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HomeMy WebLinkAboutContract 19791979 l V 3661419.3 INDEX TO CITY OF COLUMBIA HELGHTS DEVELOPMENT CONTRACT FOR HART LAKE ADDITION, ANOKA COUNTY, MINNESOTA CITALS~ AIZTIC'I.E 1- D~FINITIOl°dS 1.1 Terms 1.2 City of Columbia Ileibhts 1.3 Developer, Owner i.~l Plat 1.5 Development Plans 1.6 Development Contract 1.7 Council 1.$ PWD 1.9 Director of PWD 1.10 County 1.I 1. Developer Inlpravements 1.12 Developer Public hnprovements 1.13 Developer Default 1.14 Fo1-ce Majeure 1.15 Developer Warranties A. Authority I3. No Default 3G6141 X3.3 C. Present Compliance Wid1 Laws D. Carltinuing Compliance With Laws E. No Litigation F. Full Disclosure G. Two Year Warranty On Proper Work and Materials H. Obtaining Permits 1.16 City Warranties A. Authority 1.17 Formal Notice ARTICLE Z - ~~?EtIELOI'EI? T?~I'ROvE?~ENTS 2.1 Developer Improvements 2.2 Boulevard and Area Restoration 2.3 Street Maintenance 2.4 Occupancy 2.5 Approval of Contractors and Engineer 2.6 Construction 2.7 Inspection 2.8 Faithful Performance of Construction Contracts 29 City Acceptance ARTICLE 3 -RESPONSIBILITY FOR COSTS 3.1 Developer Improvement Costs 3.2 Enforcement Costs 3.3 rI'ime of Payment 3661193 ARTICLE 4 - DEVELOPER '~ARRANTTES 4.1 Statement of Developer Warranties ARTICLE 5 -CITY ~AT2RANTIES 5.1 Statement of City Warranties ARTICLE 6 - INDEMNIFICATION OF CITY 6.1 Indenulif cation of City AR'T'ICLE 7 -CITY IiEIYIEDIES UPON DEVELOPER DEFAULT 7.1 City Remedies 7.2 No Additional Waiver Implied by One Waiver 7.3 ivo Remedy Excl~.zsive 7.4 Emergency ARTICLE 8 - ESCROW DEPOSIT 8.1 Escrow Regzzirement 8.2 Eserow Release and Escrow Increase; Developer Improvements ARTICLE 9 -MISCELLANEOUS 9.1 City's Duties 9.2 No T17ird Party Recourse 9.3 Validity 9.4 Recording 9.5 Bizlding Agreement 9.6 Contract Assigmnent 9.7 Amendment az3d Waiver 9.8 Clavenling Law 3G61419.3 99 Co~~nterharts 9.10 I Ieadirlgs 9.1 I 111COnslstenCy 9.12 Access 9.I3 Landscaping 9.14 Park Dedication 9.15 Record Drawi~lgs 9.16 Additional Agreements 9.17 l~eler`ISe 01 DeVelopnlent C011t1"aCt EXHI~I i A - i.IS i i,~' a~E~%EL%IPivIE N ~ I'LAN~ ~x~~~sT~ ~ - ~vEL®~~~ p~~~.~c ~1~~~c~v~~E~v~s EXHIBIT C -ESCROW AND PARK DEDICATION CALCULATION 366141.9.3 GIT'~' ~' C'OLIIMBIA HEIGHTS E'~ELOPi~'IENT C'ONT CT FOR HART LADE A1DI~IrI'ION THIS AGREEMENT, made and entered into on the day of , 2007, by and between the GIT~' OE COLUMBIA HEIGHTS, a municipality of the State of Minnesota, (hereinafter called the CITE'}, and tl~e OWI~~R and DEVELOPER identified Izerein. f2E CITALS: WHEREAS, the DEVELOPER is requesting final approval of the PLAT; WHEREAS, the DEVELOPER leas applied to the CITY far approval of the preliminary and fznal plat and the DEVELOPMENT PLANS, and the same have been approved by tl~e CITY, nn~ cv 7 +7+.~ 4~ ~~ n~ n ~1~ ,1 ri' ~ `1 `l .~ t,x~.A~, ~~~ co11~i.~nGtiGii wit~~ ~~~u gran~ing ,~~ filial r,l~~ ~r~o ~~l ~n~ other- approvals, the CITY requires: a. the installation of a paved bitumil~ous trail on the west side of Hart 13ou1evard extending Iron 37t~' Avenue to approximately S50 feet north of 37`x' Avenue. WHEREAS, under authority granted to it, including Miiuiesota Statutes Chapters 412, 429 and 462, the COUNCIL has agreed to approve tl~e DEVELOPMENT PLANS on the following conditions: 1. That the DEVELOPER enter into this DEVELOPMENT CONTRACT, which contract defines the work which the DEVELOPER w~dertalces to complete within fl1e 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 i~~stallation of such improvements within the period specified by the CITY. WHFRF,AS, the DEVET_,OPER 13as tiled four (4) complete sets of the .DEVELOPMENT PLANS with the CITY; WHEI +"AS, 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, T . EI2EFORE, 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: 3661419.3 ARTICLE 1 DEFINITIONS 1.1 TERMS. The following terms, unless elsewhere defined specifically in the DEVELOPMENT CONTRACT, shall have the following meanings as set foz~th below. 1.2 CITY. "CITY" meads the City of Columbia Heights, a Minnesota municipal corporation. 1.3 DEVELOPER: OWNER.. "DEVELOPER -OWNER" means Pratt rdv~vay, LLC, a Minnesota limited liability company d/b/a Pratt Ordway PraPerties. P.~ PLAT. "PLAT" means the plat of HART LAKE ADDITION, in the CITY of Columbia Heights, Anoka County, Minnesota. 1.~ DEVELOPMENT PLANS. "DEVELOPMENT PLANS" means all tllase plans, drawings, specifications and surveys identified and checked on the attached EXHiI3IT `A,' algid licreby ilicorporated by refere~,ce a1:d made a cart o_f thls DEVELOPMENT CONTRACT. 1.6 DEVELOPMENT CONT CT. "DEVELOPMENT CONTRAC"I'" means this instant contract by and among the CITY, OWNER and DEVELOPER. 1.7 COUNCIL. "COUNCIL" means the Coulzcil of the CITY of Columbia Heights. 1.$ PWD. "PWD" means the Public Works Department of the CITY of Columbia heights. 1.9 DIRECTOR OF PWD. "DIRECTOR OF PWD" means the Director of Public Works Departme~at of the CITY of C'olusnbia Heights and his delegates. 1.10 COUNTY. "COUNTY" means Anoka County, Minnesota. 1.11 DEVELOPER IMPROVEMENTS. ``DEVELOPER IMPROVEMENTS" means anal il~cludes all the improvements identified on the attached EXHIBIT `B.' 1.12 DEVELOPER PUk3LIC 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 arc to be approved and later accepted by the CITY. DF.,VELOPER PUBLIC IMPROVEMENTS are part of DEVELOPER IMPROVEMENTS. 3E>(i1419.3 2 1.13 DEVELOPER DEFAULT. "DEVELOPER DEFAULT" means and includes, jointly and severally, any of the following or any eozmbination thereof: a) failure by the DEVELOPER to timely pay tl2e CITY any money reduired to be paid under the DEVELOPMENT CONTRACT; b j failure by the DEVELOPER to timely col2struct the DEVELOPER PUBLIC I'vIPROVEMENTS according to the DEVELOPMENT PLANS and the CITY standards al~d speeificatiol2s; c} failure by the DEVELOPER to observe ar perforn any covenant, condition, obligatiol2 ar agreement on its part to be observed or pel°fol~ned under tl2is DEVELOPMENT CONTRACT; d) breacl2 of the DEVELOPER WARRANTIES. 2.1.4 FORCE l~/IAJCURE. "FORCE MAJEURE" means acts of Clod, including, but riot limited to floods, ice storms, blizzards, tornadoes, landslides, lightning and eartl2Cltlal{eS ~b!!t flat li]Clilding reasanably a12t1clpated ~7Pat12er eanditial2s for the geogra.Phie area), riots, insur~•ections, war or civil disorder affectil2g the perfarlnance of u~ark, blockades, power or other utility failures, and fires or explosions. 1.15 DEVELOPER WAR 1~TTIES. "DEVELOPER WARRANTIES" means that the Developer 12ereby warrants and represents the following: A. AUTHORITY. Developer is a limited liability company, validly existing a12d in good standing under the laws of the State of Mim2esota. DEVELOPER has the right, power, legal capacity and authority to enter into and perfalam its obligations under this DEVELOPMENT CONTRACT, and no approvals ar consents of any persons are necessary in connection with the authority of DEVELOPER to enter into and perform its obligations under this DEVELOPMENT CONTRACT. B. 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 wl2ich would affect performance under this DEVELOPMENT CONTRACT. DEVELOPER is 12ot a pal-ty to or bound by any mortgage; lien, lease, agreement, instrument, order, judgment ar deereo wl2ich would prohibit the executiol2 ar perfol-n2ance of this DEVELOPMENT CONTRACT by DEVELOPER or prolibit any of the transaetiol2s provided for in fllis DEVELOPMENT CONTRACT. C. 1' EDIT CO PLIAI'~CE IT LA S® DEVELOPER has complied with. and is not i~l violation of applicable federal, state or local 3661419.3 3 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. D. 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, enviromnental or other law, ordinance or regulation) affecting the PLAT and the DEVELOPMENT PLANS and the DEVELOPER IMPROVEMENTS. E. NO LITIGATION. To the best of Developer's knowledge, there is no suit, action, arbiiratic~n or iegal, adn~ii~istrative or other proceeding or govel-~zmental investigation pending, or threatened against ar affecting DEVELOPER, except as disclosed in writing to the CITY, or the PLAT, or the DEVELOPMENT PLANS or the DEVELOPER Iii%IpI?nVE~~IENTS, DEVE.L.OPE,R is ilot in material default with respect to any order, writ, injunction or decree of any federal, state, local or foreign court, department, agency or instrumentality. F. FULL DISCLOSURE. None of the representations or warranties made by DEVELOPER or made in ally 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. G. TWO YEAR WARRANTY ON PROPER WORK AND MATERIALS. The DEVELOPER wan ants all work required to be performed by it under Bus DEVELOPMENT CONTRACT against poor material and faulty warlcmanship 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 die CITY within thirty (30) days of notification. H. OBTAINING PERMITS. The DEVELOPER shall obtain in a timely manner and pay for all required permits, licenses a11d approvals, and shall meet; in a timely manner, all requirements of all applicable, local, state and federal laws and regulations wl2ich must be obtained or met before the DEVELOPER IMPROVEMENTS may be lawfully constructed. 1.16 CITY WARRANTEES. "CITY WARRANTIES" means that the CITY hereby wai-~•ants and represents as follows: 3661419.3 a. A. ALTTIIO TY. CITY is a gnunieipal eo~•poration duly incorporated and validly existing in good standing under the laws of the State of Miix~lesota. CITY has the right, power, Iegal capacity and authority to enter into alzd perform its obligations snider this DEVELOPMENT CONTRACT. 1.1.7 IaORMAL 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 Ur~~ited States Mail and ixi a sealed envelope, by certified mail, return receipt requested, with postage and postal charges prepaid, addressed as follows: If to CI'T'Y: City of Columbia .Heights Attention: City Manager 590 40"' Avenue N.E. Columbia Heights, MN 55413 If to DEVELOPER Pratt Ordway Properties cio Leonard vV. Pratt 3500 Willow Fake Saulevard, Suite 100 Vadnais Heights, MN 55110 or to such other address as the party to whom this notice is addressed shall have previausly designated by notiee 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. ARTICLE 2 DEVELOPER IMPROVEMENTS 2.1 DEVELOPER IMPROVEMENTS. The DEVELOPER shall install, at its own cost, the DEVELOPER IMPROVEMENTS in accordance with the DEVELOPMENT PLANS. Tl1e DEVELOPER IMPROVEMENTS shall be completed by tl~e dates shown on EXHIBIT `B' subject to Force Maieure, 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 contxact shall be deemed to be automatically extended until such time as the DEVEI_~OPER IMPROVEMENTS arc cotnpieted to the CITY's reasonable satisfaction. 36614193 ~ 2.2 BOITLEVA ANI3 A A RESTO TION. The DEVELOPER shall lay cultured sod or hydro seed in all boulevards withii 21 days of tlxe completion of street related improvements and restore all other areas disturbed by the development grading operation in accordance with the approved erosion control plan, over the entire PLAT. 2.3 STREET iVIAINTENANCE. The DEVELOPER shall cleat°, on a daily basis, any soil, earth or debris from the streets and uretlands 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 nuxing consti-rlction or excavation debris, ar earth. in it, and repair to the CITY's specifications any damage to bittu~~inous surfacing resulting from the use of construction equipment. 2.4 OCCUPANCY. Unless otherwise agreed to in writing by the DIRI~C"I'OR OF PtUD, no certificate of occupancy and no occupancy of any building in tl~e PLAT shall occur until the DEVELOPER IMPROVEMENTS have been installed. Unless otherwise agreed to in writing by the DIRECTOR OF PWD, this provision excludes Site Landscaping and Site Street Lighting. 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, which approval shall not be unreasonably withheld; provided however that the CITY hereby specifically approves Httmph.2°ey Engi?~~eering, for such purposes. 2.6 CONSTRUCTION. The constl°uction, installation, materials and equipment related to DEVELOPER PUBLIC IMPROVEMENTS shall be in accordance with the DEVELOPMENT PLANS. The DEVELOPER shall cause the contractors to fi~rnish the PWD with a written schedule of proposed operations, subcontractors and n2aterial suppliers, at least five (5} days prior to commencement of construction work. The DEVELOPER. s11all notify the CITY in writing, coordinate and hold apre-construction conference with all affected parties at least three (3} days prior to stal-li~~g construction of alry 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 oppo~-t~u~nity to inspect sL~cl~ 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 i?~lprovenlents. Failure to notify the CITY to allow it to inspect said worlfi shall 3(>(1414.3 result in the CITY'S right pursuant to Article 8 to withhold the release of any portion of the escrow amount resulting from woa-k being performed without the opporhinity for adequate CITY inspection. 2.8 FAITHFITL PERFORMANCI~ OF CONSTRI7CTION CONTRACTS. The DEVELOPER shall fully and faithfully comply with all terms of any and all contracts entered into by the DEVELOPER for the installation and construction of all of the DEVELOPER PUBLIC IMPROVEMENTS; and the DEVELOPER sha11 obtain lien waivers. Within thu-ty (30) days after FORMAL NOTICE, the DEVELOPER agrees to repair or replace, as directed by tl~e CITY and at the DEVELOPER's sole cost and expense, any wort. or materials that within two (2) years after acceptance of the DEVELOPER PUBLIC IMPROVEMENTS by the CITY becomes defective in the commercially reasonable judgment of the CITY. ~.9 CITY ACCEPTANCE. The DEVELOPER shall give FORMAL NO'I'1CE to the CITY within tI~-ty (30} days once DEVELOPER PUBLIC IMPROVEMENTS have been. completed in accordance with. this DEVELOPMENT CONTRACT and tl~e ordinances, CITY standards anal specifications and the DE VELOP?ViENT PLf~2~tS. The CITY ahall then inspect the DEVELOPER PUBLIC IMPROVEMENTS and notify the DEVELOPER of any DEVELOPER PUBLIC IMPROVEMENTS that do not so conform. Upon compliance w=ith this DEVELOPMENT CONTRACT and CITY ordinances, standards and specifications, and the DEVELOPMENT PLANS, the DEVELOPER PUBLIC IMPROVEMENTS shall become the property of tl~e 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 conform, FORMAL NOTICE shall. be given. to the DEVELOPER of the need for repair or replacement. ARTICLE 3 RESPONSIBILITY FOR COSTS 3.1 IEVELOPER IlVIPOVEENT COSTS. The DEVELOPER shall pay for the DEVELOPER IMPROVEMENTS; that is, all costs of persons doing work or fur~~shing skills, tools, machinery or materials, or insurance premiums or equipment ax supplies and all just claims for the same; and the CITY shall be under no obligation to pay the contractor or ally subcontractor any sum whatsoever on account thereof, whether or not the CITY shall have approved the contract or subcontract. 3.2 ENFORCEMENT COSTS. The DEVELOPER sha11 pay the CITY ar costs incurred in the enforcement of this DEVELOPMENT CONTRACT, inch~ding engineering and attorneys' fees. 36G1414.3 3.3 TIME OE PAYMENT. The DEVELOPER shall pay all bills from 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. ARTICLE 4 DEVELOPER WARRANTIES -I.1 STATEMENT OF DEVELOPER WAR NTIES. TI~e Developer hereby makes and states the DEVELOPER WARRANTIES. ARTICLE 5 CITY WARRANTIES 5.1 STATEMENT OF CITY WARRANTIES. The CITY hereby makes and states the CITY WARRANTIES. ARTICLE 6 INDEMNIFICATION 6.I INDEMNIFICATION OF TFIE 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, casts, expenses, obligations, Liabilities, damages, recoveries, and deficiencies, izlcluding interest, penalties and attoi-~1eys' fees, that the CLTY incurs or suffers, which 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 perform any covenant, conditions, obligation or agreement on its part to be observed or performed under this DEVELOPMENT CONTRACT; d} failure by the DEVELOPER to pay contractors, subcontractors, laborers, or materialmen; e) failure by the DEVELOPER to pay for materials; I) failure to obtain the necessary permits and authorizations to construct the DEVELOPER PUBLIC hVIPROVEMENTS; ~~} e~onstri~~ction of the DEVELOPER PUBLIC IMPROVEMENTS, 366141!3 ARTICLE 7 CITY R:FNIEDIES UP~IV EVEL.OI'ER DEFr~ULT 7.1 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, specifying the nature of the asserted default, and the DEVELOPER shall have to cure the DEVELOPER DEFAULT with>11 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 tune 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 i~npraetical to cure the DEVELOPE:EZ DEFAULT withili the CURE PERIOD. If the DEVELOPER, after FORMAL NOTICE to it by the CITY, does not cure the DEVELOPER DEFAULT wit1~1 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. a) 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; 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 ineuned by the CITY. In the altet-~zative, 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 hearing requirements 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 Mize. Stat. 429.081. 3661419.3 9 7.2 l°~O ADDITI~3NAL WAIVER IIt~PLIED DY OI~lE WAIVER. In the event any agreement contained in this DEVELOPl~%1ENT CONTRACrI is breached by the DEVELOPER and thereafter waived in writing by the CITY, such waiver shall be Linuted 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. 7.3 1''~O REMEDS' 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; provided however that the CITY shall not have the power to exercise both the remedy provided by Section 7.1(c) and, concurrently or sequentially, the remedy provided by Section %,1(e j, to the extent that the remedy in Section 7.1(c} provides reimbursement to the CITY for any costs and expenses incurred by the CITY. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or l_ril 1__ a + t.. ,. +t~.~„-_~.~f 4 1 7, a„ „ y~,P~• av ~.~~ Slldll uG %OilStrileu to vc a waiver ui~iCvi, buy alij' sUCii r1g,~t u.~d NC 112 1 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. 7.4 EIVIEIZGENCY. Notwithstanding dle 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 tlae DEVELOPER DEFAULT, in the event of an emergency as determined by the Director of PWD, resulting from tl~e 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 aforty-eight (48) hour period to cure the DEVELOPER DEFAULT. In such case, the DEVELOPER shall within this-ty (30) days after written billing by the CITY reimburse the CITY for any and all costs incurred by the CITY. hi the alternative, the CITY may, in whole or in part, specially assess the costs and expenses incun•ed by the CITY; and the DEVELOPER anal 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 from, 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 1~ereby waive any appeal rights up to the amount indicated on EXHIBIT `C' pursuant to Mirm. Stat. 429.081. 3661419.3 1 ~ ARTICLE ~ ES~'ROW DEPOSIT S.1 ESC'RO~V 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,' 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 bar~lti. 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 i~~ full force and effect until released by the CITY pursuant to Sectian 8.2 below. The irrevocable letter of credit shall be for a ter•~n ea~ding December 31St, 2008. In the alternative, the letter of credit may be far a one year term provided it is automatically renewable for successive one year periods front tl~e present or any future expiration dates with a final expiration date of December 31St, 2008, 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 tl~e CITY if the bank elects not to renew for an additional period. The irrevocable- letter of credit shall seoure compliance by the DEVELOPER with the terms of this DEVELOPMENT CONTRACT. The CITY naay draw down on the irrevocable letter of credit ar cash deposit, without any further notice than that provided ii1 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, 2008. 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. 8.2 ESCROW RELEASE AND ESCROW INCREASE; DEVELOPER IMPROVEMENTS. Periodically, upon the DEVELOPER's written request anal 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 pe~•cent (10%) of that portion of the irrevocable letter of credit, or cash deposit, for those specific completed iFnpravements shall be held until acceptance by the CITY and expiration of the warranty period under Section 1.15 hereof; m the alternative, the DEVELOPER play post a bond satisfactory to the CITY with respect to the final ten percent (10%). 3661419.3 1 I If it is determined by the CITY that the DEVELOPMF_,NT 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 past 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 reasonably 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, ul the alteniative, require the concealed condition to be exposed for inspection purposes. ARTICLE 9 MISCELLANEOUS 9 I CI"~h~"S DUTIES The terms of this 1EVELOPMENT CONTRACT shall not be considered an affirmative duty upon the CITY to complete any DEVELOPMENT IMPROVEMENTS. ~ '' LTG T'~FII'2I; vAE~v REC€~UPCE. T~1'rd ~~~-~;°s shall have no recourse against .~./ 1 1 1 41 2 \I.J 1 1.11 1,JtA1. t11. the CITY under this DEVELOPMENT CONTRACT. 9.3 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. 9.4 REC®RDING. The DEVELOPMENT CONTRACT and PLAT shall. be recorded with the COUNTY Recorder anal the DEVELOPER shall provide anal execute any and all documents necessary to implement the recording. 9.5 SINllING AGREEMENT. The parties mutually recognize and agree that all terns and conditions of this recordable DEVELOPMENT CONTRACT shall run with the PLAT and shall be binding upon the heirs, successors, administrators and assigns of the DEVELOPER. 9.6 CONTRACT ASSIGNIVIENT. The parties agree and understand that tl~e Developer intends to sell and transfer Lot 1, Block 1 of the Plat to CLP Development, LLC, d/b/a Comforts of home ("Comforts of Home") and Lot 2, Block 1 of the Plat to the CITY. Comforts of Flome and the CITY will be assuming most of the DEVELOPER'S responsibilities and obligations under this Development Agreement and the DEVELOPER will be released from any such responsibilities and obligations so assigned. The CITY hereby consents to such sale, transfer alld release of DEVELOPER. The DEVF.,LOPER may not otherwise assign any portion of this DEVELOPMENT CONTRACT without the written permission of the COITNCIL. 3661419.3 12 9.7 A~NI)MIi±.1~T AND ~VAIV~12. 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 t1~e obligations of another, waive any inaeci~racies in representations by another contained in this DEVELOPMENT CONTRACT or in any doctument 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 and= 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. 9.8 GOVEIaNING LA~V. This DEVELOPMENT CONTRACT shall be governed by and constn.~ed in accordance with the laws of the State of Mimlesota. 9.9 COITNTJEL2PARTS. This DEVELOPMENT CONTRACT may be executed in any ~?cumber of ool,urterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 9.10 11~ADINGS. The subject headings of the paragraphs and subparagraphs of this DEVELOPMENT CONTRACT are included for purposes of convenience only, and shall nat affect the construction of interpretation of any of its provisions. 9.11 1liTCQNSISTENCY. 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. 9.12 A~C'C~SS. The DEVELOPER hereby grants to the CITY, its agents, employees, off cers, and contractors a license to enter the PLAT to perforn all inspections deemed appropriate by the CITY dt~iring the installation. of DEVELOPER IMPROVEMENTS by the DEVELOPER. 9.13 LANT3SCAPING. h~stallcrtzan ca~~c~ ~-1azr~tefzance. 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. conjunction with site development of each lot within the Plat and prior to issuance of a final certificate of occupancy far any bililding located on such Iat. 3f61419.3 1 b} A letter of credit or other security as acceptable to the CITY shall be deposited with tl~e Director of Public Works, in an amount equal to ten percent (10%) of the estimated cost of landscaping, fencing and/or screening. (Such amount is >l7chided in the amount set forth on Exhibit C far Landscaping.) The letter of credit, or portions thereof, shall be fo1-feited to maintain and/o1° replace materials for a period of time to include at least two (2) growing seasons, as detuled by MnDOT specifications. A portion of the letter of credit 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 prampthy removed and replaced immediately, ar within the next planting season if required by the weather. d) A11 DEVELOPMENT turf >1-rigation systems shall include rain detecting jiiZitafi ueviceS ~a control lrrlga~lari f'uiietiali curing rVe~ ~r~:at er. GI2~ cot~se~vatian n2ensrs~°e} 9.1.4 PARK DEDICATION. The CITY hereby determines Parlc dedication fees in the amount of $26,890, and that such fees be paid at Final Plat Approval by the CITY Council, to be deposited in CITY Fluid 412, Poi°ks Capital hnprovements. 9.1~ 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 electronic and hard copy form consistent with CITY requirements, and provided to the PWD within six (6) months of the completion of the DEVELOPER IMPROVEMENTS. Additionally, the OWNER shall include in the Record Drawings GPS Data of all sanitary sewer and water main service locations at the service extensions or property lines. The GPS Data shall include X, Y & Z coordinate data consistent with CITY requirements. 9.16 ADDITIONAL AGREEI~IENTS. A. The OWNER and the CITY hereby agree that the maintel~ance costs of the storm water ponding located at the nal-thwest corner of 371' Avenue and Hart Boulevard shall be shared between the OWNERS of Lots 1 and 2, Block 1 of the Plat on a contributory runoff split using CN numbers far each lot (58% for IAt 1 and 42% FOR L,ot 2 accordil•1g to the Humphrey Engineering calcuhatiol~s of h/11/2007}. Necessary storm water maintenance activities shall be conducted. ar caused to be conducted 17y the CITY, with said costs billed to the OWNF_,RS of Lots 1 and 2, Bloclc I of the Plat, payable within 30 3661419.3 1 ~ days. In order to enfarce the provisions of this Section, and real. property transfer documents shall be subject to the reasonable review and approval of the City Attorney to assure that such documents include a requirement for said necessary stoi~n water pond maintenance and reimbursement to the CITY. B. The private pond located within the Plat shall be maintained by the OWNERS of Lots 1 and 2, Block 1 of the Plat under a separate Reciprocal Easement for Surface Water Drainage with the maintenance costs being shared using CN numbers :for each lot (94% for Lot 1 anal 6% far Lot 2 according to the Ilulnpllrey Engineering calculations of 1/11/2007). C, The OWNER and the CITY hereby agree to the following: a. The CITY shall remove the existing street sections of the Hart Boulevard from 345 feet north. of 37`1' Avenue to the northerly plat line and provide restoration and surface drainage meeting the requirements of the CITY Engineer. The CITY shall indemnify and hold DEVELOPER harmless from any and all liabilities far adverse e1iVlror3mentai eo]"tdltror2S, if ally, wlirCii may be ericortntered durr2lg the foregoing removals. b. A cul-de-sac shall be constructed by the CITY in Hart $oulevard at the drive access to Lot 2. D. The OWNER and the CITY hereby agree that item 9.16C related to Hart Boulevard is contingent upon. all necessary approvals by the CITY for the vacation of Hart Boulevard. E. The DEVELOPER shall compensate the CITY for t11e cost of such removal, restoration and installation of the cul-de-sac, in an amount not to exceed $25,000.00, as set forth in line 6 on Exhibit C. 9,17 IYELEASE QF DEVEI.OPIVI>CI`iT COli~~i'1~~T. 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 con~pletsd and said warranties have expired. 3661419.3 15 IN WITNESS WILEREOF, the parties have executed this DFVELOi'MENT CONTRACT. CITY Off' C~LUMB ~-II.~~ITS its r T~~'~ f~LF 1~IN1~I~±,~~T~ 1 ss. C~~JNTY ®~' ANf3KA } STATE Off' iVIINNES~'TA ) SS. COUNTY Q+F ANOKA } 3661419.3 ] (j ~'HZS INSTR>fJi'VYENT I~12A;FT~D ~3Y: Kevin Hansen. P.E. CITY Engineer, & Jeff Sargent CITY Planner CITY of Columbia Heights 590 40t1' Avenue N.E. Cohu~~~ia Heights, ~ 55421 763/706-3600 James Hoeft City Attorney Barra, Guzy, and Steffen, Itd 200 Coon Rapids Boulevard Suite 400 Coon Rapids, MN 763/783-5122 3661119.3 17 EIII'BIT A LIST' Gl? DEVELOP1VlEN'I, PLAl`~S HART BOULEVARD ADDITION PLAN DESCRIPTION DESIGN PLAN DA TE 1. Development Plat 2. Erosian Control and Grading Plan 12/8iQ6 (including the project SPPP) Cornerstone Land Surveying Humphrey Engineering 3. Street Plan (Public) i2/8J06 -l. Utility/Site Plan (Public/Private) 12/8/06 5. Landscape Plan 1.2/8/06 6. Sta•eet Light Plan 1z/8/o6 I-Imphrey Engineering Humphrey Engineering Humphrey Engineering Humphrey Engineering 3661419.3 I EXIIIBIT B DEVELOPER PUBLIC IP®VEMENTS The items checked with "PUBLIC" below are those DEVELOPER InZPO~EENTS that are DEVELOPER-PUBLIC IMPROVEMENTS. CHECKED IMPROVEMENT Grading/Removals/Erosion Control Plan ~ 1'EI{Jlic X Public (Hart Blvd} lJ t;iiiltg E's ~~Ym star liiaiaa rsn Hart Blvd R®} IJtiPities (Storm Sewer) Streets (Plat -Public) Landscaping Street Lighting Note: Pursuant to Section 2.-1, all Developer Improvements must be completed prior to the Bnal occupancy of Comforts of home. Except as provided in Section 9.1.3 a) or unless otherwise agreed to by the CITE', this provision sha11 exclude Site Landscaping and Site Street Lighting. 3E3ti1419.3 ~ 4 E~I~II3I'I' C ESCROW AND PARR DEDICA'~ION CALCULATION(S) DEVELOPER IMPROVEMENT'S 1. Erosion Control/Restoration (situ $ 25,400 2. Utilities (Water Main, Storan Sewer c4i pond) $ 130,000 3. Public Street Cannections S 1.0,000 ~. Landscaping (incl. Retaining Walls} ~ 80,000 5. Street Lighting S 15,000 6. Mart Rlvd Road Reanoval/Restoration and Cul-de-Sac $ 25,000 285,000 MUL'1~IPLIED I34': 1.25 EQUALS: S 356.250 For the above work, DEVELOPER shall post escrowY for ~ 356,250. (''~ Form in accordance with Section 8.1 of this agreement.) 1. Park Dedication $ 26,890 366]419.3 ~~