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DEVELOPMENT CONTRACT FOR
PLAT OF
HUSET PARK SENIOR LIVING
ANOKA COUNTY, MINNESOTA
INDEX TO CITY OF COLUMBIA HEIGHTS
DEVELOPMENT CONTRACT FOR
HUSET PARK SENIOR LIVING, ANOKA COUNTY, MINNESOTA
RECITALS
ARTICLE 1— DEFINITIONS
1.1
Terms
1.2
City of Columbia Heights
1.3
Developer, Owner
1.4
Plat
1.5
Development Plans
1.6
Development Contract
1.7
Council
1.8
PWD
1.9
Director of PWD
1.10
County
1.11
Developer Improvements
1.12
Developer Public Improvements
1.13
Developer Default
1.14
Force Maj eure
1.15
Developer Warranties
A. Authority
B. No Default
C. Present Compliance With Laws
D. Continuing Compliance With Laws
E. No Litigation
F. Full Disclosure
G. Two Year Warranty On Proper Work and Materials
H. Obtaining Permits
1.16
City Warranties
A. Authority
1.17
Formal Notice
ARTICLE 2
— DEVELOPER IMPROVEMENTS
2.1
Developer Improvements
2.2
Boulevard and Area Restoration
2.3
Street Maintenance
2.4
Occupancy
2.5
Approval of Contractors and Engineer
2.6
Construction
2.7
Inspection
2.8
Faithful Performance of Construction Contracts
2.9
City Acceptance
ARTICLE 3 — RESPONSIBILITY FOR COSTS
3.1
Developer Improvement Costs
3.2
Enforcement Costs
3.3 Time of Payment
ARTICLE 4 — DEVELOPER WARRANTIES
4.1 Statement of Developer Warranties
ARTICLE 5 — CITY WARRANTIES
5.1 Statement of City Warranties
ARTICLE 6 — INDEMNIFICATION OF CITY
6.1 Indemnification of City
ARTICLE 7 — CITY REMEDIES UPON DEVELOPER DEFAULT
7.1 City Remedies
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 Recording
9.5 Binding Agreement
9.6 Contract Assignment
9.7 Amendment and Waiver
9.8 Governing Law
9.9 Counterparts
9.10 Headings
9.11 Inconsistency
9.12 Access
9.13 Landscaping
9.14 Park Dedication
9.15 Record Drawings
9.16 Additional Agreements
9.17 Release of Development Contract
EXHIBIT A — LIST OF DEVELOPMENT PLANS
EXHIBIT B — DEVELOPER PUBLIC IMPROVEMENTS
EXHIBIT C — ESCROW AND PARK DEDICATION CALCULATION
CITY OF COLUMBIA HEIGHTS
DEVELOPMENT CONTRACT FOR
HUSET PARK SENIOR LIVING
THIS AGREEMENT, made and entered into on the day of , 2016, by
and between the CITY OF COLUMBIA HEIGHTS, a municipality of the Sty to of
Minnesota, (hereinafter referred to as the CITY), and COLUMBIA HEIGHTS LEASED
HOUSING ASSOCIATES I, LLLP, (hereinafter referred to as the OWNER and
DEVELOPER) identified herein.
WHEREAS, the DEVELOPER has applied to the CITY for approval of the preliminary and
final PLAT;
WHEREAS, the CITY has approved the final PLAT 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 PLAT; AND
2. The DEVELOPER shall provide an irrevocable letter of credit, or cash deposit, in the
amount and with conditions satisfactory to the CITY, providing for the actual construction and
installation of such improvements within the period specified by the CITY.
WHEREAS, the DEVELOPER has filed Three (3) complete sets of the DEVELOPMENT
PLANS with the CITY;
WHEREAS, the DEVELOPMENT PLANS have been prepared by a registered professional
engineer and have been submitted to and approved by the DIRECTOR OF THE PWD.
NOW, THEREFORE, subject to the terms and conditions of this DEVELOPMENT
CONTRACT and in reliance upon the representations, warranties and covenants of the parties
herein contained, the CITY, OWNER and DEVELOPER agree as follows:
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 BUILDER. "DEVELOPER - OWNER" means
Columbia Heights Leased Housing Associates I, LLLP, a Minnesota Limited
Liability Limited Partnership.
1.4 PLAT. "PLAT" means the plat of HUSET PARK SENIOR LIVING, in the City
of Columbia Heights, Anoka County, Minnesota.
1.5 DEVELOPMENT PLANS. "DEVELOPMENT PLANS" means all those plans,
drawings, specifications and surveys identified and checked on the attached
EXHIBIT `A,' and hereby incorporated by reference and made a part of this
DEVELOPMENT CONTRACT.
1.6 DEVELOPMENT CONTRACT. "DEVELOPMENT CONTRACT" means this
instant contract by and among the CITY, OWNER and DEVELOPER.
1.7 COUNCIL. "COUNCIL" means the Council of the City of Columbia Heights.
1.8 PWD. "PWD" means the Public Works Department of the City of Columbia
Heights.
1.9 DIRECTOR OF PWD. "DIRECTOR OF PWD" means the Director of Public
Works Department of the City of Columbia Heights and his delegates.
1.10 COUNTY. "COUNTY" means Anoka County, Minnesota.
1.11 DEVELOPER IMPROVEMENTS. "DEVELOPER IMPROVEMENTS"
means and includes all the improvements identified on the attached EXHIBIT `B.'
1.12 DEVELOPER PUBLIC IMPROVEMENTS. "DEVELOPER PUBLIC
IMPROVEMENTS" means and includes, jointly and severally, all the
improvements identified and checked on the attached Exhibit B that are further
labeled "public ". DEVELOPER PUBLIC IMPROVEMENTS are improvements
to be constructed by the DEVELOPER within public right -of -way and which are
to be approved and later accepted by the CITY. DEVELOPER PUBLIC
IMPROVEMENTS are part of DEVELOPER IMPROVEMENTS.
1.13 DEVELOPER DEFAULT. "DEVELOPER DEFAULT" means and includes,
jointly and severally, any of the following or any combination thereof:
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.
1.14 FORCE MAJEURE. "FORCE MAJEURE" means acts of God, including, but
not limited to floods, ice storms, blizzards, tornadoes, landslides, lightning and
earthquakes (but not including reasonably anticipated weather conditions for the
geographic area), riots, insurrections, war or civil disorder affecting the
performance of work, blockades, power or other utility failures, and fires or
explosions.
1.15 DEVELOPER WARRANTIES. "DEVELOPER WARRANTIES" means that
the Developer hereby warrants and represents the following:
A. AUTHORITY. Developer is 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 PLAT and the DEVELOPMENT PLANS and
the DEVELOPER IMPROVEMENTS; and DEVELOPER is not aware of
any pending or threatened claim of any such violation.
D. CONTINUING COMPLIANCE WITH LAWS. DEVELOPER will
comply with all applicable federal, state and local statutes, laws and
regulations (including, without limitation, permits and licenses and any
applicable zoning, environmental or other law, ordinance or regulation)
affecting the PLAT and the DEVELOPMENT PLANS and the
DEVELOPER IMPROVEMENTS.
E. NO LITIGATION. To the best of DEVELOPER'S knowledge, there is
no suit, action, arbitration or legal, administrative or other proceeding or
governmental investigation pending, or threatened against or affecting
DEVELOPER, except as disclosed in writing to the City, or the PLAT, or
the DEVELOPMENT PLANS or the DEVELOPER IMPROVEMENTS.
DEVELOPER is not in material default with respect to any order, writ,
injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality.
F. FULL DISCLOSURE. None of the representatives and warranties made
by DEVELOPER or made in any exhibit hereto or memorandum or
writing furnished or to be furnished by DEVELOPER or on its behalf
contains or will contain any untrue statement of material fact or omit any
material fact the omission of which would be misleading.
G. TWO YEAR WARRANTY ON PROPER WORK AND
MATERIALS. The DEVELOPER warrants all work required to be
performed by it under this DEVELOPMENT CONTRACT against poor
material and faulty workmanship for a period of two (2) years after its
completion and acceptance by the CITY. The DEVELOPER shall be
solely responsible for all costs of performing repair work required by the
CITY within thirty (30) days of the repair work being completed.
H. OBTAINING PERMITS. The DEVELOPER shall obtain in a timely
manner and pay for all required permits, licenses and approvals, and shall
meet, in a timely manner, all requirements of all applicable, local, state
and federal laws and regulations which must be obtained or met before the
DEVELOPER IMPROVEMENTS may be lawfully constructed.
1.16 CITY WARRANTIES. "CITY WARRANTIES" means that the CITY hereby
warrants and represents as follows:
A. AUTHORITY. CITY is a municipal corporation duly incorporated and
validly existing in good standing the laws of the State of Minnesota.
CITY has the right, power, legal capacity and authority to enter into and
perform its obligations under this DEVELOPMENT CONTRACT.
1.17 FORMAL NOTICE. "FORMAL NOTICES" means notices given by one party
to the other if in writing and if and when delivered or tendered either in person or
by depositing it in the United States Mail and in a sealed envelope, by certified
mail, return receipt requested, with postage and postal charges prepaid, addressed
as follows:
If to CITY: City of Columbia Heights
Attention: City Manager
590 40th Avenue N.E.
Columbia Heights, Minnesota 55413
If to DEVELOPER Columbia Heights Leased Housing Associates I,
LLLP
c/o Ronald Mehl, Senior Developer
2905 Northwest Blvd
Suite 150
Plymouth, Minnesota 55441, and
Winthrop and Weinstine P.A.
Attention: John D. Nolde
225 South Sixth Street
Suite 3500
Minneapolis, MN 55402, and
Alliant ALP 80, LLC
c /o: Alliant Asset Management Company, LLC
21600 Oxnard Street, 12th Floor
Woodland Hills, CA 91367
Attn: Brian Goldberg, and
Bocarsly Emden, Cowen Esmail and Arndt, LLP
633 West 5th Street, 64th Floor
Los Angeles, CA
Attn: Kyle Arndt, Esq.
or to such other address as the party addressed shall have previously
designated by notice given in accordance with this Section. Notices shall be
deemed to have been duly given on the date of service if served personally on
the party to whom notice is to be given, or on the third day after mailing if
mailed as provided above, provided, that a notice not given as above shall, if
it is in writing, be deemed given if and when actually received by a party.
ARTICLE 2
DEVELOPER IMPROVEMENTS
2.1 DEVELOPER IMPROVEMENTS. The DEVELOPER shall install, at its own
cost, the DEVELOPER IMPROVEMENTS in accordance with the
DEVELOPMENT PLANS. The DEVELOPER IMPROVEMENTS shall be
completed by the dates shown on EXHIBIT `B,' except as completion dates are
extended by subsequent resolution of the COUNCIL. Failure of the CITY to
promptly take action to enforce this DEVELOPMENT CONTRACT after
expiration of time in which the DEVELOPER IMPROVEMENTS are to be
completed shall not waive or release any rights of the CITY; the CITY may take
action at any time thereafter, and the terms of this contract shall be deemed to be
automatically extended until such time as the DEVELOPER IMPROVEMENTS
are completed to the CITY's reasonable satisfaction.
2.2 BOULEVARD AND AREA RESTORATION. The DEVELOPER shall lay
cultured sod or hydro seed in all boulevards within 21 days of the completion of
street related improvements and restore all other areas disturbed by the
development grading operation in accordance with the approved erosion control
plan, over the entire PLAT.
2.3 STREET MAINTENANCE. The DEVELOPER shall clear, on a daily basis,
any soil, earth or debris from the streets and wetlands within or adjacent to this
PLAT resulting from the grading or building on the land within the PLAT by the
DEVELOPER or its agents, and shall restore to the CITY's specifications any
gravel base contaminated by mixing construction or excavation 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 PLAT shall occur until the
DEVELOPER IMPROVEMENTS have been installed. Unless otherwise agreed
to by the City, this provision excludes Site Landscaping and Site Street Lighting.
2.5 APPROVAL OF CONTRACTORS AND ENGINEER. Any contractor or
engineer preparing plans and specifications selected by the DEVELOPER to
design, construct or install any DEVELOPER PUBLIC IMPROVEMENTS must
be approved in writing by the DIRECTOR OF PWD, which approval shall not be
unreasonably withheld; provided however that the CITY hereby specifically
approves Loucks Engineers, BKV Group, Benson -Orth, Eagle Building
Company, Stonebridge Construction, Stevens Construction Corp., Big -D
Construction Corp. and Weis Builders for such purposes.
2.6 CONSTRUCTION. The construction, installation, materials and equipment
related to DEVELOPER PUBLIC IMPROVEMENTS shall be in accordance with
the DEVELOPMENT PLANS. The DEVELOPER shall cause the contractors to
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.
ARTICLE 3
RESPONSIBILITY FOR COSTS
3.1 DEVELOPER IMPROVEMENT COSTS. The DEVELOPER shall pay for the
DEVELOPER IMPROVEMENTS; that is, all costs of persons doing work or
furnishing skills, tools, machinery or materials, or insurance premiums or
equipment or supplies and all just claims for the same; and the CITY shall be
under no obligation to pay the contractor or any subcontractor any sum
whatsoever on account thereof, whether or not the CITY shall have approved the
contract or subcontract.
3.2 ENFORCEMENT COSTS. The DEVELOPER shall pay the CITY for costs
incurred in the enforcement of this DEVELOPMENT CONTRACT, including
engineering and attorneys' fees.
3.3 TIME OF PAYMENT. The DEVELOPER shall pay all bills from the CITY
within thirty (30) days after billing. Bills not paid within thirty (30) days shall
accrue interest at the rate of 6% per year.
ARTICLE 4
DEVELOPER WARRANTIES
4.1 STATEMENT OF DEVELOPER WARRANTIES. The Developer hereby
makes and states the DEVELOPER WARRANTIES.
ARTICLE 5
CITY WARRANTIES
5.1 STATEMENT OF CITY WARRANTIES. The City hereby makes and states
the CITY WARRANTIES.
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;
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
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, including but not
limited to notice and hearing requirement and any claim that the
special assessments exceed benefit to the PLAT. The
DEVELOPER and OWNER hereby waive any appeal rights up to
the amount indicated on EXHIBIT `C' pursuant to Minn. Stat.
429.081.
Upon 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 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 Director of PWD, resulting from the DEVELOPER
DEFAULT, the CITY may perform the work or improvement to be performed by
the DEVELOPER without giving any notice or FORMAL NOTICE to the
DEVELOPER and without giving the DEVELOPER 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. In the alternative, the CITY may, in
whole or in part, specially assess the costs and expenses incurred by the CITY;
and the DEVELOPER and OWNER hereby waive any and all procedural and
substantive objections to the installation and construction of the work and
improvements and the special assessments resulting there from, including but not
limited to notice and hearing requirements and any claim that the special
assessments exceed benefit to the PLAT. The DEVELOPER and OWNER
hereby waive any appeal rights up to the amount indicated on EXHIBIT `C'
pursuant to Minn. Stat. 429.081.
ARTICLE 8
ESCROW DEPOSIT
8.1 ESCROW REQUIREMENT. Contemporaneously herewith, the DEVELOPER
shall deposit with the CITY an irrevocable letter of credit, or cash deposit for the
amounts set forth on EXHIBIT `C.'
All cost estimates shall be acceptable to the DIRECTOR OF PWD. The total
escrow amount was calculated as shown on the attached Exhibit C. The 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 September 30, 2018. 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 September 30, 2018, 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 September 30, 2018.
With CITY approval, the irrevocable letter of credit or cash deposit may be
reduced pursuant to Section 8.2 from time to time as financial obligations are
paid.
8.2 ESCROW RELEASE AND ESCROW INCREASE: DEVELOPER
IMPROVEMENTS. Periodically, upon the DEVELOPER's written request and
upon completion by the DEVELOPER and acceptance by the CITY of any
specific DEVELOPER PUBLIC IMPROVEMENTS, ninety percent (90 %) of that
portion of the irrevocable letter of credit, or cash deposit covering those specific
completed improvements only shall be released. The final ten percent (10 %) of
that portion of the irrevocable letter of credit, or cash deposit, for 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.
ARTICLE 9
MISCELLANEOUS
9.1 CITY'S DUTIES. The terms of this DEVELOPMENT CONTRACT shall not
be considered an affirmative duty upon the CITY to complete any
DEVELOPMENT IMPROVEMENTS.
9.2 NO THIRD PARTY RECOURSE. Third parties shall have no recourse against
the CITY under this DEVELOPMENT CONTRACT.
9.3 VALIDITY. If any portion, section, subsection, sentence, clause, paragraph or
phrase of this DEVELOPMENT CONTRACT is for any reason held to be
invalid, such decision shall not affect the validity of the remaining portion of this
DEVELOPMENT CONTRACT.
9.4 RECORDING. The PLAT shall be recorded with the COUNTY Recorder and
the DEVELOPER shall provide and execute any and all documents necessary to
implement the recording.
9.5 BINDING AGREEMENT. The parties mutually recognize and agree that all
terms and conditions of this recordable DEVELOPMENT CONTRACT shall run
with the PLAT and shall be binding upon the heirs, successors, administrators and
assigns of the DEVELOPER.
9.6 CONTRACT ASSIGNMENT. The DEVELOPER may not assign this
DEVELOPMENT CONTRACT without the written permission of the 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 in
any number of counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
9.10 HEADINGS. The subject headings of the paragraphs and subparagraphs of this
DEVELOPMENT CONTRACT are included for purposes of convenience only,
and shall not affect the construction of interpretation of any of its provisions.
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 PLAT to perform all inspections
deemed appropriate by the CITY during the installation of DEVELOPER
IMPROVEMENTS by the DEVELOPER.
9.13 LANDSCAPING. Installation and Maintenance. The following regulations
shall govern the installation and maintenance of landscaping and screening
materials.
a) All landscaping materials and screening materials shall be installed in
conjunction with site development and prior to issuance of a final
certificate of occupancy and building.
b) A letter of credit or other security as acceptable to the CITY shall be
deposited with the DIRECTOR OF PUBLIC WORKS, in an amount equal
to ten percent (10 %) of the estimated cost of landscaping, fencing and /or
screening. The letter of credit, or portions thereof, shall be forfeited to
maintain and /or replace materials for a period of time to include at least
two (2) growing seasons, as defined by MnDOT specifications. A portion
of the letter of credit may be released after one growing season as
determined by the DIRECTOR OF PUBLIC WORKS.
C) A decorative, permanent fence similar, if not identical, to the existing
fence found west of Naegele Avenue shall be installed at the west property
line boundary within the University Avenue ROW, consisting of masonry
columns and iron fencing with a design approved by the CITY. The City
will assist the DEVELOPER to obtain the appropriate permits required by
MnDOT for fence installation within the University Avenue ROW. The
OWNER shall be responsible for the on -going maintenance of the fencing.
Any landscaping west of the fence shall require a MnDOT permit and
Maintenance Agreement, with copies provided to the CITY. Where new
fencing is installed along the MnDOT ROW, the DEVELOPER shall be
responsible for the removal of any existing chain link or other fencing to
the extent such removal may be permitted by MnDOT.
d) The OWNER shall be responsible for continued maintenance of fencing,
landscaping and screening materials to remain in compliance with the
requirements of this Section.
e) All DEVELOPMENT turf irrigation systems shall include rain detecting
shutoff devices to control irrigation function during wet weather.
9.14 PARK DEDICATION. Subject to reduction for all applicable existing credits in
favor of the DEVELOPER, the CITY hereby determines Park Dedication Fees in
the amount of $1,500.00 per unit, and that such fees are paid at Final PLAT
Approval by the CITY, or prior to issuance of any and all permits. The calculation
shall be as provided in EXHIBIT `C.'
9.15 RECORD DRAWINGS. The OWNER shall provide to the CITY, upon
completion of the DEVELOPER IMPROVEMENTS, a complete set of Record
Drawings documenting the constructed or "as- built" condition of the
DEVELOPER IMPROVEMENTS. The Record Drawings shall be submitted in
electronic and hard copy form consistent with CITY requirements, and provided
to the PWD within six (6) months of the completion of the DEVELOPER
IMPROVEMENTS. Additionally, the OWNER shall include in the Record
Drawings GPS Data of all sanitary sewer and water main service locations at the
service extensions or property lines. The GPS Data shall include X, Y & Z
coordinate data consistent with City requirements.
9.16 ADDITIONAL AGREEMENTS.
A. The OWNER and the CITY hereby agree that the maintenance costs of the
large storm water pond located at the northwest corner of 37`p' Street and
Huset Parkway shall be shared by the DEVELOPMENT and CITY on an 67%
(DEVELOPMENT) — 33% (CITY) split. Necessary storm water maintenance
activities shall be conducted or cause to be conducted by the CITY, with said
costs billed to the DEVELOPMENT by the CITY, payable within 30 days. In
order to enforce the provisions of this Section 9.16(C), the governing
documents of all homeowners' associations (collectively, the "HOA ") shall be
subject to the reasonable review and approval of the City Attorney to assure
that the HOA's documents include a requirement for said necessary storm
water pond maintenance and reimbursement to the City for two thirds (67 %)
of said cost.
B. The OWNER hereby agrees to place a 10 foot wide paved trail along the
University Avenue ROW. The CITY agrees to assist in MnDOT permitting
prior to the installation of the trail. The design and construction of the trail
shall be the responsibility of the OWNER, meeting CITY trail requirements.
C. The OWNER hereby agrees to place a 6 foot wide sidewalk along the 37th
Avenue NE ROW. The design and construction of the sidewalk shall be the
responsibility of the OWNER, meeting CITY sidewalk requirements.
D. The OWNER hereby agrees to construct a monument sign which will
incorporate the City logo. The design and construction of the sign shall be the
responsibility of the OWNER, subject to final approval by the CITY.
E. The DEVELOPER shall dedicate public easements over the public sidewalk
adjacent to 37th Avenue NE, as well as the onsite stormwater management
features, including the Stormwater Pond and water hydrants.
F. The OWNER and the CITY hereby agree to the Inspections and Maintenance
Activities for the Filtration System contained in Civil Sheet 3 -4.
9.17 RELEASE OF DEVELOPMENT CONTRACT. Upon completion of all
DEVELOPER IMPROVEMENTS and all DEVELOPER PUBLIC
IMPROVEMENTS, and upon the expiration of the Section 1.15G. TWO YEAR
WARRANTY ON PROPER WORK AND MATERIALS, the DEVELOPER may
submit to the CITY a draft release of this DEVELOPMENT CONTRACT for
review and approval by the CITY's attorney.
IN WITNESS WHEREOF, the parties have executed this DEVELOPMENT
CONTRACT.
CITY OF COLUMBIA HEIGHTS
Its: Mayor
By:
Walt F
Its: City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF ANOKA )
DEVELOPER:
COLUMBIA HEIGHTS LEASED
HOUSING ASSOCIATES I, LLLP,
A MINNESOTA LIMITED LIABILITY
LIMITED PARTNERSHIP
By: Columbia Heights Leased Housing Associates,
I, LLLP, a Minnesota Limited Li ility
Limited Par rslup
Its: General r eT.
By:
Ma S. Moor ouse
Its: Senior Vice President
On this day of 2016, before me a Notary Public within and for
said County, personally appeared to me G:{ry Peterson and Walt Fehst, personally known, who being each by
me duly sworn, each did say that they are respectively the Mayor and City Manager of the City of Columbia
Heights, the municipality named in the foregoing instrument, and that the seal affixed to said instrument was
signed and sealed in behalf of said municipality by authority of its City Council and said Mayor and City
Manager acknowledged said instrument to be the free act and deed of said municipality.
C&h&lr I &W(t
Notary Public 8Ft4}N^ Y
Notary Public �
STATE OF MINNESOTA ) Minnesota
C 1✓1 ) ss.
COUNTY OF )
On this '.-C] 4� day of , 2016, before me a Notary Public within and for said
County, personally appeared Mc rV-yVtp0 { ow f, to me personally 'known, who being by me duly sworn, said
that he is the Senior Vice President of Columbia Heights Leased Housing Associates I, LLC, the general
partner of Columbia Heights Leased Housing Associates I, LLLP, on behalf of said partnership.
4LLNJNo�tarry Public
A.
Mabry pubk
Mwta�ota
31
THIS INSTRUMENT DRAFTED BY:
Kevin Hansen, P.E.
Public Works Director /City Engineer
City of Columbia Heights
637 38`x' Avenue N.E.
Columbia Heights, MN 55421
763/706 -3705
James Hoeft
City Attorney
Barna, Guzy, and Steffen, ltd
200 Coon Rapids Boulevard
Suite 400
Coon Rapids, MN
763/783 -5122
EXHIBIT A
LIST OF DEVELOPMENT PLANS
DOMINIUM SENIOR HOUSING
PLANDESCRIPTIGN DESIGN PLANDATE
1. Development Plat Loucks
2. Erosion Control and Grading Plan Loucks
3. Street/Trail Plan (Private) Loucks
4. Utility /Site Plan (Public /Private) Loucks
5. Landscape Plan BKV Group
6. Street Light Plan (private) BKV Group
7. Building Plan BKV Group
_i_
EXHIBIT B
DEVELOPER PUBLIC IMPROVEMENTS
The items indicated with "PUBLIC" below are those DEVELOPER IMPROVEMENTS
that are DEVELOPER - PUBLIC IMPROVEMENTS.
COMPLETION DATE
3/31/18
3/31/18
3/31/18
9/30/18
9/30/18
9/30/18
9/30/18
9/30/18
IMPROVEMENT
Grading/Removals /Erosion
Control Plan
Utilities (Sanitary Sewer
and Water Mains)
Utilities (Storm Sewer)
Streets /Trail (Plat - Private)
Trails (Plat - Public)
Sidewalks (Plat — Public)
Landscaping
Street Lighting
Note: Pursuant to Section 2.4, all Developer Improvements must be completed prior to the
final occupancy of the building on Huset Park Senior Living. Unless otherwise agreed to
by the City, this provision shall exclude Site Landscaping and Site Street Lighting.
-2-
EXHIBIT C
ESCROW AND PARK DEDICATION CALCULATION (S)
Park Dedication Fee
$1,500 /unit x 191 units = $286,500
Land Credit from Phase I 767.058
_ $219,442
DEVELOPER IMPROVEMENTS
1. Erosion Control/Restoration
2. Site Utilities
3. Public Street Connections (1)
4. Landscaping (incl. Retaining Walls)
5. University Avenue Fence
6. Trail / Sidewalk
7. Monument Sign
MULTIPLIED BY: 1.25
EQUALS:
$ 45,000
$ 225,000
$ NA — existing curb cut
$ 195,000
$ 97,500
$ 35,000
$ 20,000
$ 617,500
$ 771,875
In addition to the deposit or letter of credit required above, the DEVELOPER shall also
deposit $10,000 in cash with the CITY contemporaneously with execution of this
DEVELOPMENT CONTRACT. This $10,000 shall be to pay the CITY for engineering
review and site inspection fees at the CITY's standard rates charged for such tasks. Upon
acceptance of the DEVELOPER PUBLIC IMPROVEMENTS, the CITY shall return to the
DEVELOPER any remaining portion of the $10,000 not otherwise charged against the
DEVELOPER for engineering review and inspection performed by the CITY. To the
extent the engineering review and inspection fees, calculated according to the CITY's
standard rates, exceed the $10,000 deposit, the DEVELOPER is responsible for payment of
such excess within thirty (30) days after billing by the CITY.