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HomeMy WebLinkAbout2021-3084DEVELOPMENT PLANNING CONTRACT FOR Westgate of Columbia Heights COLUMBIA HEIGHTS, MINNESOTA Contract # 2021-3084 TABLE OF CONTENTS TO CITY OF COLUMBIA HEIGHTS DEVELOPMENT CONTRACT FOR Westgate of Columbia Heights, COLUMBIA HEIGHTS, MfNNESOT A 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 1.12 Plat 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 Constr uction 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 REPRE SENTATIONS, WARRANTIES AND COVENANTS 4.1 Developer Representations and Warranties A.Authority ii 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 REPRESENT A TIO NS 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 -LETTER OF CREDIT 8.1 Letter of Credit Requirement 8.2 Letter of Credit Release and Letter of Credit 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 Park Dedication 9 .14 Record Drawings 111 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 Imp rovements" 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. 2 th (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. 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. ARTICLE3 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. 5 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 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. ARTICLE4 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, jud gment 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 6 of any federal, state, local or foreign court, department, agency or instrumentality. 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 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. 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 senior assisted living 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 ST AGING. 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. 7 ARTICLES 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 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. ARTICLE7 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, 8 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 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 9 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: 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. LETTER OF CREDIT RELEASE AND LETTER OF CREDIT 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.l(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. 11 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 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. B.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. 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 $8,500 and that such fees shall be paid by Developer prior to issuance of any and all permits. The calculation shall be as provided in Exhibit D. 9.14. 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 13 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. 9.15. ADDITIONAL AGREEMENTS. A.Maintenance Agreement. The Owner of the Development Property, and its successors and assigns beyond the expiration of this Development Contract, shall be responsible for maintenance and repair to all on-site storm water BMP's. Upon the completion of the Developer Improvements, and Developer Public Improvements, the Owner shall execute a "Maintenance Agreement" in the form attached hereto as Exhibit E 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, curbless parking lot islands, parking lot islands with curb-cuts, traffic islands, tree box filters, bioretention 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, hydrodyn amic 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 Storm water Facilities for conformance to the Minnesota Pollution Control Agency publication entitled 14 "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 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.Stormwater Facilities Monitoring. Field verification of post-construction infiltration rates must be provided to the City within 30 days after the first rainfall event of½ inch or greater after the Storm water 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. I 5(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 Mississippi Watershed Management Organization), easements relating to the maintenance and monitoring of the Storm water Facilities, in form and substance as is customary for such easements. 9.16. 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. [SIGNA TURES TO APPEAR ON FOLLOWING PAGES] 15 IN WITNESS WHEREOF, the parties have executed this Development Contract as of DEVELOPER & OWNER: Westgate of Columbia Heights, LLC a limited liability company -? By:c:--�---- Wade Tollefson, Manager ST A TE OF MINNESOTA ) ) ss. COUNTY OF AiJol41 ) The foregoing instrument was acknowledged before me this J.5-r1( day of March, 2021, by Wade Tollefson, the Manager of Westgate of Columbia Heights, LLC, a Minnesota limited liability company, who executed the foregoing instrument on behalf of said limited liability company. 17 EXHIBIT C DEVELOPER PUBLIC IMPROVEMENTS AND REQUIRED LETTER OF CREDIT Improvements and Letter of Credit Items ITEM COST 1.Erosion Control/Restoration 12,5 00 2.Site Utilities, Storm Water BMP $15 0,000 3.Public Street Connections $NA- 4.Landscaping (incl. Retaining Walls)$22,500 Subtotal: $185,000 MULTIPLIED BY: 1.20 $222,000 TOT AL COST AND LETTER OF CREDIT $222,000 AMOUNT: *The Developer Public Improvements shall be completed within 12 months following the date of this Development Contract. In addition to the letter of credit required above, the DEVELOPER shall also deposit $5,000 in cash with the CITY contemporaneously with execution of this DEVELOPMENT CONTRACT. This $5,000 shall be to pay the CITY for the past and future engineering site inspection fees with at the CITY's standard rates charged for such tasks. The CITY represents to the DEVELOPER that the sum of $0 is presently outstanding for such site inspection fees and that no additional amount will be charged to the DEVELOPER for engineering site inspection fees incurred prior to the effective date of this DEVELOPMENT CONTRACT. Upon acceptance of the DEVELOPER PUBLIC IMPROVEMENTS, the CITY shall return to the DEVELOPER any remaining portion of the $5,000 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 $5,000 deposit; the DEVELOPER is responsible for payment of such excess within thirty (3 0) days after billing by the CIT. EXHIBITD PARK DEDICATION CALCULATION PID Land Value 35-30-24-43-0125 (address unassigned)$85,000* TOTAL=$85,000 10% ofTotal Value =$8,500 *Land value was established as the sale price for the property paid by Contractors Capital Company, LLC, as evidenced in the settlement agreement dated I 0-28-2020. EXHIBIT E FORM OF MAINTEN ANCE AGREEMENT CITY OF COLUMBIA HEIGHTS COUNTY OF ANOKA STATE OF MINNESOTA STORMWA TER FACILITIES MAINTENANCE AGREEMENT WITH ACCESS RIGHTS AND COVENANTS This AGREEMENT, made and entered into this day of March, 2021, for the maintenance and repair of certain Stormwater Management Facilities is entered into between Westgate of Columbia Heights, LLC (hereinafter referred to as "OWNER") and the City of Colum bia Heights (hereinafter referred to as "CITY") for the benefit of the CITY, the OWNER, the successors in interest to the CITY or the OWNER, and the public generally. WITNESS ETH WHEREAS, the undersigned is the owner of that certain real property located at PID 35-30-24-43-0125, hereinafter called the "Property". WHEREAS, the undersigned is proceeding to build on and develop the property; and has submitted the Site Plan and Final Plat known as Westgate of Columbia Heights, hereinafter called the "Plan", which is expressly made a part hereof, as approved or to be approved by the City, provides for detention of stormwater within the confines of the property; and WHEREAS, the City and the undersigned, its successors and assigns, including any homeowners association, (hereinafter the "Landowner") agree that the health, safety , and welfare of the residents of the City of Columbia Heights, Minnesota, requires that on-site stormwater management facilities be constructed and maintained on the Property; and WHEREAS, the City requires that on-site stormwater management facilities as shown on the Plan (the "Facilities") be constructed and adequately maintained by the Landowner. NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants contained herein, and the following terms and conditions, the parties hereto agree as follows: (1)When a new drainage control facility is installed, the party having the facility installed shall obtain a copy of the as-built plans from the City of Columbia Heights Engineering Department. Responsible parties shall make records of the installation and of all maintenance and repair, and shall retain the records for at least ten years. These records shall be made available to the City of Columbia Heights' City Engineer during Inspection of the facility and at other reasonable times upon request of the City Engineer. E-1 (2)The following operational maintenance activities shall be performed on all permitted systems on a regular basis or as needed: a)Removal of trash and debris, b)Inspection of inlets and outlets, c)Removal of sediments when the storage volume or conveyance capacity of the stormwater management system is below design levels d)Ensure systems designed for infiltration are drawing down within 48 hours, and e)Stabilization and restoration of eroded areas. (3)Specific operational maintenance activities are required, depending on the type of permitted system, in addition to the practices listed in subsection (2), above. a)Retention, swale and underdrain systems shall include provisions for: 1.Mowing and removal of grass clippings, and 2.Aeration, tilling, or replacement of topsoil as needed to restore the percolation capability of the system. If tilling or replacement of the topsoil is utilized, vegetation must be established on the disturbed surfaces. b)Ex filtration systems shall include provisions for removal of sediment and debris from pretreatment or sediment collection systems. c)Wet detention systems shall include provisions for operational maintenance of the littoral zone. Replanting shall be required if the percentage of vegetative cover falls below the permitted level. It is recommended that native vegetation be maintained in the littoral zone as part of the system's operation and maintenance plan. Undesirable species such as cattail and exotic plants should be controlled if they become a nuisance. d)Dry detention systems shall include provisions for mowing and removal of grass clippings. (4)If the system is not functioning as designed and permitted as determined by the City Engineer, operational maintenance must be performed immediately to restore the system. If operational maintenance measures are insufficient to enable the system to meet the design and performance standards of this chapter, the permittee must either replace the system or construct an alternative design. (5)The City may enter upon the Property and take such steps as are necessary to correct deficiencies identified in the inspection report and to charge the costs of such repairs to the Landowner. This provision shall not be construed to allow the City to erect any structure of permanent nature on the land of the Landowner outside of the easement for the storm water management facilities. It is expressly understood and agreed that the City is under no obligation to routinely maintain or repair said facilities, and in no event shall this Agreement be construed to impose any such obligation on the City. The Landowner grants to the City, its authorized agents and employees, a non-exclusive, perpetual easement over, across, under and through the Property for such purposes. [Signatures to appear on following page] E-2 IN WITNESS WHEREOF, the parties have executed this Maintenance Agreement as of CITY: CITY OF COLUMBIA HEIGHTS a Minnesota municipal corporation By: ------------Amada Marquez Simula, Mayor By: ------------Kelli Bourgeois, City Manager ST A TE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) The foregoing instrument was acknowledged before me this __ day of ____ � 2021, by Amada Marquez Simula and by Kelli Bourgeois, 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 E-3 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY That certain real property in Anoka County, Minnesota, legally described as follows: Lot I, Block I, Westgate of Columbia Heights, Anoka County, Minnesota E-5 EXHIBIT B DEPICTION OF IMPROVEMENTS Site Plans and Utility Plans dated, January 27, 2020 Storm Water Management Report dated, January 6, 2020 E-6