Loading...
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 - 2 - 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 . - 3 - 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 - 4 - 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 - 5 - 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 - 6 - 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 . - 7 - 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 - 8 - 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 . - 9 - 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