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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 ~~