HomeMy WebLinkAbout2018-28572018 -2857
DEVELOPMENT CONTRACT
FOR
Holy Spirit Association for the Unification of
World Christianity (a California Corporation)
COLUMBIA HEIGHTS, MINNESOTA
THIS INSTRUMENT WAS DRAFTED BY:
Barra, Guzy & Steffen Ltd. (TRW)
City Attorney
400 Northtown Financial Plaza
200 Coon Rapids Blvd.
Coon Rapids, MN 55433
Telephone: (763) 780 -8500
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Kevin Hansen
Public Works Director /City Engineer
Elizabeth Holmbeck
City Planner
City of Columbia Heights
590 40th Avenue NE
Columbia Heights, MN 55421
Telephone: (763) 706 -3705
TABLE OF CONTENTS TO CITY OF COLUMBIA HEIGHTS
DEVELOPMENT CONTRACT FOR
3836 Stinson Boulevard NE, COLUMBIA HEIGHTS, MINNESOTA
RECITALS
ARTICLE 1— DEFINITIONS
1.1
Council
1.2
County
1.3
Developer, Owner
1.4
Developer Default
1.5
Developer Improvements
1.6
Developer Public Improvements
1.7
Development Contract
1.8
Development Plans
1.9
Development Property
1.10
Force Majeure
1.11
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 Replacement of Public Improvements
2.10 City Acceptance
ARTICLE 3 — RESPONSIBILITY FOR COSTS
3.1 Developer Improvement Costs
3.2 Enforcement Costs
3.3 Time of Payment
ARTICLE 4 — DEVELOPER REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Developer Representations and Warranties
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A. Authority
B. No Default
C. Present Compliance With Laws
D. No Litigation
E. Full Disclosure
F. Two Year Warranty on Proper Work and Materials
4.2 Developer Covenants
A. Use
B. Obtaining Permits
C. Construction Staging
D. Continuing Compliance With Laws
ARTICLE 5 — CITY REPRESENTATIONS AND WARRANTIES
ARTICLE 6 — INDEMNIFICATION
6.1 Indemnification of the City
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 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 Binding Agreement
9.5 Contract Assignment
9.6 Amendment and Waiver
9.7 Governing Law
9.8 Counterparts
9.9 Headings
9.10 Inconsistency
9.11 Access
9.12 Installation and Maintenance of Landscaping and Screening
9.13 Record Drawings
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9.14 Additional Agreements
9.15 Release of Development Contract
EXHIBIT A — LEGAL DESCRIPTION OF THE PROPERTY
EXHIBIT B — LIST OF DEVELOPMENT PLANS
EXHIBIT C — DEVELOPER PUBLIC IMPROVEMENTS AND REQUIRED ESCROW
EXHIBIT D — FORM OF MAINTENANCE AGREEMENT
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CITY OF COLUMBIA HEIGHTS
DEVELOPMENT CONTRACT FOR
Holy Spirit Association for the Unification of World Christianity (a California
Corporation)
THIS DEVELOPMENT CONTRACT ( "Development Contract "), is made and entered
into on the 9th day of April, 2018, by and between the CITY OF COLUMBIA HEIGHTS, a
municipality of the State of Minnesota, (the "City "), and Holy Spirit Association for the
Unification of World Christianity a California Corporation (the "Owner" and the "Developer).
WHEREAS, the Developer has applied to the City for Site Plan Approval for the
development of a religious facility to be located at 3836 Stinson Boulevard NE., Columbia
Heights, MN 55421;
WHEREAS, by Resolution No. 2017 -PZ05, the City has approved the Site Plan
referenced in such Resolution, subject to (among other items and conditions outlined in
Resolution No. 2017 -PZ05) the Developer entering into this Development Contract, and subject
to the terms and conditions contained herein;
WHEREAS, the Developer has filed three (3) complete sets of the Development Plans
(defined below) 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 Community
Development Department of the City, or his or her designee (the "City Representative ");
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:
ARTICLE L
DEFINITIONS
The following terms, unless elsewhere defined specifically in the Development Contract,
shall have the following meanings as set forth below.
1.1. COUNCIL. "Council" means the Council of the City of Columbia Heights.
1.2. COUNTY. "County" means Anoka County, Minnesota.
1.3.DEVELOPER; OWNER. "Developer" and "Owner" each mean and refer to
Holy Spirit Association for the Unification of World Christianity, a California
Corporation.
1.4. DEVELOPER DEFAULT. "Developer Default" means and includes, jointly and
severally, any event and continuance of the following or any combination thereof:
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 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 on its part to be observed or performed under this
Development Contract;
D. breach of the Developer Warranties,
1.5. DEVELOPER IMPROVEMENTS. "Developer Improvements" means and
includes all the improvements specified to be constructed in accordance with the
Development Plans, including but not limited to, the Developer Public Improvements.
1.6. DEVELOPER PUBLIC IMPROVEMENTS. "Developer Public
Improvements" means and includes, jointly and severally, all the improvements
identified and checked on the attached Exhibit C. 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 included within the definition Developer Improvements.
1.7. DEVELOPMENT CONTRACT. "Development Contract" means this instant
contract by and among the City, Owner and Developer.
1.8. DEVELOPMENT PLANS. "Development Plans" means all those plans, drawings,
specifications and surveys identified and checked on the attached Exhibit B and
hereby incorporated by reference and made a part of this Development Contract.
1.9. DEVELOPMENT PROPERTY. "Development Property" means that certain real
property, as the same may be improved from time -to -time, legally described as:
See attached Exhibit A.
1.10. 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.
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1.11. FORMAL NOTICE. "Formal Notice" 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
with a nationally recognized courier service for overnight delivery, 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: Holy Spirit Association for the Unification of
World Christianity (a California Corporation)
4 West 43rd Street, New York, NY 10036
with copy to: Keith Anderson
8549 Forestview Lane N
Maple Grove, MN 55369
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
Development Property, at Developer's own cost, the Developer Improvements in
accordance with the Development Plans. The Developer Improvements shall be
completed by the dates shown on Exhibit C 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 14 days of the completion of street related
improvements and restore all other areas disturbed by the development grading
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operation in accordance with the approved erosion control plan, over the
Development Property.
2.3. STREET MAINTENANCE. The Developer shall clear, on a daily basis, any soil,
earth or debris from the streets and any storm water BMP facilities within or adjacent
to the Development Property resulting from the grading or building on the land within
the Development Property 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 final or permanent
certificate of occupancy for any building in the Development Property shall occur
until the Developer Improvements have been fully and completely installed, as
reasonably determined by the City. Unless otherwise provided for in this
Development Contract, a temporary occupancy permit may be issued by the City if
the Site Landscaping and Site Street Lighting are not fully completed.
2.5. APPROVAL OF CONTRACTORS AND ENGINEER. Any contractor or
engineer selected by the Developer to design, construct or install any Developer
Public Improvements must be approved in writing by the City Representative, which
approval shall not be unreasonably withheld; provided however that the City hereby
specifically approves Plowe Engineering, Inc., for engineering purposes, Lampert
Architects, for architecture purposes, and R J Ryan Construction, Inc., for general
contracting purposes.
2.6. CONSTRUCTION. The construction, installation, materials and equipment related
to Developer Public Improvements shall be completed in a professional manner in
accordance with the Development Plans. The Developer shall cause the contractors
to furnish the City Representative with a written schedule of proposed operations,
subcontractors and material suppliers, at least five business (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 business (3) days prior to starting construction of any Developer Public
Improvements.
2.7. INSPECTION. The City Representative shall periodically inspect the work
installed by the Developer, its contractors, subcontractors or agents. The Developer
shall notify the City Representative two (2) business 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
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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. Developer shall timely pay all contractors,
subcontractors and materials suppliers and the Developer shall obtain and keep on file
final lien waivers from all contractors, subcontractors and materials suppliers.
2.9. REPLACEMENT OF PUBLIC IMPROVEMENTS. If, within two (2) years after
acceptance of the Developer Public Improvements by the City, any of the Developer
Public Improvements become defective in the commercially reasonable judgment of
the City, Developer agrees to repair or replace, as directed by the City and at the
Developer's sole cost and expense, such defective work or materials within thirty (30)
days after Formal Notice from the City to Developer.
2.10. CITY ACCEPTANCE. The Developer shall give Formal Notice to the City within
fifteen (15) days after the Developer Public Improvements have been completed in
accordance with this Development Contract and the Development Plans. The City
shall, within thirty (30) days after receipt of such Formal Notice, inspect the
Developer Public Improvements and notify the Developer of any Developer Public
Improvements that do not conform to this Development Contract, the Development
Plans, or City ordinances. Upon compliance with this Development Contract, the
Development Plans, and City ordinances, Developer shall give Formal Notice of its
approval of the Developer Public Improvements and the Developer Public
Improvements shall become the property of the City. If the Developer Public
Improvements do not comply with any of this Development Contract, the
Development Plans, or City ordinances, the City shall give Formal Notice to the
Developer of the need for further work to achieve such compliance, and Developer
shall promptly make best efforts to achieve such compliance in an expedient fashion.
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.
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3.3. TIME OF PAYMENT. The Developer shall pay all bills from the City within thirty
(30) days after delivery of an invoice from the City. Invoices not paid within thirty
(30) days shall accrue interest at the rate of 6% per year, beginning from the date of
the invoice and continuing until such time that the invoiced amount, plus all interest
accrued thereon, has been paid in full.
ARTICLE 4
DEVELOPER REPRESENTATIONS 'WARRANTIES AND COVENANTS
4.1. DEVELOPER REPRESENTATIONS AND WARRANTIES. Developer hereby
represents and warrants as follows (the following in this Section 4.1, collectively, the
"Developer Warranties "):
A. AUTHORITY. Developer is organized 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
materially 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 for 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 Development Property, the Development Plans and the
Developer Improvements; and Developer is not aware of any pending or
threatened claim of any such violation.
D. NO LITIGATION. To the best of Developer's knowledge and except as
disclosed in writing to the City, there is no suit, action, arbitration or legal,
administrative or other proceeding or governmental investigation pending, or
threatened against or affecting Developer, of affecting the Development
Property, 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.
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E. FULL DISCLOSURE. None of the representations 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.
F. TWO YEAR WARRANTY ON PROPER WORD 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 the repair work being
completed.
4.2. DEVELOPER COVENANTS. Developer hereby covenants to the City as follows:
A. USE. In accordance with this Development Contract and all approvals
granted in connection therewith, the Property will be used as a religious
facility, and for no other purpose.
B. 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.
C. CONSTRUCTION STAGING. Prior to the issuance of construction
permits, the Developer shall submit proposed construction routes and
construction access locations for review and approval by the City
Representative. The Developer shall also provide a construction staging plan
depicting material storage areas and contractor parking areas. A right of way
permit is required for any construction related impacts to the public right of
way. Developer agrees to stage materials and make use of access routes only
as depicted by the plans approved by the City Representative.
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 Property,
the Development Plans and the Developer Improvements.
ARTICLE 5
CITY REPRESENTATIONS AND WARRANTIES
The City hereby represents and warrants that it is a municipal corporation duly
incorporated and validly existing in good standing the laws of the State of Minnesota, and that it
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has the right, power, legal capacity and authority to enter into and perform its obligations under
this Development Contract.
ARTICLE 6
INDEMNIFICATION
6.1. INDEMNIFICATION OF THE CITY. Except for any damages or 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:
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 in relation to the Developer Improvements;
E. failure by the Developer to pay for materials in relation to the Developer
Improvements;
F. failure to obtain the necessary permits and authorizations to construct the
Developer Improvements;
G. any defect in the construction of the Developer 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 a period of
thirty (30) days within which to cure the default (the "Cure Period "). At the sole
discretion of the City Representative, the Cure Period may be extended by the City
for a reasonable period of time (the "Extended Cure Period "), provided that the
Developer submits to the City, within the Cure Period, a Formal Notice identifying a
reasonable plan and timeline for cure of the default. If the Developer does not cure
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the Developer Default within the Cure Period or Extended Cure Period, as applicable,
or if Developer at any time during the Extended Cure Period has failed to diligently
pursue to completion the plan identified by Developer in its request for extension of
the Cure Period, 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
Development Property;
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 receipt of an invoice by the City reimburse the City for any
costs and expenses incurred by the City. Invoices not paid within thirty (30)
days shall accrue interest at the rate of 6% per year, beginning from the date
of the invoice and continuing until such time that the invoiced amount, plus all
interest accrued thereon, has been paid in full. 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, including but
not limited to notice and hearing requirement and any claim that the special
assessments exceed benefit to the Development Property. The Developer and
Owner hereby waive any appeal rights up to the "Total Cost and Escrow
Amount" indicated on Exhibit C pursuant to Minn. Stat. 429.081.
Upon the occurrence and during the continuance of an event 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 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
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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 7.1(E), 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 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. 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. 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 City Representative,
resulting from a 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 a 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 Property. 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 in the amount of
$46,875.00 as set forth on Exhibit C (the "Security "). All cost estimates shall be
acceptable to the City Representative. The total escrow amount was calculated as
shown on the attached Exhibit C. The bank issuing the irrevocable letter of credit 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 Security shall be
maintained until the landscaping improvements in Section 8.2 below have been
accepted by the City and the warranty period under Section 4.1(F) hereof has expired,
and further provided that if the Security is in the form of an irrevocable letter of
credit, such letter shall state that at least sixty (60) days prior to the expiration date
the issuing bank will notify the City if the bank elects not to renew for an additional
period. The Security shall secure compliance by the Developer with the terms of this
Development Contract. The City may draw down on the Security, for any of the
following reasons:
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A. a Developer Default, following the notice and cure periods provided for in
Section 7.1 hereof, or
B. without any further notice and notwithstanding Section 7.1 hereof, if the
Security is in the form of an irrevocable letter of credit, within ten (10)
business days prior to the date on which such letter is scheduled to lapse, if the
City has not received written evidence of the renewal of such irrevocable
letter of credit.
With City approval, the Security 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, the Security may be reduced to an amount such that the
percentage of the Security that has been released is proportional to the percentage of
the Developer Public Improvements that have been completed, measured in terms of
costs under the approved Development Plans. Notwithstanding the foregoing, ten
percent (10 %) of the Security shall be held by the City until such time that the
landscaping improvements have been accepted by the City and the warranty period
under Section 4.1(F) hereof has expired. In the alternative, provided at least ninety
percent (90 %) of the Developer Public Improvements have been completed, the
Developer may post a bond satisfactory to the City in an amount equal to ten percent
(10 %) of the Security, which shall remain in place until the landscaping
improvements have been accepted by the City and the warranty period under Section
4.1(F) hereof has expired.
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 any
work was done without City inspection and such work is not readily visible by a City
inspector, 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 Developer Improvements.
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9.2. NO THIRD PARTY RECOURSE. Third parties shall have no recourse against 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. BINDING AGREEMENT. The parties mutually recognize and agree that all terms
and conditions of this recordable Development Contract shall run with the Property
and shall be binding upon the heirs, successors, administrators and assigns of the
Developer.
9.5. CONTRACT ASSIGNMENT. The Developer may not assign this Development
Contract without the written permission of the City, which may be given or withheld
in the City's sole discretion.
9.6. 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.
9.7. GOVERNING LAW. This Development Contract shall be governed by and
construed in accordance with the laws of the State of Minnesota.
9.8. 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.
9.9. 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.
9.10. INCONSISTENCY. If the Development Plans are inconsistent with the words of
this Development Contract or if the obligations imposed hereunder upon the
12
Developer are inconsistent, then that provision or term which imposes a greater and
more demanding obligation on the Developer shall prevail.
9.11. ACCESS. The Developer hereby grants to the City, its agents, employees, officers,
and contractors a license to enter the Property to perform all inspections deemed
appropriate by the City during the installation of Developer Improvements by the
Developer.
9.12. INSTALLATION AND MAINTENANCE OF LANDSCAPING AND
SCREENING. The following regulations shall govern the installation and
maintenance of landscaping, and of screening materials for the screening of trash
handling equipment and mechanical equipment.
A. All landscaping materials and screening materials shall be installed
concurrently with site development and prior to issuance of a final
certificate of occupancy for any building on the Property, and shall
conform to City code in all respects.
& The City may draw down on the Security, or portions thereof, in order to
install, maintain and /or replace materials for a period of time to include
two (2) full 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 City Representative.
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 Property turf irrigation systems shall include rain
detecting shutoff devices to control irrigation function during wet weather.
9.13. RECORD DRAWINGS. The Owner shall provide to the City, upon completion of
the Developer Improvements, a complete set of drawings (the "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 be provided to the City Representative 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.
9.14. ADDITIONAL AGREEMENTS.
A. Maintenance Agseement. Upon the completion of the Developer Public
Improvements, the Owner shall execute a "Maintenance Agreement" in the
form attached hereto as Exhibit D and shall immediately file the Maintenance
13
Agreement with the Anoka County Recorder's Office. In addition to the
agreement with the City, the Owner shall execute a "Maintenance Agreement"
in the form attached hereto as Stormwater Facilities Maintenance Agreement
With Access Rights and Covenants, as required by the Rice Creek Watershed
District, and shall immediately file the "Maintenance Agreement" with the
Anoka County Recorder's Office.
B. Erosion Control. Prior to issuance of a land alteration permit for the
Development Property, Developer shall submit to City Representative and
obtain City Representative's written approval of Stormwater Pollution
Prevention Plan ( SWPPP) for the Development Property. Developer's
SWPPP must meet the Best Management Practices standards set by the
Minnesota Pollution Control Agency and City standards. Developer's
SWPPP shall include all perimeter erosion control features, temporary
stockpile locations, turf restoration procedures, concrete truck washout areas
and any other best management practices to be utilized within the Project.
C. Stormwater Facilities Construction. "Stormwater Facilities" shall include:
detention basins, retention basins, filtration systems (such as rainwater
gardens, vegetated swales, infiltration basins, vegetated filters, filter strips,
curb -less parking lot islands, parking lot islands with curb -cuts, traffic islands,
tree box filters, bio- retention systems or infiltration trenches), underground
systems (such as media filters, underground sand filters, underground vaults,
sedimentation chambers, underground infiltration systems, pre - manufactured
pipes, modular structures, hydrodynamic separators, and such other similar
facilities as are necessary for the achievement of stormwater management
objectives as would be accomplished by the above - referenced facilities.
Stormwater Facilities shall be maintained by the Developer during
construction of the Project and for a minimum of two (2) full growing seasons
after completion of the Project to ensure that soil compaction, erosion,
clogging, vegetation loss, channelization of flow or accumulation of sediment
are not occurring, and thereafter by the Owner of the Property. Planting and
maintenance plans, as applicable, for the installation of Stormwater Facilities,
shall be submitted to the City Representative prior to any building permits
being issued for the Project. Developer shall employ a qualified design
professional to monitor construction of the Stormwater Facilities for
conformance to the Minnesota Pollution Control Agency publication entitled
"Minnesota Stormwater Manual" current edition. Maintenance techniques
must be used during construction to protect the infiltration capacity of all
Stormwater Facilities by limiting soil compaction to the greatest extent
possible. This must include delineation of the proposed infiltration system
with erosion control fencing prior to construction; installation of the
infiltration system using low- impact earth moving equipment; and not
allowing equipment, vehicles, supplies or other materials to be stored or
allowed in the areas designated for Stormwater Facilities during construction.
In areas of structural infiltration Developer shall prior to construction of the
14
infiltration system provide a plan that addresses: (i) construction management
practices to assure infiltration systems will be functional; (ii), erosion control
measures; (iii) infiltration capacity; (iv) performance specifications that the
completed infiltration systems must meet to be considered functional by the
City and (v) corrective actions that will be taken if the infiltration system does
not meet the performance specification. All Stormwater Facilities must be
inspected prior to final grading to ensure that the area is infiltrating as
proposed and to determine if corrective measures are required to allow
infiltration as proposed.
D. Stonnwater Facilities Monitoring. Field verification of post - construction
infiltration rates must be provided to the City within 30 days after the first
rainfall event of /z inch or greater after the Stormwater Facilities become
operational. If infiltration rates are less than what was proposed to the City
Representative in the planting and maintenance plans referenced in Section
9.15(C) hereof, a plan to restore adequate infiltration must be provided within
90 -days of the field verification test. The work required to bring the
Stormwater Facilities into compliance must be implemented within 60 days of
City approval of the plan. Pervious surfaces shall be stabilized with seed and
mulch or sod and all impervious surfaces must be completed prior to final
grading and planting of the Stormwater Facilities. If requested, Developer
shall grant to any watershed district with jurisdiction over the Development
Property (including the Rice Creek Watershed District), easements relating to
the maintenance and monitoring of the Stormwater Facilities, in form and
substance as is customary for such easements.
E. The Owner hereby agrees to dedicate a 10 foot easement to accommodate a
public trail, spanning the northern property line, from Stinson Boulevard to
McKinley Street.
F. The City agrees to construct and pay for the trail.
G. The owner shall dedicate public drainage and utility easements around the
periphery of the Site and storm water pond and public trail. The owner is
responsible for writing and recording these easements. The easements must be
recorded with the Anoka County Recorder's Office. Documentation that the
easements have been recorded shall be submitted to the City.
9.15. RELEASE OF DEVELOPMENT CONTRACT. Upon completion of all
Developer Improvements and all Developer Public Improvements and upon the
expiration of the two -year warranty period set forth in Section 4.1(F) hereof, the
Developer may submit to the City a draft release of this Development Contract for
review and approval by the City's attorney.
15
729269 -v1
[SIGNATURES TO APPEAR ON FOLLOWING PAGES]
16
IN WITNESS WHEREOF, the parties have executed this Development Contract as of
CITY:
CITY OF COLUMBIA HEIGHTS
a Minnesota municipal corporation
By:
Donna Schmitt, Mayor
B
Y•
Walter Fehst, City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF ANOKA )
The foregoing instrument was acknowledged before me this 9h day of April, 2018, by
Donna Schmitt and by Walter Fehst, respectively being the Mayor and City Manager of the City
of Columbia Heights, a Minnesota municipal corporation, who executed the foregoing
instrument on behalf of said municipal corporation.
1�0)&tve? jalo i"to
Notary Public
f ifA KEEN SHARON BRUNO1�
Notary Pubk- Minnesate
VV +Rar+ My Commrulon EVIMS Jan 21, 2 i
17
IN WITNESS WHEREOF, the parties have executed this Development Contract as of
DEVELOPER & OWNER:
Holy Spirit Aociation for the Unification of World Christianity, a California Corporation
r � 1
By :f
Name: Kaye "Al en
Its: Corporate Si cretary
STATE OF NEW YORK
ss.
COUNTY OF t,✓ )
The foregoing instrument was acknowledged before me this [f] day of [r], 2018, by
Kaye Allen, the Corporate Secretary of Holy Spirit Association for the Unification of World
Christianity, a California Corporation, who executed the foregoing instrument on behalf of said
California Corporation.
Notary Public
LOUISE PERLOWITZ
NOTARY PUBLIC -STATE OF NEW YORK
No. Ol PE6191437
QUOIIf1ed In Queens County
My Commisslon Expires August 11, 2020
W.
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
That certain real property in Anoka County, Minnesota, legally described as follows:
LOTS 4 & 5 BLK 1 WALTON'S SUNNY ACRES 2ND ADDITION
EXHIBIT B
LIST OF DEVELOPMENT PLANS
Those certain plans, specifications and design drawings prepared by Lampert Architects,
dated November 3, 2017, titled HSA -UWC Church, and Plowe Engineering, Inc., dated
November 6, 2017, titled HSA -UWC Church, which plans were approved by the City of
Columbia Heights Planning and Zoning Commission on December 5, 2017.
F.XHTBTT C
DEVELOPER PUBLIC IMPROVEMENTS AND REQUIRED ESCROW
Improvements and Escrow Items
ITEM
COST
Site Restoration
$10,000.00
Street Restoration
$12,500.00
Connection to Public Utilities
$5,000.00
Site Landscaping
$10,000.00
Equals:
$37,500.00
Multiplied By: 1.25
$37,500.00 x
1.25
Equals:
$46,875.00
TOTAL COST AND ESCROW AMOUNT:
$46,875.00
*The Developer Public Improvements shall be completed within 12 months following the date of
this Development Contract.
In addition to the Escrow or Letter of Credit required, the Developer shall deposit $3,500.00 in
cash with the City with the execution of this Development Contract. This $3,500.00 shall be to
pay the City for the past and future engineering site inspection fees 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 $3,500.00 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.
EXHIBIT I)
FORM OF MAINTENANCE AGREEMENT
MAINTENANCE AGREEMENT
THIS MAINTENANCE AGREEMENT ( "Agreement ") is made on this 9th day of
April, 2018, by and between Holy Spirit Association for the Unification of World
Christianity, a California Corporation ( "Owner ") and the City of Columbia Heights, a
municipal corporation under the laws of the State of Minnesota (the "City ") (Owner and City are
sometimes hereinafter, collectively, the "Parties ").
WITNESSETH:
WHEREAS, the Parties have entered into a Development Contract for Holy Spirit
Association for the Unification of World Christianity, a California Corporation (the
"Development Contract ") dated the 91h day of April, 2018, relating to the construction and
development of a religious facility by Owner, on the real property owned by Owner, located at
3836 Stinson Boulevard NE, Columbia Heights, Minnesota and legally described on Exhibit A
attached hereto (the "Property ");
WHEREAS, pursuant to the Development Contract, in the location depicted on Exhibit B
attached hereto (the "Improvements "), and Owner will be responsible for the maintenance and
repair to, and snow removal from, such Improvements; and
WHEREAS, pursuant to the Development Contract, the Parties have agreed to enter into
this Agreement, to provide for such maintenance and repair to, and snow removal from, the
Improvements in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises of the Parties hereto and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto agree as follows:
1. Design and Construction. Owner, at Owner's sole cost and expense, will be
responsible for the design, construction and installation of the Improvements, in accordance with
the "Development Plans" (as that term is defined within the Development Contract) or as
otherwise approved in writing by the City. Owner shall obtain all permits and approvals that are
required by the City in connection with the construction and installation of the Improvements,
and the City shall inspect the work to confirm that it is in conformity with City standards.
2. Maintenance. Once the Improvements have been constructed, and during the
term of this Agreement, Owner will be responsible, at its sole cost and expense, for the routine
maintenance, repair, replacement and restoration of the Improvements. Without limiting any of
E -1
the foregoing, specifically included in Owner's obligations under this section related to the
Improvements are all site improvements, including the stormwater BMP's.
3. License. The City hereby grants Owner, its assigns, contractors and employees, a
license to access the Improvements for purposes of carrying out its obligations under the terms of
this Agreement.
4. Right to Perform. Without limiting any other provision of this Agreement, if
Owner is in continuing default with respect to its obligations to maintain the Improvements in
accordance this Agreement, the City shall have the right, but not the obligation, to cure such
default by the payment of money or the performance of some other action, subject to
reimbursement of such expense by Owner; provided, that the City, acting in good faith, shall
have the right to cure such default upon such advance notice to the Owner as is reasonably
possible under the circumstances or, if necessary in the case of emergency, without advance
notice, so long as notice is given as soon as possible thereafter. In the event the City shall cure a
default, the Owner shall reimburse the City for all reasonable out -of- pocket costs and expenses
incurred in connection with such curative action, plus (i) ten percent (10 %) thereof as
compensation for administration, overhead and other non - out -of- pocket costs, and (ii) interest at
the an interest rate equal to the lesser of (y) the "Prime Rate" in the Wall Street Journal under the
heading Money Rates, plus 4 %, and (z) the maximum lawful rate of interest, within ten (10) days
of receipt of demand, together with reasonable documentation supporting the expenditures made.
In the alternative, the City may in whole or in part, specially assess against the Property any of
the costs and expenses incurred by the City under this Section; and the Owner hereby waives any
and all procedural and substantive objections to the performance of the City's work hereunder
and the special assessment resulting therefrom.
5. Notices. All notices required or permitted to be given hereunder shall be given in
writing. A notice or other communication shall be deemed to have been given and shall be
effective, (i) if delivered by hand, when physically received by the party to whom notice is being
delivered, or upon such party's refusal to accept delivery, or (ii) if delivered by an overnight
delivery service or by United States certified mail, on the date such notice or other
communication is deposited with the overnight delivery service or deposited in the U.S. mail
postage prepaid addressed to the other party, whichever occurs earlier. As of the date of this
Agreement, the notice addresses for the Parties are as follows:
City: City of Columbia Heights
Attention: City Manager
590 40th Avenue N.E.
Columbia Heights, MN 55421
Owner: Holy Spirit Association for the Unification of World Christianity, a
California Corporation)
4 West 43rd Street, New York, NY 10036
E -2
with copy to: Keith Anderson
8549 Forestview Lane N
Maple Grove, MN 55369
6. Successors and Assigns. The obligations of Owner hereunder shall run with the
Property. This Agreement shall be binding upon and inure to the benefit of Owner and the City
and their respective successors and assigns.
7. Severahility. If any provision of this Agreement is invalid or unenforceable, such
provision, if feasible, shall be deemed to be modified to be within the limits of enforceability or
validity; if, however, the offending provision cannot be so modified, it shall be stricken and all
other provisions of this Agreement in all other respects shall remain valid and enforceable.
8. Headings. The paragraph headings or captions appearing in this Agreement are
for convenience only, are not a part of this Agreement and are not to be considered in
interpreting this Agreement.
9. Entire Agreement; Amendment. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject matter hereof and
fully supersedes all prior written or oral agreements and understandings between the parties
pertaining to such subject matter. This Agreement shall not be modified, amended,
supplemented or revised, except by a written document signed by both parties.
10. Recitals /Exhibits. The above recitals are true and correct and constitute an
integral part of this Agreement. All exhibits referred to in and attached to this Agreement are
incorporated in and made a part of this Agreement.
11. Controlling Lary. This Agreement shall be construed, performed and enforced in
accordance with the laws of the State of Minnesota.
12. Counterpart Signatures. This Agreement maybe executed simultaneous in two
or more counterparts, each of which shall be deemed an original, and all of which together shall
constitute on and the same instrument.
[Signatures to appear on following page]
E -3
IN WITNESS WHEREOF, the parties have executed this Maintenance Agreement as of
CITY:
CITY OF COLUMBIA HEIGHTS
a Minnesota municipal corporation
By:
k �jf-
Donna Schmitt, Mayor
By:
r7
Walter Fehst, City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF ANOKA )
The foregoing instrument was acknowledged before me this 91h day of April, 2018, by
Donna Schmitt and by Walter Fehst, respectively being the Mayor and City Manager of the City
of Columbia Heights, a Minnesota municipal corporation, who executed the foregoing
instrument on behalf of said municipal corporation.
Notary Public
�..w,r.hrnnr;r4
KATHLEEN SHARON BRUNO
� .
� ` Notary Public-Minnesota
�. My C..ih bn FaS I— Jan 31,2=
` igl'tt41l4- -
E -4
IN WITNESS WHEREOF, the parties have executed this Maintenance Agreement as of
OWNER:
Holy Spirit Association for the
Unification of World Christianity,
a California Corporation
By:
Name: Kaye lien
Its: Corporate 'Secretary
STATE OF NEW YORK
) ss.
COUNTY OF 111,w Y.P r ' )
The foregoing instrument was acknowledged before me this [0] day of'[*], 2018, by
Kaye Allen, the Corporate secretary of Holy Spirit Association for the Unification of World
Christianity, a California Corporation, who executed the foregoing instrument on behalf of said
California Corporation.
r
Notary Public
LOUISE PERLOWITZ
NOTARY PUBLIC -STATE OF NEW YORK
No. 01 PE6191437
Qualified in Queens County
My Commission Expires August 11, 2020
E -5
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
That certain real property in Anoka County, Minnesota, legally described as follows:
LOTS 4 & 5 BLK 1 WALTON'S SUNNY ACRES 2ND ADDITION
E -6
EXHIBIT B
DEPICTION OF IMPROVEMENTS
Site Plan dated November 3, 2017
Stormwater and Utility Plan dated November 6, 2017
E -7