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HomeMy WebLinkAbout2016-27322016 -2732 DEVELOPMENT CONTRACT FOR Stinson Business Center INDEX TO CITY DF COLUMBIA HEIGHTS DEVELOPMENT CONTRACT FOR Stinson Business Center RECITALS ARTICLE 1 — DEFINITIONS 1.1 Terms 1.2 City of Columbia Heights 1.3 Developer, Owner 1.4 Site Plan 1.5 Development Plans 1.6 Development Contract 1.7 Council 1.8 PVVD 1.8 Director ofPVYD 1.10 County 1.11 Developer Improvements 1.12 Developer Public Improvements 1.13 Developer Default 1.14 Force k4ajeune 1.15 Developer Warranties A. Authority B. No Default C. Present Compliance with Laws -1- D. Continuing Compliance with Laws L. 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 3.2 Boulevard and Area Restoration 2.3 Street Maintenance 2.4 Occupancy 3.5 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 Time of Payment _I_ ARTICLE 4— DEVELOPER WARRANTIES 4.1 Statement of Developer Warranties ARTICLES— CITY WARRANTIES 5.1 Statement of City Warranties ARTICLE 6— INDEMNIFICATION 0FCITY 6.1 Indemnification nfCity ARTICLE 7— CITY REMEDIES UPON DEVELOPER DEFAULT 7.1 City Remedies 7.2 No Additional Waiver Implied by One Waiver 7.3 No Remedy Exclusive 7.4 Emergency ARTICLE 0- 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 93 Validity 9�4 Recording 9.5 Binding Agreement 9.6 Contract Assignment 9.7 Amendment and Waiver -4- 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 uf Development Contract EXHIBIT /\— LIST OF DEVELOPMENT PLANS EXHIBIT B— DEVELOPER PUBLIC IMPROVEMENTS EXHIBIT C— ESCROW AND PARK DEDICATION CALCULATION CITY OF COLUMBIA HEIGHTS DEVELOPMENT CONTRACT FOR Stinson Business Center THIS AGREEMENT, made and entered into on the day of 2016, by and between the CITY OF COLUMBIA HEIGHTS, a municipality of the State of Minnesota, (hereinafter referred to as the CITY), and SALAD INVESTMENTS, LLC, (hereinafter referred tnas the OWNER and DEVELOPER) identified herein, WHEREAS, the DEVELOPER has applied to the CITY for approval of the Site Plan; WHEREAS, the CITY has approved the Site Plan subject to the following conditions: 1. That the DEVELOPER enter into this DEVELOPMENT CONTRACT, which contract defines the work which the DEVELOPER undertakes to complete within the SITE PLAN; AND 2. The DEVELOPER shall provide an irrevocable letter of credit, or cash deposit, in the amount and with conditions satisfactory tn the CITY, providing for the actual construction and installation ofsuch improvements within the period specified by the CITY; 3. That the DEVELOPER shall dedicate a 10 foot wide easement along the north end of the SITE PLAN from Stinson Boulevard to McKinley St. NE. AND; 4. The DEVELOPER shall install a storm water BMP's featuring a water quality pond on the Southwest corner of the SITE PLAN, meeting the requirements of the Rice Creek Watershed District (RCWD). 1. The DEVELOPER shall provide the City with a copy of the RCWD permit detailing any site specific requirements, including easements for the storm water BMP's. WHEREAS, the DEVELOPER will file Three (3) complete sets of the DEVELOPMENT PLANS with the CITY; WHEREAS, the DEVELOPMENT PLANS must be prepared by a registered professional engineer and submitted tu and approved by the DIRECTOR OF THE PVVD. 0[}W, 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 osfollows: ARTICLE L DEFINITIONS 1.1 TERMS. The following terms, unless elsewhere defined specifically in the DEVELOPMENT CONTRACT, 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" means Salad Investments, LLC. 1.4 SITE PLAN. "SITE PLAN" means the approved SITE PLAN of Stinson Business Center, inthe City nf 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 byand among the CITY, OWNER and DEVELOPER. 1.7 COUNCIL. "COUNC|L" means the Council of the City of Columbia Heights. 1.8 PWDD. "PVVCf means the Public Works Department of the City nf Columbia Heights. 1^9 DIRECTOR OF PWD. "DIRECTOR OFPVVD" means the Director of Public Works Department of the City ofColumbia 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 EXH|8|T'B.' 112 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 "pub|ic". DEVELOPER PUBLIC IMPROVEMENTS are improvements to be constructed by the DEVELOPER within public right-of-way and which are tobe approved and later accepted by the CITY. DEVELOPER PUBLIC IMPROVEMENTS are part nf DEVELOPER IMPROVEMENTS. 2.13 DEVELOPER DEFAULT. "DEVELOPER DEFAULT" means and includes, jointly and severally, any of the following or any combination thereof: s) failure by the DEVELOPER to timely pay the CITY any money required to be paid under the DEVELOPMENT CONTRACT; @ failure bv the DEVELOPER to timely construct the DEVELOPER PUBLIC IMPROVEMENTS according to the DEVELOPMENT PLANS and the CITY standards and specifications; C) failure by the DEVELOPER to observe or perform any covenant, condition, obligation or agreement nnits part tobe observed m performed under this DEVELOPMENT CONTRACT; d) breach of the DEVELOPER WARRANTIES, 1.14 FORCE MAJEURE. "FORCE K4A]EURE" means acts of God, including, but not limited tofloods, 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 orexplosions. 1.15 DEVELOPER WARRANTIES. "DEVELOPER VVARRANTE6"means that the Developer hereby warrants and represents the following: A. AUTHORITY. Developer is organized and in good standing under the laws ufthe State of Minnesota. DEVELOPER has the right, power, legal capacity and authority to enter into and perform its obligations under this DEVELOPMENT CONTRACT, and oo approvals or consents of any persons are necessary in connection with the authority of DEVELOPER tu enter into and perform its obligations under this DEVELOPMENT B. NO DEFAULT. DEVELOPER is not in default under any lease, contract uragreement ho which hisa party orbv which it is bound which would materially affect performance under this DEVELOPMENT CONTRACT, DEVELOPER is not a party tonr 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 for in this DEVELOPMENT CONTRACT. C. PRESENT COMPLIANCE WITH LAWS. DEVELOPER has complied with and is not in violation of applicable federal, state nr local statutes, laws, and regulations (including, without limitation, permits and licenses and any applicable zoning, environmental or other law, ordinance or regulation) affecting the SITE PLAN and the DEVELOPMENT PLANS and the DEVELOPER IMPROVEMENTS; and DEVELOPER is not aware of any pending o, 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, environmental or other law, ordinance or regulation) affecting the SITE PLAN and the DEVELOPMENT PLANS and the DEVELOPER IMPROVEMENTS. E. NO LITIGATION. Tn the best of DEVELOPER'S knowledge, there isno suit, action, arbitration or legal, administrative or other proceeding nrgovernmental investigation pending, or threatened against or affecting DEVELOPER, except as disclosed in writing to the City, or the SITE PLAN, or the DEVELOPMENT PLANS or the DEVELOPER IMPROVEMENTS. DEVELOPER is not in material default with respect tu any order, writ, injunction or decree of any federal, state, local or foreign court, department, agency orinstrumentality. FULL DISCLOSURE. None of the representatives and warranties made byDEVELOPER nr made |n any exhibit hereto or memorandum or writing furnished ortobe furnished bv DEVELOPER oron its behalf contains or will contain any untrue statement of material fact or omit any material fact the omission of which would be G. TWO YEAR WARRANTY ON PROPER WORK AND MATERIALS. The DEVELOPER warrants all work required to be performed byh 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 (3Q) days of the repair work being completed. H. OBTAINING PERMITS. The DEVELOPER shall obtain ina timely manner and pay for all required permits, licenses and approvals, and shall meet, ina 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 isa municipal corporation duly incorporated and validly existing |n good standing the laws of the State of Minnesota. CITY has the right, power, legal capacity and authority to enter into and perform its obligations under this DEVELOPMENT CONTRACT. I^17 FORMAL NOTICE. "FORMAL NOT|CES"means notices given by one party to the other ifin writing and if and when delivered or tendered either in person or by depositing it in the United States Mail and inasealed envelope, by certified mail, return receipt requested, with postage and postal charges prepaid, addressed asfollows: RtoCITY: City qf Columbia Heights Attention: City Manager 590 40th Avenue N.E. Columbia Heights, Minnesota 55413 If to DEVELOPER Salad Investments Attention: Mohammad Salad 3195 Magnolia Drive Medina, MN 55340 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 the cost of the DEVELOPER the DEVELOPER IMPROVEMENTS in accordance with the DEVELOPMENT PLANS. The DEVELOPER IMPROVEMENTS shall be completed by the dates shown on EXHIBIT'S,' 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. 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 SITE PLAN resulting from the grading or building on the land within the SITE PLAN by the DEVELOPER or its agents, and shall restore to the CITY's specifications any gravel base contaminated by mixing construction or excavation debris, or earth in it, and repair to the CiTY's specifications any damage to bituminous surfacing resulting from the use of construction equipment. 2.4 OCCUPANCY. Unless otherwise agreed to by the City, no certificate of occupancy and no occupancy of any building in the Site Plan 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. _in_ 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. 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 furnish 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 a pre- 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 (30) days after FORMAL NOTICE, the DEVELOPER agrees to repair or replace, as directed by the CITY and at the DEVELOPER's sole cost and expense, any work or materials that within 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 property of the CITY upon FORMAL NOTICE of acceptance by the CITY. After acceptance, the DEVELOPER PUBLIC IMPROVEMENTS become the property of the CITY, If the DEVELOPER PUBLIC IMPROVEMENTS do not conform, FORMAL NOTICE shall be given to the DEVELOPER of the need for repair or replacement. - 1 1 - 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 inthe 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 (K} ) 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. ARTICLE 5 CITY WARRANTIES 5.1 STATEMENT OF CITY WARRANTIES. The City hereby makes and states the CITY ARTICLE 6 INDEMNIFICATION 6.1 INDEMNIFICATION OF THE CITY. Except for any damages mr claims that arise solely from the willful misconduct or gross negligence of the CITY, the 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: 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; -Y7- 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 sole discretion, provided that the DEVELOPER submits, to the CITY using the FORMAL NOTICE procedures of Section 1.17 within the CURE PERIOD, a reasonable plan or contract bid that demonstrates that it is impractical to cure the DEVELOPER DEFAULT within the CURE PERIOD. If the DEVELOPER, after FORMAL NOTICE to it by the CITY, does not cure the DEVELOPER DEFAULT within the CURE PERIOD or DIRECTOR OF PWD approved extension thereof, then the CITY may avail itself of any remedy afforded by law and any of the following remedies. 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 therefrom, tI including but not limited to notice and hearing requirement and any claim that the special assessments exceed benefit to the SITE PLAN, The DEVELOPER and OWNER hereby waive any appeal rights upto the amount indicated on EXHIBIT'C' pursuant to Minn. Stat. 429.081. Upon unevent of default, the limited partners of the OWNER shall have the right to cure any such default and the CITY shall accept such default as if cured by the OWNER itself, 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 tn 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 orreserved 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 orsequentially, the remedy provided by Section 7.](e), to the extent that the remedy in Section 7.1(c) provides reimbursement to the City for any costs and expenses incurred bv 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 construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. {n order to entitle the CITY to exercise any remedy reserved toit, it shall not be necessary to give notice, other than the FORMAL NOTICE. 7.4 EMERGENCY. Notwithstanding the requirement relating tu FORMAL NOTICE tothe 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 tobe performed bythe DEVELOPER without giving any notice or FORMAL NOTICE to the DEVELOPER and without giving the DEVELOPER a forty-eight (48) hour period to cure the DEVELOPER DEFAULT, In such case, the DEVELOPER shall within thirty (30) days after written billing by the CITY reimburse the CITY for any and all costs incurred by the CITY. |n 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 SITE PLAN. The DEVELOPER and OWNER hereby waive any appeal rights up to the amount indicated on EXH|8|T'C' pursuant to Minn. Stat.429.O81. 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 for the amounts set forth on EXHIBIT (C.1 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 letter of credit shall be for a term ending December 31, 2017. 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 31, 2017, and further provided that the irrevocable letter of credit states that at least sixty (60) days prior to the expiration date the bank will notify the City if the bank elects not to renew for an additional period. The irrevocable letter of credit shall secure compliance by the DEVELOPER with the terms of this DEVELOPMENT CONTRACT. The CITY may draw down on the irrevocable letter of credit or cash deposit, without any further notice than that provided in Section 7.1 relating to a DEVELOPER DEFAULT, for any of the following reasons: a) a DEVELOPER DEFAULT; or b) upon the CITY receiving notice that the irrevocable letter of credit will be allowed to lapse before December 31, 2017, 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 (50 %) 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 landscaping 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. _15_ ARTICLE 9 MISCELLANEOUS 9.1 The terms of this DEVELOPMENT CONTRACT shall not be considered an affirmative duty upon the CITY to complete any DEVELOPMENT IMPROVEMENTS excluding the public trail. 9.2 NO THIRD PARTY RECOURSE. Third parties shall have no recourse against the CITY under this DEVELOPMENT CONTRACT. 9.3 \&ALU0|Ty. 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 SITE PLAN shall be recorded with the COUNTY Recorder and the DEVELOPER shall provide and execute any and all documents necessary to implement the 9.6 BINDING AGREEMENT. The parties mutually recognize and agree That all terns and conditions of this recordable DEVELOPMENT CONTRACT shall run with the SITE PLAN and shall be binding upon the heirs, successors, administrators and assigns nf the DEVELOPER. 9.6 CONTRACT ASSIGNMENT. The DEVELOPER may not assign this DEVELOPMENT CONTRACT without the written permission of the CITY. 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 any 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 |n any number uf counterparts, each of which shall be deemed mo original but all of which shall constitute one and the same instrument. -16- 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. 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. 9.12 ACCESS. The DEVELOPER hereby grants to the CITY, its agents, employees, officers, and contractors a license to enter the SITE PLAN 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. 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. A portion of the letter of credit may be released after one growing season as determined by the DIRECTOR OF PUBLIC WORKS. C) The OWNER shall be responsible for continued maintenance of fencing, landscaping and screening materials to remain in compliance with the requirements of this Section. d) All DEVELOPMENT turf irrigation systems shall include rain detecting shutoff devices to control irrigation function during wet weather. 9.14 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. 9.15 ADDITIONAL AGREEMENTS. A. The OWNER hereby agrees that the maintenance costs of the Storm Water BMP's located on the Development Site shall be the responsibility of the Developer. _17_ B. The OWNER hereby agrees to dedicate o10 foot easement to accommodate m public trail along the north side of the property. C. The CITY agrees to construct and pay for the trail. D. The OWNER shall dedicate public drainage and utility easements around the periphery of the Site. 9.17 RELEASE OF DEVELOPMENT CONTRACT. Upon completion ofeUDEVELOPER IMPROVEMENTS and all DEVELOPER PUBLIC IMPROVEMENTS, and upon the expiration of the Section 1.15G. TWO YEAR WARRANTY [JN PROPER WORK AND MATERIALS, the DEVELOPER may submit to the CITY a draft release of this DEVELOPMENT CONTRACT for review and approval by the UTYsattorney. IN WITNESS WHEREOF, the parties have executed this DEVELOPMENT CONTRACT. STATE OF MINNESOTA ) ss. COUNTY OF ANOKA 10 STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA On this 15= day of 2016, before me a Notary Public within and for said County, personally appeared t1O to me personally known, who being by me duly sworn, said that he is the 0 F'Q — of Sam. Zn rh L�on behalf of said L-LC- RMA VA tary Public -10- E|babethBoknbeck Kevin Hansen, P.E. City Planner Public Works Director/City Engineer City ofColumbia Heights City ofColumbia Heights SAU»«m Avenue N.E. 63738m Avenue N.E. Columbia Heights, K4NS5421 Columbia Heights, MN 55421 763/706-3675 763/706'3705 -70- James Hoeft City Attorney Barna,Guq\ and Steffen, |td JO0 Coon Rapids Boulevard Suite 400 Coon Rapids, MN I •Uki I 311N d a PLAN DESCRIPTION DESIGN PLAN DATE 1. Site Plan Lampert Architects 2/5/16 2. Erosion Control and Grading Plan (Including the project SWPPP) 3. Street Connections (Public) EM a 0 Utility/Site Plan (Private) Landscape Plan Plowe Engineering, INC. 1/4/16 Plowe Engineering, INC. 1/4/16 Plowe Engineering, INC. 1/4/16 Lambert Architects 1/27/16 Storm Water Pollution Prevention Plan Plowe Engineering, INC. 1/4/16 _ ,)t_ I I & a a a I The items checked with "PUBLIC" below are those DEVELOPER IMPROVEMENTS that are DEVELOPER-PUBLIC IMPROVEMENTS. CAECKED COMPLETION DATE 11/31/16 11/31116 X Public 11/31/16 6/31/17 Grading/Removals/Erosion Control Plan Utilities (Storm Sewer) Streets (Plat - Public) Landscaping 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. -22- 1. 2. 3. 4. DEVELOPER IMPROVEMENTS SWPPP/Erosion Control/Restoration (site) $ 5,000 Utilities (Storm Sewer & )BMP completion) Public Street Connections Landscaping MULTIPLIED BY: 1.25 EQUALS: $ 40,000 $ 6,000 $ 5,000 $ 56,000 $ 70,000 For the above work, DEVELOPER shall post escrow* for $ 70,000. (* Form in accordance with Section 8.1 of this agreement.) ► I It I In addition to the letter of credit required above, the DEVELOPER shall also deposit $3,500 in cash with the CITY contemporaneously with execution of this DEVELOPMENT CONTRACT. This $3,500 shall be to pay the CITY for the past and future engineering site inspection fees with at the CITY's standard rates charged for such tasks. The CITY represents to the DEVELOPER that the sum of $0 is presently outstanding for such site inspection fees and that no additional amount will be charged to the DEVELOPER for engineering site inspection fees incurred prior to the effective date of this DEVELOPMENT CONTRACT. Upon acceptance of the DEVELOPER PUBLIC IMPROVEMENTS, the CITY shall return to the DEVELOPER any remaining portion of the $3,500 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 $3,500 deposit, the DEVELOPER is responsible for payment of such excess within thirty (30) days after billing by the CITY. -23-