01 1/31/90
CITY OF NEW HOPE \-11-6 7
DEVELOPMENT CONTRACT
iJC `f -li
THIS CONTRACT is made and entered into on the date
specified in paragraph 15(d) hereinafter, by and between the
City of New Hope, a municipal corporation of the State of
Minnesota (hereinafter called the City) , the Church identified
in paragraph 15(a) herein (the Developer of the Church Property
identified in paragraph 15(c) (i) ) , and Winnetka identified in
paragraph 15(a) herein (the Developer of the Winnetka Property
identified in paragraph 15(c) (ii) ) .
WITNESSET H:
WHEREAS, Winnetka with the support of the Church has
applied to the City for approval of a plat or subdivision of
certain land within the City as identified in paragraph 15(c)
herein, and
WHEREAS, pursuant to M. S. Section 462 .358, prior to
granting said approval, the City may require the installation
of streets, water, sewer, and other utility mains , piping and
other facilities, and
WHEREAS, it is not presently feasible to complete such
improvements , and Winnetka and the Church are desirous of
proceeding at once, and the City Council has approved or agreed
to approve said plat on the conditions (1) that Winnetka and
the Church enter into this Development Contract, which Contract
defines the work which Winnetka and the Church each undertakes
to complete within the boundaries of their respective
properties as described hereinafter and (2) that Winnetka and
the Church shall each provide a bond or other collateral in an
amount and with surety and conditions satisfactory to the City,
providing for the securing to the City the actual construction
and installation of such improvements on their respective
properties within the period specified by the City.
NOW, THEREFORE, the City, the Church and Winnetka
agree as follows:
1 . That the recitals above and the provisions of the
Platting Chapter of the New Hope City Code, as amended to date
hereof, are incorporated herein by reference.
2 . Each of the Church with respect to the Church
Property and Winnetka with respect to the Winnetka Property
agrees to complete the work with respect to their respective
properties provided for in this paragraph and in
paragraph 15(e) in accordance with City specifications in all
respects within one year from the date of this instrument,
except as this period of time is extended by resolution of the
Council, or by the City taking no action to require completion
hereunder on a timely basis . It is understood and agreed that
failure of the City promptly to take action to enforce this
agreement of the Church' s Bond or Winnetka ' s Bond, as the case
may be, both as defined in paragraph 15(f) , after the
expiration of the time in which their respective work is
proposed to be completed hereunder will not waive, estop or
release any rights of the City and the City can take action at
any time thereafter to require completion of the specified
work, and payment for same, and the term of the contract shall
be deemed to be automatically extended until such time as the
City elects by appropriate resolution of its Council to declare
the Church or Winnetka, as the case may be, in default
hereunder pursuant to the provisions of paragraph 6, and that
the statute of limitations shall not be deemed to commence
running until the City Council has been notified in writing by
the Church or Winnetka, as the case may be, that the Church or
Winnetka, as the case may be, has either complied with the
contract, or that it refuses to for any reason. These
provisions shall be applicable to any person who shall give
security as required by paragraph 8 .
a . (i) The Church with respect to the Church
Property shall provide, pursuant to approved
City specifications, the following:
Eight (8) boulevard trees
One (1) driveway approaches
One Thousand (1, 000) square yards of
boulevard sod
Seven Hundred (700) lineal feet of sidewalk
(ii) The Church with respect to the Church
Property shall grade the Church Property to
drain adequately its storm water into storm
sewers to be installed by the City in
connection with the publically assessed
construction of Quebec Avenue, as directed
by the City Engineer, to conform with the
overall City storm sewer plan. Such grading
shall be subject to inspection and approval
of the City, and may include drainage
swales, which shall be sodded in the same
manner as boulevards . The parties
understand and agree that sufficient data is
not now available to prescribe the standards
for said grading and swales and that the
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City may require such facilities at a later
date which it may deem necessary.
b. (i) Winnetka with respect to the Winnetka
Property shall provide, pursuant to approved
City specifications, the following :
Four (4) boulevard trees
One (1) driveway approaches
Five Hundred (500) square yards of boulevard
sod
Zero (0) lineal feet of sidewalk
(ii) Winnetka with respect to the Winnetka
Property shall dedicate by easement holding
ponds on the Winnetka Property in the
locations presently agreed upon by Winnetka
and the City, as directed by the City
Engineer, to conform with the overall City
storm sewer plan. Such holding ponds shall
be subject to inspection and approval of the
City, and may include drainage swales, which
shall be sodded in the same manner as
boulevards . The parties understand and
agree that sufficient data is not now
available to prescribe the standards for
said holding pond and swales and that the
City may require such facilities at a later
date which it may deem necessary. The City
in connection with its construction of
Quebec Avenue shall construct the ponding
facility and Winnetka ' s obligation with
respect thereto shall be to dedicate by
easement such ponding area.
3 . Upon the completion of the work and construction
required to be done hereunder, the said improvements shall
become the property of the City, without further notice or
action on the part of either party hereto, other than
acceptance at usage.
4 . Each of the Church with respect to the Church' s
work on the Church Property and Winnetka with respect to
Winnetka 's work on the Winnetka Property shall pay for all
costs of persons doing work or furnishing skill, 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 either the Church or Winnetka or
any subcontractor any sum whatsoever on account thereof,
whether or not the City shall hold the City harmless against
any such claims , and provide the City with all necessary lien
waivers .
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5 . In the event of default by the Church with
respect to the Church Property or Winnetka with respect to the
Winnetka Property as to any of the work to be performed
hereunder to their respective properties, the City may, at its
option, with respect only to the property in default perform
the said work and the defaulting party only shall promptly
reimburse the City for any expense incurred therein by the
City, provided such defaulting party is first given written
notice by United States Mail of the work in default and
required to be done by such defaulting party, not less than 48
hours being given thereby to such defaulting party to remove
the default status , said notice being addressed to such
defaulting party at the address shown in paragraph 15(b)
herein, notice given in this manner being sufficient as
described, by agreement of the parties hereto. Notice to such
defaulting party shall also constitute without further action,
notice to any contractor or subcontractor, whether they are
approved and accepted by the City or not . In the event of
emergency, as determined by the City Engineer, the 48 hours
notice requirement to the Church or Winnetka, as the case may
be, shall be and hereby is waived in its entirety by the Church
or Winnetka, as the case may be, and the Church or Winnetka, as
the case may be, shall reimburse the City for any expense so
incurred by the City in the same manner as if mailed notice as
described hereinbefore had been given. It is understood by the
parties, however, that the responsibility of the Church or
Winnetka, as the case may be, is limited by strikes and force
majeure. Default by Winnetka of its obligations hereunder with
respect to its work on the Winnetka Property shall not
constitute a default by the Church under this Development
Contract, and vice versa. It is also understood by the parties
hereto that performance of the Church ' s work and Winnetka ' s
work required under paragraphs 2(a) (i) and 2(b) (i) ,
respectively, and the Church' s construction of its new church
according to the City approved Site Plan presently on file,
depends on the completion by the City of portions of Quebec
Avenue according to the schedule at the City Engineer ' s office
on the date hereof . The parties understand that such schedule
is subject to a one month delay and to strikes and force
maj eure.
6 . Each of the Church with respect to the Church
Property or Winnetka with respect to the Winnetka Property
agrees to hold the City harmless from any and all claims which
may arise from third parties , including contractors and
subcontractors for damages sustained resulting from the
performance or failure of performance of the above-described
work or the work required in paragraph 15 (e) .
7 . The Church with respect to the Church Property
and Winnetka with respect to the Winnetka Property agrees to
reimburse the City for all costs incurred by the City in the
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enforcement of this Contract , or any portion thereof, including
court costs and reasonable engineering and attorneys ' fees .
8 . The Church with respect to the Church Property or
Winnetka with respect to the Winnetka Property shall each
deposit with the City a satisfactory subdivision bond for their
respective work specified hereinbefore, which shall be in the
amount described in paragraph 15(f) , securing the full
performance of the respective obligations of each party as
specified in this Development Contract . The term Church' s Bond
or Winnetka Bond, as the case may be, as used herein shall also
include any type of collateral agreement or security accepted
by the City.
9 . Each of the Church with respect to the Church
Property or Winnetka with respect to the Winnetka Property
unconditionally guarantees to the City all work required to be
performed hereunder for a period of one year subsequent to
acceptance of same by the City against poor material, faulty
workmanship, or any other failure of the work, whether or not
all or any portion of the Church' s Bond or Winnetka Bond, as
the case may be, shall have been released by the City.
10 . The Church with respect to the Church Property or
Winnetka with respect to the Winnetka Property shall clear any
soil, earth or debris from the streets within their respective
properties resulting from building on the land within their
respective properties by the Church or Winnetka, as the case
may be, or its agents, successor or assigns, and shall restore
any gravel base deteriorated by mixing construction or
excavation debris or earth, and repair any damage to bituminous
surfacing resulting from the same causes .
11. The Church with respect to the Church Property or
Winnetka with respect to the Winnetka Property agrees that the
City at its option can install and construct any work or
improvements required herein to be made by the Church or
Winnetka, as the case may be, and the Church or Winnetka, as
the case may be, agrees to pay all costs so incurred by the
City.
12 . The parties agree the breach of any terms of this
Agreement by the Church or Winnetka, as the case may be, shall
be grounds for denial of building permits for building within
only the Church ' s Property if the Church is in breach, or only
the Winnetka Property if Winnetka is in breach, until such
breach is corrected, either by the City or the Church or
Winnetka, as the case may be. Provided that the Church is not
in default of its obligations with respect to its work on the
Church Property under this Contract and otherwise complies with
the City' s ordinances, the City agrees that it shall not
withhold building permits, certificates of occupancy or the
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like for the Church' s new building by reason of any or all of
the following :
a. Winnetka ' s failure to perform its
obligations hereunder;
b. The Church' s failure to perform its
obligations hereunder by reasons related to
the delay by the City to construct Quebec
Avenue and the storm drainage system
pursuant to the schedule located on the date
hereof at the City Engineer ' s office as
extended by one month.
13 . If any portion, section, subsection, sentence,
clause, paragraph or phrase of this Development Contract is for
any reason held to be invalid, such decisions shall not affect
the validity of the remaining portion of this Agreement .
14 . This Contract shall be binding upon each of the
parties, their respective heirs, successors or assigns as the
case may be. The parties understand and agree that the Church
with respect to the Church Property or Winnetka with respect to
the Winnetka Property is responsible under the terms of this
Contract for the acts or omissions of any of their agents and
successors in title other than the purchaser and occupant of a
home built upon any of the lots included in only their
respective properties .
15 . a. The terms "Winnetka" and "Church" as used
herein refer respectively to :
Winnetka Commons Limited Partnership, a
Minnesota Limited Partnership
Holy Nativity Evangelical Lutheran Church, a
Minnesota Non-Profit Corporation
b. The respective addresses of the Church and
Winnetka, for purposes of this Development
Contract are as follows, and any notice
mailed by the City to these addresses shall
be deemed sufficient notice under this
Contract, until notice of a change of
address is given to the City in writing :
Winnetka Commons Limited Partnership
9000 Old Cedar Avenue
Bloomington, Minnesota 55420
Phone: 851-9161
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Holy Nativity Evangelical Lutheran Church
3540 Winnetka Avenue North
New Hope, Minnesota 55427
Phone: 545-1647
c . The legal description of the respective
premises to which this Development Contract
applies consists of premises in the State of
Minnesota, County of Hennepin, to-wit :
The South 440. 00 feet of that part of the
North 48 rods of the Southwest Quarter of
Section 17, Township 118, Range 21, lying
between the right-of-way of Minneapolis,
Northfield and Southern Railway Company and
the centerline of Winnetka Avenue, in the
Village of New Hope, County of Hennepin,
State of Minnesota, except for that part of
the above described premises lying
northeasterly of the line commencing at a
point on the north line of the above
described property 360 feet west of the
northeast corner thereof, and thence running
433 . 31 feet, more or less southeasterly on
an arc with a radius of 420 feet to a point
on the east line of the above described
property 204 . 39 feet south of the northeast
corner thereof
and is proposed to be known as Lot 1,
Block 1, and Outlot A, Village Industrial
Park.
(i) the church' s property ("Church
Property") is said Lot 1, Block 1
and the portions of Winnetka
Avenue North and Quebec Avenue
shown on the plat to be adjacent
to Lot 1, Block 1; and
(ii) Winnetka ' s property ( "Winnetka
Property" ) is said Outlot A and
the portions of Quebec Avenue
shown on the plat to be adjacent
to Outlot A.
d. The date of this Development Contract is :
January 31, 1990 .
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e. Requirements additional to those listed in
paragraph 2 are as follows :
None.
f. The total amount of the Church' s subdivision
bond ("Church Bond") required to secure the
performance of this contract for the work in
paragraphs 2(a) (i) and (ii) with respect to
the Church Property is initially set at
Sixteen Thousand Six Hundred Fifty Dollars
) ($16, 650 . 00) , and is agreed to by the
Church, and shall be in the form of :
/ / Cash deposited with City at
no interest, or, at the
election of the Church.
/ X / Irrevocable Letter of Credit
for one year, cancellable on
30 days ' written notice to
City thereafter.
/ / Corporate Surety Bond.
/ / Assigned Savings Certificate,
Interest to Developer .
The total amount of Winnetka ' s subdivision
bond ("Winnetka Bond" ) required to secure
performance of this contract for the work in
paragraphs 2(b) (i) and (ii) with respect to
the Winnetka Property is initially set at
Three Thousand Four Hundred and 50/100ths
Dollars ($3,400 . 50) , and is agreed to by
Winnetka, and shall be in the form of an
irrevocable letter as required above.
Sig The parties agree that from time to time,
but not more frequently than annually, each
of the Church or Winnetka with respect to
�� their respective properties may request that
k O the City Engineer evaluate the work
b remaining to be done hereunder by each of
)
1 the Church or Winnetka with respect to their
respective properties, and the amount of
'applicable bond shall be reduced to such
dollar amount as deemed necessary by the
City Engineer. The parties agree that
formal action taken by the City Council in
reducing the amount of the bond as initially
set herein shall constitute sufficient
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evidence, as public record, of the change in
bond amount and the parties waive written
modification of this Development Contract as
to such reduced bond requirement. It is the
City' s intention not to draw on the Church
Bond for Winnetka' s work and not to draw on
Winnetka Bond for the Church' s work.
However, the City shall not be called upon
to resolve issues of fact or law between the
Church and Winnetka . The Church and
Winnetka hereby agree to release the City of
all claims and liablity in the event that
the City draws on either financial guaranty
for the other party' s work. The Church and
Winnetka agree that the City shall not be
made a party to any dispute, arbitration or
litigation between the Church and Winnetka
regarding the work to be performed pursuant
to this Contract .
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IN WITNESS WHEREOF, we have hereunto set our hands and
seals .
CITY OF NEW HOPE
By /-, , i ._e_.,-c. s
`Its Ma or
''
/4( /7
By /d7
e
Its Manager
STATE OF MINNESOTA )
) ss .
COUNTY OF HENNEPIN ) ,
The foreg ;' g instrument was acknowledged before me
this 7 ' day of " % , 1990, by EDW. J. ERICKSON and
DANIEL J. DONAHUE, the Mayo ` and Manager, respectively, of the
City of New Hope, a municipal corporation of the State of
Minnesota, on behalf of said mull' ipal corporation.
JAYNE C.FERRY `//
�� NOTARY PUeUC o MINNESOTA ' a) C'
i:. .1) HENNEPIN COUNTY Notary Publicc / P
•,.. My Commission Expires Aug.30,1:;:`,...,
Signature Page to Development Contract dated January 31,
1990 . ]
1842z
WINNETKA COMMONS LIMITED
PARTNERSHIP, A MINNESOTA LIMITED
PARTNERSHIP
It 01,4 Q
STATE OF MINNESOTA )
) ss .
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me
this 2nd day of February, 1990, by Richard R. Curry, the
Vice President of Winnetka Commons Limited Partnership, a
Minnesota Limited Partnership, on behalf of the partnership.
ONY N. LFL"
GARY PUBLIC — i1;;;1:.=C07,
ENNEPIN COUNT\ y
r /j
?• Nota tic QJ
i.'y Commission Expires May 27, 1982
[Second Signature Page to Development Contract dated
January 31, 1990 . ]
1842z TONY N. LEUNG
NOTARY PUBLIC— MINNESOTA
( F HENNEPIN COUNTY
+••t...- My Commission Expires May 27, 1992
HOLY NATIVITY EVANGELICAL LUTHERAN
CHURCH, A MINNESOTA NON-PROFIT
CORPORATION
Its pre4-..yieti
And by �� c--
I t s -� ,r
STATE OF MINNESOTA )
) ss .
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledge before me
this 2nd day of February, 1990, by iV6cim2,_T l at+S and
Susan Koeneman, the President and Secretary, respectively of
Holy Nativity Evangelical Lutheran Church, a Minnesota
non-profit corporation, on behalf of the corporation.
/
TONY N. LEUNG
7
4 NOTARY PUBLIC— MINNESOTA
ji\I HENNEPIN COUNTY Notary blic
''ewr.." My Commission Expires May 27. 1992
[Third Signature Page to Development Contract dated
January 31, 1990]
1842z TONY N. LEL
KOTARY PUBLIC— MlKN.:;G
%5)".‘,,,,3 .,••� HENNEPIN COUNT\
.%'' My Commission Expires May 27, 1992