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HomeMy WebLinkAboutContract 1979 updateiq-~ DEVELOPMENT CONTR;.ACT FOR PLAT OF HART LAKE ADDITION T A ! ~l1T TATrT'V 1~ /fT1~T1~T~ C !l'T' A - ~ Updated: 09/22/08 -I- INDEX TO CITY OF COLUMBIA HEIGHTS DEVELOPMENT CONTRACT FOR HART LAKE ADDITION, ANONti COUNT4', T~IFIi`ZNESOTA RECITALS ARTICLE 1-DEFINITIONS 1.1 Terms 1.2 City of Columbia Heights 1.3 Developer, Owner 1.4 Plat 1.5 Development Plans 1.6 Development Contract 1.7 Council 1.8 PWD 1.9 Director of PWD 1.10 County 1.11 Developer Improvements 1.12 Developer Public Improvements 1.13 Developer Default 1.14 Farce Majeure 1.15 Developer Warranties A. Authority B. No Default _2_ C. Present Compliance With Laws D. Continuing Compliance With Laws E. No Litigation F. Full Disclosure G. Two Year Warranty On Proper Work and Materials H. Obtaining Permits 1.16 City Warranties A. Authority 1.17 Formal Notice ARTICLE 2 -DEVELOPER IMPROVEMENTS 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 2.9 City Acceptance ARTICLE 3 -RESPONSIBILITY FOR COSTS 3.1 Developer Improvement Costs 3.2 Enforcement Costs -3- 3.3 Time of Payment ARTICLE 4 -DEVELOPER WARRANTIES 4.1 Statement of Developer Warranties ARTICLE 5 -CITY WARRANTIES 5.1 Statement of City Warranties ARTICLE 6 -INDEMNIFICATION OF CITY 6.1 Indemnification of City ARTICLE 7 -CITY REMEDIES UPON DEVELOPER DEFAULT 7.1 City Remedies ?02 No Additional Waiver Implied by One Waiver 7.3 No Remedy Exclusive 7.4 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 Assignment 9.7 Amendment and `Jv'aiver 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 -5- CITY OF COLUMBIA HEIGHTS DEVELOPMENT CONTRACT FOR HART LAKE ADDITION THIS AGREEMENT, made and entered into on the day of , 2008, 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 final approval of the PLAT; WHEREAS, the DEVELOPER has applied to the CITY for approval of the preliminary and final plat and the DEVELOPMENT PLANS, and the same have been approved by the CITY, WHEREAS, in conjunction with the granting of final plat approval and other approvals, the CITY requires: a. the installation of waved bituminous trail on the west side of Hart Boulevard extendin from 'i7t~' AvennP to annrnximately SSn feet north of 37t~' Avenue. WHEREAS, under authority granted to it, including Minnesota Statutes Chapters 412, 429 and 462, the COQ 1NCIL has agreed to approve the DEVELOPMENT PLANS on the following conditions: I. That the DEVELOPER enter into this DEVELOPMENT CONTRACT, which contract defines the work which the DEVELOPER undertakes to complete within the PLAT; AND 2. The DEVELOPER shall provide an irrevocable letter of credit, or cash deposit, in the amount and with conditions satisfactory to the CITY, providing for the actual construction and installation of such improvements within the period specified by the CITY. WHEREAS, the DEVELOPER has filed four (4) complete sets of the DEVELOPMENT PLANS with the CITY; WHEREAS, the DEVELOPMENT PLANS have been prepared by a registered professional engineer and have been submitted to and approved by the DIRECTOR OF THE PWD. NOW, THEREFORE, subject to the terms and conditions of this DEVELOPMENT CONTRACT and in reliance upon the representations, warranties and covenants of the parties herein contained, the CITY, OWNER and DEVELOPER agree as follows: -6- ARTICLE L DEFINITIONS 1.1 TERMS. The fallowing terms, unless elsewhere defined specifically in the DEVELOPMENT CONTP~ACT, shall have the following meanings as set forth below. 1.2 CITY. "CITY" means the City of Columbia Heights, a Minnesota municipal corporation. 1.3 DEVELOPER: OWNER. BUILDER. "DEVELOPER -OWNER" means Pratt Ordway Properties, a Minnesota LLC. 1.4 PLAT. "PLAT" means the plat of HART LAKE ADDITION, in the City of Columbia Heights, Anoka County, Minnesota. 1.5 DEVELOPMENT PLANS. "DEVELOPMENT PLANS" means all those plans, drawings, specifications and surveys identified and checked on the attached EXHIBIT `A,' and hereby incorporated by reference and made a part of this DEVELOPMENT CONTRACT. 1.6 DEVELOPMENT CONTRACT. "DEVELOPMENT CONTRACT" means this instant contract by and among the CITY, OWNER and DEVELOPER. 1.7 COUNCIL. "COUNCIL" means the Council of the City of Columbia Heights. 1.8 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 Department of the City of Columbia Heights and his delegates. 1.10 COUNTY. "COUNTY" means Anoka County, Minnesota. 1.11 DEVELOPER IMPROVEMENTS. "DEVELOPER IMPROVEMENTS" means and includes all the improvements identified on the attached EXHIBIT `B.' 1.12 DEVELOPER PUBLIC IMPROVEMENTS. "DEVELOPER PUBLIC IMPROVEMENTS" means and includes, jointly and severally, all the improvements identified and checked on the attached Exhibit B that are further labeled "public". DEVELOPER PUBLIC IMPROVEMENTS are improvements to be constructed by the DEVELOPER within public right-of--way and which are to be approved and later accepted by the CITY. DEVELOPER PUBLIC IMPROVEMENTS are part of DEVELOPER IMPROVEMENTS. 1.13 DEVELOPER DEFAULT. "DEVELOPER DEFAULT" means and includes, jointly and severally, any of the following or any combination thereof: 7- a) 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 DEVELOPEP~ PLTBLIC IMPROVEMENTS according to the DEVELOPMENT PLANS and the CITY standards and specifications; c) failure by the DEVELOPER to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this DEVELOPMENT CONTRACT; d) breach of the DEVELOPER WARRANTIES. 1.14 FORCE MAJEURE. "FORCE MAJEURE" means acts of God, including, but not limited to floods, ice storms, blizzards, tornadoes, landslides, lightning and earthquakes (but not including reasonably anticipated weather conditions for the geographic area), riots, insurrections, war or civil disorder affecting the performance of work, blockades, power or other utility failures, and fires or explosions. 1.15 DEVELOPER WARRANTIES. "DEVELOPER WARRANTIES" means that the Developer hereby warrants and represents the following: A. AUTHORITY. Developer is a corporation, validly existing and in good standing under the laws of the State of Minnesota. DEVELOPER has the right, power, legal capacity and authority to enter into and perform its obligations under this DEVELOPMENT CONTRACT, and no approvals or consents of any persons are necessary in connection with the authority of DEVELOPER to enter into and perform its obligations under this DEVELOPMENT CONTRACT. 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 which would affect performance under this DEVELOPMENT CONTRACT. DEVELOPER is not a party to or bound by any mortgage, lien, lease, agreement, instrument, order, judgment or decree which would prohibit the execution or performance of this DEVELOPMENT CONTRACT by DEVELOPER or prohibit any of the transactions provided far in this DEVELOPMENT CONTRACT. C. PRESENT COMPLIANCE WITH LAWS. DEVELOPER has complied with and is not in violation of applicable federal, state or local statutes, laws, and regulations (including, without limitation, permits and licenses and any applicable zoning, environmental or other law, ordinance or regulation} affecting the PLAT and the DEVELOPMENT PLANS and the DEVELOPER _g_ IMPROVEMENTS; and DEVELOPER is not aware of any pending or threatened claim of any such violation. D. CONTINUING COMPLIANCE WITH LAWS. DEVELOPER will comply avith all applicable federal, state and Ioeal 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. E. NO LITIGATION. To the best of Developer's knowledge, there is no suit, action, arbitration or legal, administrative or other proceeding or governmental investigation pending, or threatened against or affecting DEVELOPER, except as disclosed in writing to the City, or the PLAT, or the DEVELOPMENT PLANS or the DEVELOPER IMPROVEMENTS. DEVELOPER is not 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 representatives and warranties made by DEVELOPER or made in any exhibit hereto or memorandum or writing furnished or to be furnished by DEVELOPER or on its behalf contains or will contain any untrue statement of material fact or omit any material fact the omission of which would be misleading. G. TWO YEAR WARRANTY ON PROPER WORK AND MATERIALS. The DEVELOPER warrants all work required to be performed by it under this DEVELOPMENT CONTRACT against poor material and faulty workmanship for a period of two (2) years after its completion and acceptance by the CITY. The DEVELOPER shall be solely responsible for all costs of performing repair work required by the 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 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. 1.16 CITY WARRANTIES. "CITY WARRANTIES" means that the CITY hereby warrants and represents as follows: A. AUTHORITY. CITY is a municipal corporation duly incorporated and validly existing in good standing the laws of the State of Mirmesota. CITY has the right, power, legal capacity and authority to enter into and perform its obligations under this DEVELOPMENT CONTRACT. _g_ 1.17 FORMAL NOTICE. "FORMAL NOTICES" means notices given by one party to the other if in writing and if and when delivered or tendered either in person or by depositing it in the United States Mail and in a sealed envelope, by certified mail, return receipt requested, with postage and postal charges prepaid, addressed as follows: If to CITY: City of Columbia Heights Attention: City Manager 590 40t" Avenue N.E. Columbia Heights, Minnesota 55421 If to DEVELOPER Pratt Ordway Properties, LLC c/o Len Pratt Vadnais Heights, Minnesota 55110, and 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. 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. The DEVELOPER IMPROVEMENTS shall be completed by the dates shown on EXHIBIT `B,' except as completion dates are extended by subsequent resolution of the COUNCIL. Failure of the CITY to promptly take action to enforce this DEVELOPMENT CONTRACT after expiration of time in which the DEVELOPER IMPROVEMENTS are to be completed shall not waive or release any rights of the CITY; the CITY may take action at any time thereafter, and the terms of this contract shall be deemed to be automatically extended until such time as the DEVELOPER IMPROVEMENTS are completed to the CITY's reasonable satisfaction. 2.2 BOULEVARD AND AREA RESTORATION. The DEVELOPER shall lay cultured sod or hydro seed in all boulevards within 21 days of the 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. - la - 2.3 STREET MAINTENANCE. The DEVELOPER shall clear, on a daily basis, any soil, earth or debris from the streets and wetlands within or adjacent to this PLAT resulting from the grading or building on the land within the PLAT by the DEVELOPER or its agents, and shall restore to the CITY's specifications any gravel base contaminated by mixing construction or excavation de'r~~°is, o~° eat°th in it, and repair to the CITY's specifications any damage to bituminous surfacing resulting from the use of construction equipment. 2.4 OCCUPANCY. Unless otherwise agreed to by the City, no certificate of occupancy and no occupancy of any building in the PLAT shall occur until the DEVELOPER IMPROVEMENTS have been installed. Unless otherwise agreed to by the City, 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 Humphrey Engineering, for such purposes. 2.6 CONSTRUCTION. The construction, installation, materials and equipment related to DEVELOPER PUBLIC IMPROVEMENTS shall be in accordance with the DEVELOPMENT PLANS. The DEVELOPER shall cause the contractors to fi,~rnish the PWD with a written schedule of proposed operations, subcontractors and material suppliers, at least five (5) days prior to commencement of construction work. The DEVELOPER shall notify the CITY in writing, coordinate and hold apre-construction conference with all affected parties at least three (3) days prior to starting construction of any DEVELOPER PUBLIC IMPROVEMENTS. 2.7 INSPECTION. The PWD or its designated representative, shall periodically inspect the work installed by the DEVELOPER, its contractors, subcontractors or agents. The DEVELOPER shall notify the PWD two (2} working days prior to the commencement of the laying of utility lines, subgrade preparation, the laying of gravel base for street construction or any other improvement work which shall be subsequently buried or covered to allow the CITY an opportunity to inspect such improvement work. Upon receipt of said notice, the City shall have a reasonable time, not to be less than three (3) working days, to inspect the improvements. Failure to notify the CITY to allow it to inspect said work shall result in the CITY'S right pursuant to Article 8 to withhold the release of any portion of the escrow amount resulting from work being performed without the opportunity for adequate CITY inspection. 2.8 FAITHFUL PERFORMANCE OF CONSTRUCTION CONTRACTS. The DEVELOPER shall fully and faithfully comply with all terms of any and all contracts entered into by the DEVELOPER for the installation and construction of all of the DEVELOPER PUBLIC IMPROVEMENTS; and the DEVELOPER shall obtain lien waivers. Within thirty (3Q) days after FORMAL NOTICE, the DEVELOPER agrees -11- to repair or replace, as directed by the CITY and at the DEVELOPER'S sole cost and expense, any work 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. 2.9 CITY ACCEPTANCE. The DEVELOPER shall give FORMAL NOTICE to the CITY within thirty (30) days once DEVELOPER PUBLIC IMPROVEMENTS have been completed in accordance with this DEVELOPMENT CONTRACT and the ordinances, CITY standards and specifications and the DEVELOPMENT PLANS. The CITY shall then inspect the DEVELOPER PUBLIC IMPROVEMENTS and notify the DEVELOPER of any DEVELOPER PUBLIC IMPROVEMENTS that do not so conform. Upon compliance with this DEVELOPMENT CONTRACT and CITY ordinances, standards and specifications, and the DEVELOPMENT PLANS, the DEVELOPER PUBLIC IMPROVEMENTS shall become the praperty 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 conform, FORMAL NOTICE shall be given to the DEVELOPER of the need for repair or replacement. ARTICLE 3 RESPONSIBILITY FOR COSTS 3.1 DEVELOPER IMPROVEMENT COSTS. The DEVELOPER shall pay for the DEVELOPER IMPROVEMENTS; that is, all costs of persons doing work or furnishing skills, tools, machinery or materials, or insurance premiums or equipment or supplies and all just claims for the same; and the CITY shall be under no obligation to pay the contractor or any subcontractor any sum whatsoever on account thereof, whether or not the CITY shall have approved the contract or subcontract. 3.2 ENFORCEMENT COSTS. The DEVELOPER shall pay the CITY for costs incurred in the enforcement of this DEVELOPMENT CONTRACT, including engineering and attorneys' fees. 3.3 TIME OF PAYMENT. The DEVELOPER shall pay all bills from the CITY within thirty (30) days after billing. Bills not paid within thirty (30) days shall accrue interest at the rate of 6% per year. ARTICLE 4 DEVELOPER WARRANTIES 4.1 STATEMENT OF DEVELOPER WARRANTIES. The Developer hereby makes and states the DEVELOPER WARRANTIES. -12- ARTICLE 5 CITY WARRANTIES S.l STATEMENT OF CITY WARRANTIES. The City hereby makes and states the CITY WARRANTIES. ARTICLE 6 INDEMNIFICATION 6.1 INDEMNIFICATION OF THE CITY. DEVELOPER shall indemnify, defend and hold the CITY its COUNCIL, agents, employees, attorneys and representatives harmless against and in respect of any and all claims, demands, actions, suits, proceedings, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties and attorneys' fees, that the CITY incurs or suffers, which arise out of, results from or relates to: a) breach by the DEVELOPER of the DEVELOPER WARRANTIES; b) failure of the illEVELOPER to timely construct the illEVELOPER 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; f) failure to obtain the necessary permits and authorizations to construct the DEVELOPER PUBLIC IMPROVEMENTS; g) construction of the DEVELOPMENT PUBLIC IMPROVEMENTS. ARTICLE 7 CITY REMEDIES UPON DEVELOPER DEFAULT 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 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 sale discretion, provided that the DEVELOPER submits, -13- 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 DEFATJLT within the CURE PERIOD or DIF~ECTOR 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 incurred by the CITY. In the alternative, the CITY may in whole or in part, specially assess any of the costs and expenses incurred by the CITY; and the DEVELOPER and OWNER hereby waive any and all procedural and substantive objections to the installation and construction of the work and improvements and the special assessment resulting there from, including but not limited to notice and 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. 7.2 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. 7.3 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; provided however that the CITY shall not have the power to exercise bath the remedy provided by Section 7.1(c) and, concurrently or sequentially, -14- the remedy provided by Section 7.1(e), to the extent that the remedy in Section 7.1(c) provides reimbursement to the City far 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 shall be constnied to be a waiver thereof, but any such right and pc dyer may be exercised frown time to tithe 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 NO"I'ICE. 7.4 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 from the DEVELOPER DEFAULT, the CITY may perform the work or improvement to be performed by the DEVELOPER without giving any notice or FORMAL NOTICE to the DEVELOPER and without giving the DEVELOPER aforty-eight (48) hour period to cure the DEVELOPER DEFAULT. In such case, the DEVELOPER shall within thirty (30) days after written billing by the CITY reimburse the CITY for any and all costs incurred by the CITY. In the alternative, the CITY may, in whole or in part, specially assess the costs and expenses incurred by the CITY; and the DEVELOPER and OWNER hereby waive any and all procedural and substantive objections to the installation and construction of the work and improvements and the special assessments resulting there 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 Minn. Stat. 429.081. ARTICLE 8 ESCROW DEPOSIT 8.1 ESCROW REQUIREMENT. Contemporaneously herewith, the DEVELOPER shall deposit with the CITY an irrevocable letter of credit, or cash deposit far 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 bank and form of the irrevocable letter of credit, or cash deposit shall be subject to approval by the City Finance Director and City Attorney and shall continue to be in full force and effect until released by the CITY pursuant to Section 8.2 below. The irrevocable lettcr of credit shall be for a term ending December 3 l St, 2009. In the alternative, the letter of credit may be for a one year term provided it is automatically renewable for successive one year periods from the present or any future expiration dates with a final expiration date of December 31St, 2009, 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 far an additional period. The irrevocable letter of credit shall secure compliance by the DEVELOPER with the terms of this -15- 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 C1"fY receiving notice that the irrevocable letter of credit will be allowed to lapse before December 31, 2009. 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 and upon completion by the DEVELOPER and acceptance by the CITY of any specific DEVELOPER PUBLIC IMPROVEMENTS, ninety percent (90%) of that portion of the irrevocable letter of credit, or cash deposit covering those specific completed improvements only shall be released. The final ten percent (10%) of that portion of the irrevocable letter of credit, or cash deposit, for those specific compieted improvements shall be held until acceptance by the CITY and 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 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, in the alternative, require the concealed condition to be exposed for inspection purposes. ARTICLE 9 MISCELLANEOUS 9.1 CITY'S DUTIES. The terms of this DEVELOPMENT CONTRACT shall not be considered an affirmative duty upon the CITY to complete any DEVELOPMENT IMPROVEMENTS. 9.2 NO THIRD PARTY RECOURSE. Third parties shall have no recourse against the CITY under this DEVELOPMENT CONTRACT. -16- 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 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. 9.5 BINDING AGREEMENT. The parties mutually recognize and agree that all terms 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 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. 9.7 AMENDMENT AND WAIVER. The parties hereto may by mutual written agreement amend this DEVELOPMENT CONTRACT in any respect. Any party hereto may extend the time for the performance of any of the obligations of another, waive any inaccuracies in representations by another contained in this DEVELOPMENT CONTRACT or in any document delivered pursuant hereto which inaccuracies would otherwise constitute a breach of this DEVELOPMENT CONTRACT, waive compliance by another with any of the covenants contained in this DEVELOPMENT CONTRACT and performance of any obligations by the other or waive the fulfillment of any condition that is precedent to the performance by the party so waiving of any of its obligations under this DEVELOPMENT CONTRACT. Any agreement on the part of any party for any 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 arty other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. 9.8 GOVERNING LAW. This DEVELOPMENT CONTRACT shall be governed by and construed in accordance with the laws of the State of Minnesota. 9.9 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. 9.10 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. -17- 9.11 INCONSISTENCY. If the DEVELOPMENT PLANS are inconsistent with the words of this DEVELOPMENT CONTRACT or if the obligations imposed hereunder upon the DEVELOPER are inconsistent, then that provision or term which imposes a greater and more demanding obligation on the DEVELOPER shall. prevail. 9.1.2 ACCESS. The DEVELOPER hereby grants to the CITY, its agents, employees, officers, and contractors a license to enter the PLAT to perform all inspections deemed appropriate by the CITY during the installation of DEVELOPER IMPROVEMENTS by the DEVELOPER. 9.13 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 conjunction with site development and prior to issuance of a final certificate of occupancy and building. This requirement shall be based on the landscaping and screening materials for Block 1, at the completion of each multiple unit building (lot grouping). 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, fencing and/or screening. The letter of credit, 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 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 promptly removed and replaced immediately, or within the next planting season if required by the weather. d} All DEVELOPMENT turf irrigation systems shall include rain detecting shutoff devices to control irrigation function during wet weather. (wate,- conservation measure) 9.14 PARK DEDICATION. The City hereby determines Park dedication fees in the amount of $750.00 per unit, and that such fees be paid prior to the building permit issuance, to be deposited in City Fund 412, Parks Capital Improvements. The calculation shall be as provided in E~HIEIT `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 electronic and hard copy form consistent with CITY requirements, and provided to the PWD within six (6) months of the completion. of the DEVELOPER IMPROVEMENTSe Additionally, -18- 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. 4.15 ADDITIONAL AGREEMENTS. A. The OWNER and the CITY hereby agree that the maintenance costs of the storm water ponding located at the northwest corner of 37`" Avenue and Hart Boulevard shall be shared by the DEVELOPMENT and CITY on a contributory runoff split using CN numbers for each lot. Necessary storm water maintenance activities shall be conducted or cause to be conducted by the CITY, with said costs billed to the DEVELOPMENT by the CITY, payable within 30 days. In order to enforce the provisions of this Section 9.16(C), the governing documents of all property owners' and/or Homeowners' Associations (collectively, the "HOA") shall be subject to the reasonable review and approval of the City Attorney to assure that the HOA's documents include a requirement for said necessary storm water pond maintenance and reimbursement to the City for the contributory runoff percentage of said cost. B. The OWNER and the CITY hereby agree to the following: a. The DEVELOPER shall install a 8 foot wide bituminous trail on the west ROW of Hart Boulevard from 37t" Avenue to a line parallel to the north plat line and provide restoration in this area. Provided however that the CITY shall indemnify and hold DEVELOPER harmless from any and all liabilities for adverse environmental conditions, if any, which may be encountered during the construction. C. The OWNER and shall obtain all necessary approvals from the Rice Creek Watershed District (RCWD) for the remaining work on Lot l and lA, Block 1 of the Hart Lake Addition. 9.17 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 CONTR<4CT for revie`~r 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. -19- IN WITNESS WHEREOF, the parties have executed this DEVELOPMENT CONTRACT. CITY OF COLUMBIA HEIGHTS DEVELOPERo PRATT ORDWAY PROPERTIES By: Gary Peterson, Mayor By: Walt Fehst, City Manager STATE OF MINNESOTA COUNTY OF ANOKA ss. By: Its Len Pratt On this day of , 2008, before me a Notary Public within and for said County, personally appeared to me Gary Peterson and Walt Fehst, personally known, who being each by me duly sworn, each did say that they are respectively the Mayor and City Manager of the City of Columbia Heights, the municipality named in the foregoing instrument, and that the seal affixed to said instrument was signed and sealed an behalf of said municipality by authority of its City Council and said Mayor and City Manager acknowledged said instrument to be the free act and deed of said municipality. Notary Public STATE OF MINNESOTA COUNTY OF ANOKA ss. On this day of , 2008, before me a Notary Public within and for said County, personally appeared Len Pratt, to me personally known, who being by me duly s`vorn, said that he is the of Pratt Ordway Properties, a LLC, named in the foregoing instrument, and that said instrument was signed in behalf of said Pratt Ordway Properties, a Minnesota LLC by authority of its Board of Directors, and said Len Pratt acknowledged said instrument to be the free act and deed of Pratt Ordway Properties. Notary Public -20- THIS INSTRUMENT DRAFTED BY: Kevin Hansen, P.E. City Engineer, & Jeff Sargent City Planner City of Columbia Heights 590 40`x' Avenue N.E. Columbia Heights, MN 55421 763/706-3600 James Hoeft City Attorney Barna, Guzy, and Steffen, ltd 200 Coon Rapids Boulevard Suite 400 Coon Rapids, MN 763/783-5122 -21 - EXHIBIT A LIST OF DEVELOPMENT PLANS HART BOULEVARD ADDITION PLAN DESCRIPTION DESIGN PLAN DATE 1. Development Plat Cornerstone Land Surveying 2. Erosion Control and Grading Plan Humphrey Engineering 12/8/06 (including the project SWPPP) 3. Street Plan (Public) Humphrey Engineering 12/8/06 4. 5. 6. Utility/Site Plan (Public/Private) Humphrey Engineering 12/8/06 Landscape Plan Humphrey Engineering 12/8/06 Street Light Plan Humphrey Engineering 12/8/06 -22- EXHIBIT B DEVELOPER PUBLIC IMPROVEMENTS The items checked with "PUBLIC" below are those DEVELOPER IMPROVEMENTS that are DEVELOPER-PUBLIC IMPROVEMENTS. CHECKED COMPLETION DATE IMPROVEMENT 6/31/09 6/31/09 X Public (Hart Blvd) 12/31/09 12/31/09 12/31/09 Grading/Removals/Erosion Control Plan Utilities (Storm Sewer) Streets (Plat -Public) Landscaping Street Lighting Note: Pursuant to Section 2.4, all Developer Improvements must be completed prior to the final occupancy of the building. Unless otherwise agreed to by the City, this provision shall exclude Site Landscaping and Site Street Lighting. -23- EXHIBIT C ESCROW AND PARK DEDICATION CALCULATION(S) DEVELOPER IMPROVEMENTS 1. Erosion Control/Restoration (site) $ 23,000 2. Utilities (Storm Sewer & pond completion) $ 50,000 3. Public Street Connections $ 15,000 4. Landscaping (incl. Retaining Walls} $ 50,000 5. Street Lighting $ 15,000 6. Hart Blvd Trail/Restoration $ 25,000 $ i8v,000 MULTIPLIED BY: 1.25 EQUALS: $ 225,000 For the above work, DEVELOPER shall post escrow* for $ 225,000. (* Form in accordance with Section 8.1 of this agreement.) 1. Original Park Dedication New Balance: $26,890 (Paid in Full) $0 In addition to the letter of credit required above, the DEVELOPER shall also deposit $7,500 in cash with the CITY contemporaneously with execution of this DEVELOPMENT CONTRACT. This $7,500 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 $7,500 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 $7,500 deposit, the DEVELOPER is responsible for payment of such excess within thirty (30) days after billing by the CITY. -24- 111 WITNESS WI~EREOF, the parties have executed this DEVELOPMEI~TT CONTRACT. CI'I'~' ~~' C~I~~IN.IB ~-I~IT Gary I'et rsan,lVlayar ~ , ., ~, ,.--A ~~ I3y° ~._ Watt I+;~t~~t, City 1`Ylanagei° Its ~ ~. ~TAT~ ~F 1VIIlOTN~S~T~ } 5S. CGUNT'~' ®F AID®K~~ } ~ lvucary r uuiic S'I' 4TF 4~ ilrII14~NESOTr~ ) ss. C4UNT3~' ®F A~®KA ) 3G61419.3 1(