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HomeMy WebLinkAboutContract 1878 SECOND AMENDMENT TO CONTRACT FOR PRIVATE REDEVELOPMENT THIS AGREEMENT, made on or as of the 22nd day of November 2005, by and between COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORlTY, 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"). L 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 oy 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 COlillty, Minnesota between the Redeveloper and the City of Columbia Heights ("City"), dated September 3, 2004 (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, Authority and Redeveloper entered into a First Amendment to Contract for Private Redevelopment dated as of April 26, 2005, which provided for acquisition of certain easements required to construct a public road serving the Redevelopment Property: and WHEREAS, the Authority and Redeveloper have detennined a need to acquire certain additional temporary and permanent easements on certain property adjacent to the Redevelopment Property in order to construct a public road within the plat; 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. The Contract is amended add new Section 3.1A as follows: (a) 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 street running from 47th Avenue to 49th Avenue. Further, Redeveloper SJB-271119vl CL205-20 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 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. (b) 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 sirnilar 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. (c) 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. (d) 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 tmder 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. (e) 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 B\sp~t~jl BYItSEX~~Fehst STATE OF MINNESOTA ) ) SS. COUNTYOFANOKA ) The foregoing instrument was acknowledged before me this .;;l-c2day of AfO\{~-'i:..J\..., 2005, byJ:;>..::-S, ffi.\}f't.~n .-S '(' and l....,Ja...\~" \Z. Fek:>t, the President and Executive Director of the Columbia Heights conomlC Development Authonty, a publIc body politIc and corporate, on behalf of the Authority. .. CHERYl A. BAKKEN i NOTARY PUBUC -MINNESOTA MY COMMISSION EXPlRE51-31-2007 iI Notary Public . ~ W~~~ SJB-261749v2 CL205-20 3 NE HTS DEVELOPMEN , LC 1 I I I By Its STATE OF MINNESOTA ) ) SS. COUNTY OF Anoka ) The foregoing instrument was acknowledged before me this d-Ol day of )JOVef~, 2005 by .e,V'\.jc~ N~B1~' the ~"'~~+ -Th%,\(,'1 e..1/ of New Heights Development, LLC, a Minnesota limitedlia lhty company, on behalf of the company. .. CHERYl.. ABAJ(f(EN I NOTARYPUBUC-MINNESOTA MY COMMISSION EXPIRES 1-31-2007 II ~:~ 4-~L Notary Public I III SJB-261749v2 CL205-20 4 EXHmIT A TO mRSTAMENDMffiNTTOCONTRACTFORPIDVATEREDEVELOPMffiNT Temporary Construction Easement and Permanent Street Right of Way Easement PARCEL B: That part ofthe NWl/4 of the SWII4 of Section 25, Township 30, Range 24, Anoka County, Minnesota, described as follows: Commencing at a point on the west line of said NWl/4 ofthe SWII4 383.00 feet south from the northwest comer of said NWl/4 ofthe SWl/4; thence East at right angles to said West line a distance of 550.00 feet; thence South and parallel with said West line a distance of 60.15 feet; thence West at right angles a distance of 195.67 feet; thence South and parallel to said West line a distance of 89.85 feet; thence West at right angles a distance of354.83 feet to said West line of said NWl/4 of the SWl/4; thence North along said West line a distance of 150.00 feet to the actual point of beginning. Which lies Easterly of the following described lines: Commencing at the northwest comer of OUTLOT E, GRAND CENTRAL LOFTS, Anoka County, Minnesota; thence S 89035' 12" E, along the north line of said Outlot E, a distance of 112.12 feet to the point of beginning of the lines to be described; thence N 26002'39" E, a distance of20.67 feet; thence northerly along a tangential curve, concave to the west, having a radius of250.00 feet, a central angle of25037'51", a distance of111.84 feet and there terminating. Together with a 25.00 foot wide temporary construction easement, the easterly line of which is the above described lines. SJB-261749v2 CL205-20 A-I