landscape 7/31/04 Architecture e Central Ave Sanitary Sewer Plan (47th to 51st Avenues) Humphrey Engineering 2005 EXHIBIT B DEVELOPER PUBLIC IMPROVEMENTS The items checked with "PUBLIC" below are those DEVELOPER IMPROVEMENTS that are DEVELOPER-PUBLIC IMPROVEMENTS. CHECKED COMPLETION DATE 12/31/04 X Public 12/31/04 X Public 9/31/05 12/31/04 9/31/05 9/31/05 9/31/05 X Public 9/31/05 X Public 12/31/05 IMPROVEMENT Grading Plan Utilities (Tyler Street) Street (Tyler Street) Utilities (Pla0 Streets (Plat) Landscaping Street Lighting Sidewalk (47th Avenue) Central Ave Sanitary Sewer (47th to 51st Ave) Note: Pursuant to Section 2.4, all Developer Improvements must be completed prior to occupancy of any building on Grand Central Lofts, except for the Central Avenue Sanitary Sewer, 49th Avenue Right Turn Lane, Site Landscaping and Site Street Lighting, which may be a condition subsequent. EXHIBIT C ESCROW AND PARK DEDICATION CALCULATION(S) DEVELOPER IMPROVEMENTS 1. Erosion Control/Restoration $ 40,000 2. Central Avenue Sanitary Sewer $ 291,400 3. Utilities $ 170,000 4. Public Street $ 125,000 5. Right Turn Lane/Restriping $ 20,000 6. Landscaping (incl. Retaining Walls) $ 250,000 7. Street Lighting $ 95,000 MULTIPLIED BY: 1.20 EQUALS: $1,200,000 For the above work, DEVELOPER shall post escrow* for $1~200~000. (* Form in accordance with Section 8.1 of this agreement.) Park Dedication MULTIPLIED BY: EQUALS $750.00 per unit 230 $172,500.00 in addition to the letter of credit required above, the DEVELOPER shall also deposit $25,000 in cash with the CITY contemporaneously with execution of this DEVELOPMENT CONTRACT. This $25,000 shall be to pay the CITY for engineering site 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 $25,000 not otherwise charged against the DEVELOPER for engineering inspection performed by the CITY. To the extent the engineering inspection fees, calculated according to the CITY's standard rates, exceed the $25,000 deposit, the DEVELOPER is responsible for payment of such excess within thirty (30) days after billing by the CITY. 3/9/04 4/23/04 7/7/04 7/29/04 -3-