HomeMy WebLinkAboutIV.G. First Amendment to Development Agreement - 1-5-22
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this “First
Amendment”) is entered into as of , 2022 (the “Effective Date”),
by and between the Hastings Economic Development and Redevelopment Authority, a public body
corporate and politic organized under the laws of Minnesota (“HEDRA”), the City of Hastings, a
Minnesota municipal corporation (“City”), and NJS Development LLC, a South Dakota limited
liability company (“Developer”).
RECITALS
Recital No. 1. HEDRA, City and Developer entered into a Development Agreement
dated November 11, 2021, recorded as Document No. _______________ on ________________
in the Dakota County Recorder’s Office (“Development Agreement”), for the purchase and sale
of real property identified in the Development Agreement.
Recital No. 2. Developer has requested the Development Agreement be amended to
extend the Closing Date to allow additional time to submit the Construction Plans.
Recital No. 3. HEDRA and City do not object to the extension.
NOW, THEREFORE, in consideration of the mutual promises and covenants of each to
the other contained in this First Amendment and other good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto do covenant and agree as follows:
1. Section 1(E) of the Development Agreement shall be removed and replaced in its entirety
as follows:
1(E). “Closing Date” means on or before sixty (60) days following Developer obtaining
all Land Use Entitlements, but no later than June 9, 2022, unless otherwise agreed to by
the parties.
2. Section 1(W) shall be added to the Development Agreement as follows:
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1(W). “Land Use Entitlements” means planning applications, including but not limited
to, plat, site plan, and rezoning approvals, obtained by Developer for the Minimum
Improvements.
3. Section 6.1(A)(6) of the Development Agreement shall be removed and replaced in its
entirety as follows:
6.1(A)(3). On or before the Contingency Date, Developer shall have obtained all
appropriate approvals and permits necessary for the Proposed Use on the Property, which
approvals may include, without limitation, access permits, signage permits, building
permits, required licenses (the “Approvals”). All costs and expenses related to the
preparation of any documentation necessary to create any plans, specifications or the like
shall be the responsibility of the Developer.
4. Section 6.1(A)(16) shall be added to the Development Agreement as follows:
6.1(A)(16). On or before Contingency Date, Developer shall have obtained all Land
Use Entitlements.
5. Section 10.1 of the Development Agreement shall be removed and replaced in its entirety
as follows:
10.1. Construction of Minimum Improvements. No later than thirty (30) days before
the Closing Date, Developer shall submit Construction Plans to the City. The
Construction Plans shall provide for the construction of Minimum Improvements. All
Minimum Improvements constructed on the Property shall be constructed, operated and
maintained in accordance with the terms of the Construction Plans, this Agreement, the
Comprehensive Plan, and all local, Minnesota and federal laws and regulations
(including, but not limited to, Environmental Controls and Land Use Regulations).
Developer will use commercially reasonable efforts to obtain, or cause to be obtained, in
a timely manner, all required permits, licenses and approvals, and will use commercially
reasonable efforts to meet, in a timely manner, the requirements of applicable
Environmental Controls and Land Use Regulations which must be met before
Developer’s Minimum Improvements may be lawfully constructed.
6. Section 10.6 of the Development Agreement shall be removed and replaced in its entirety
as follows:
10.6 Commencement and Completion of Construction. Subject to Unavoidable
Delays, Developer shall commence construction of the Minimum Improvements no later
than June 15, 2022. “Commence Construction” shall mean the start of site grading and
installation of utilities. Subject to Unavoidable Delays, Developer shall have
substantially completed the construction of the Minimum Improvements no later than
December 31, 2023. All work with respect to the Minimum Improvements to be
constructed or provided by Developer on the Property shall be in substantial conformity
with the Construction Plans and Developer will not modify the size or exterior
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appearance of the Minimum Improvements without the consent of HEDRA and the City,
which consent shall not be unreasonably withheld.
7. Except as provided for above, the terms and provisions of the Development Agreement
shall remain in full force and effect.
8. This First Amendment and all disputes or controversies arising out of or relating to this
First Amendment or the transactions contemplated hereby shall be governed by, and
construed in accordance with, the internal laws of the State of Minnesota, without regard
to the laws of any other jurisdiction that might be applied because of the conflicts of laws
principles of the State of Minnesota.
9. Nothing contained herein shall be deemed a waiver by HEDRA of any governmental
immunity defenses, statutory or otherwise. Further, any and all claims brought by
Developer or its successors or assigns, shall be subject to any governmental immunity
defenses of HEDRA and the maximum liability limits provided by Minnesota Statutes,
Chapter 466.
10. This First Amendment may be executed in two or more counterparts, all of which shall be
considered one and the same instrument and shall become effective when one or more
counterparts have been signed by the parties and delivered to the other parties.
11. This First Amendment shall not be amended, modified or supplemented, except by a
written instrument signed by an authorized representative of each party.
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IN AGREEMENT, the parties hereto have hereunto set their hands as of the Effective
Date.
HEDRA:
HASTINGS ECONOMIC
DEVELOPMENT AND
REDEVELOPMENT AUTHORITY
By ________________________________
________________________________
Its President
By ________________________________
Eric Maass
Its Secretary
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this ____ day of ____________,
2022, by ____________________ and Eric Maass, the President and Secretary respectively, of
the Hastings Economic Development and Redevelopment Authority, a public body corporate and
politic organized and existing under the Constitution and laws of Minnesota, on behalf of
HEDRA.
Notary Public
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CITY:
CITY OF HASTINGS
By:
Mary Fasbender
Its Mayor
By:
Kelly Murtaugh
Its City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
On this ___ day of ______________________, 2022, before me a Notary Public within
and for said County, personally appeared Mary Fasbender and Kelly Murtaugh, to me personally
known, who being each by me duly sworn, each did say that they are respectively the Mayor and
City Clerk of the City of Hastings, the municipality named in the foregoing instrument, and that
the seal affixed to said instrument was signed and sealed on behalf of said municipality by
authority of its City Council and said Mayor and City Clerk acknowledged said instrument to be
the free act and deed of said municipality.
Notary Public
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DEVELOPER:
NJS DEVELOPMENT LLC
By
Its:
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
__________________, 2022, by ______________________, the ______________________ of
NJS Development LLC, a South Dakota limited liability company, on behalf of said limited
liability company.
Notary Public
This instrument was drafted by
and after recording return to:
Korine L. Land, #262432
LeVander, Gillen & Miller, P.A.
1305 Corporate Center Drive, Suite 300
Eagan, MN 55121
651-451-1831