HomeMy WebLinkAboutVIII-05 Authorize Signature - Development Agreement - County Crossroads Center 4th Addition
City Council Memorandum
To: Mayor Fasbender and City Council
From: John Hinzman, Community Development Director
Date: August 15, 2022
Item: Authorize Signature: Development Agreement - County Crossroads Center 4th
Addition
Council Action Requested:
Authorize Signature of the attached Development Agreement between the City of
Hastings and Current33 Apartments LLC memorializing conditions of approval for
County Crossroads Center 4th Addition. Approval would be subject to minor changes
prior to final signature A simple majority is necessary for action
Background Information:
On March 7, 2022, the City Council approved the plat of County Crossroads Center 4th
addition (along with rezoning and site plan approval) allowing Enclave Development to
construct 211 apartment units south and east of 33rd and Vermillion Streets
Financial Impact:
The increase of 211 apartment units increases the land value and provides needed
housing.
Advisory Commission Discussion:
N\A
Council Committee Discussion:
N\A
Attachments:
• Development Agreement
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DEVELOPMENT AGREEMENT
FOR THE PLAT OF
COUNTY CROSSROADS CENTER 4TH ADDITION
BY AND BETWEEN
THE CITY OF HASTINGS
AND
CURRENT33 APARTMENTS, LLC
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THIS DEVELOPMENT AGREEMENT is made and entered into this day of , 2022 (“Effective Date”), by and between the City of Hastings, a Minnesota municipal
corporation (“CITY”), and Current33 Apartments, LLC, a Minnesota limited liability company
(“DEVELOPER”). RECITALS
WHEREAS, in pursuit of the DEVELOPMENT PROJECT, the DEVELOPER has applied
to the CITY for approval of the DEVELOPMENT PLANS and FINAL PLAT for County Crossroads Center 4th Addition; and WHEREAS, in conjunction with the granting of these approvals, the CITY requires the
installation and/or availability of certain public and private utilities such as sewer and water, storm
sewer, stormwater ponds, and public and private right of way improvements, as more particularly set forth herein; and WHEREAS, under authority granted to it, including Minnesota Statutes Chapters 412, 429,
and 462, the COUNCIL approved the FINAL PLAT and DEVELOPMENT PLANS on the following
conditions: 1. That the DEVELOPER enters into this DEVELOPMENT AGREEMENT, which defines the work which the DEVELOPER undertakes to complete if the DEVELOPER proceeds with
the DEVELOPMENT PROJECT; and
2. The DEVELOPER shall provide an irrevocable letter of credit and cash deposits in the amounts and with conditions satisfactory to the CITY, providing for assurance of payment for the actual construction and installation of the improvements, as required by Exhibits C, E and
F.
WHEREAS, the DEVELOPMENT PLANS were prepared by a registered professional engineer and have been submitted to and approved by the CITY ENGINEER.
NOW, THEREFORE, subject to the terms and conditions of this DEVELOPMENT
AGREEMENT and in reliance upon the representations, warranties and covenants of the parties herein contained, the CITY and DEVELOPER agree as follows:
ARTICLE 1 DEFINITIONS 1.1. TERMS. The following terms, unless elsewhere defined specifically in the DEVELOPMENT AGREEMENT, shall have the following meanings as set forth below.
1.2. CITY. “CITY” means the City of Hastings, a Minnesota municipal corporation.
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1.3. CITY ENGINEER. “CITY ENGINEER” means the City Engineer of the City of Hastings and his delegatees.
1.4. CITY WARRANTIES. “CITY WARRANTIES” means all CITY WARRANTIES identified in Article 12 of this DEVELOPMENT AGREEMENT. 1.5. COUNCIL. “COUNCIL” means the Council of the City of Hastings.
1.6. COUNTY. “COUNTY” means Dakota County, Minnesota. 1.7. DEVELOPER. “DEVELOPER” means Current33 Apartments, LLC, a Minnesota limited liability company.
1.8. DEVELOPER DEFAULT. “DEVELOPER DEFAULT” means and includes, jointly and severally, any of the following or any combination thereof: a) failure by the DEVELOPER to pay the CITY any money required to be paid
under the DEVELOPMENT AGREEMENT;
b) failure by the DEVELOPER to construct the DEVELOPER 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 AGREEMENT within thirty (30) days following DEVELOPER’S receipt of FORMAL NOTICE of such failure from the
CITY; and
d) breach of the DEVELOPER WARRANTIES 1.9. DEVELOPER IMPROVEMENTS. “DEVELOPER IMPROVEMENTS” means
and includes, individually and collectively, all the improvements identified in Article 4.
1.10. DEVELOPER WARRANTIES. “DEVELOPER WARRANTIES” means all DEVELOPER WARRANTIES identified in Article 10 of this DEVELOPMENT AGREEMENT.
1.11. DEVELOPMENT AGREEMENT. “DEVELOPMENT AGREEMENT” means
this instant agreement by and between the CITY and DEVELOPER. 1.12. DEVELOPMENT PLANS. “DEVELOPMENT PLANS” means all the plans, drawings, specifications, and surveys approved and on file with the City, or as may be revised,
updated and approved by the CITY ENGINEER, which are hereby incorporated by reference and
made a part of this DEVELOPMENT AGREEMENT.
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1.13. DEVELOPMENT PROJECT. “DEVELOPMENT PROJECT” means a high-density multi-family building and other related improvements that will be constructed on the
DEVELOPMENT PROPERTY that is substantially in conformance with the DEVELOPMENT
PLANS and all planning approvals. 1.14. DEVELOPMENT PROPERTY. “DEVELOPMENT PROPERTY” means that real property legally described on Exhibit A, attached hereto, upon which the DEVELOPMENT
PROJECT will be constructed.
1.15. FINAL PLAT. “FINAL PLAT” means the FINAL PLAT, approved by the COUNCIL on July 18, 2022, and attached hereto as Exhibit B.
1.16. FORMAL NOTICE. “FORMAL NOTICE” means notices given by one party to
the other if in writing and if and when delivered or tendered in person, by depositing it in the United States mail in a sealed envelope, by certified mail, return receipt requested, with postage and postal charges prepaid, or by depositing it with an independent overnight courier service, addressed as follows:
If to CITY: City of Hastings Attention: City Administrator 101 4th Street East Hastings, MN 55033
If to DEVELOPER: Current33 Apartments, LLC Attn : Austin J. Morris 300 23rd Ave E, Suite 300 West Fargo, ND 58078
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, or on the next business day if deposited with the courier for overnight (next
day) delivery, 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. Attorneys for each party shall be authorized to give and receive notices for each such party.
1.17. INDIRECT COSTS. “INDIRECT COSTS” means the costs related to the
following: a) Finance, administration and legal costs; and
b) Engineering services performed by CITY staff; and
c) Testing and Right of Way services; and
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d) Consulting engineering services.
1.18. OTHER REGULATORY AGENCIES. “OTHER REGULATORY AGENCIES”
means and includes any regulatory or governmental agency or entity affected by, or having jurisdiction over the DEVELOPER IMPROVEMENTS. 1.19. UNAVOIDABLE DELAYS. “UNAVOIDABLE DELAYS” means: (a) an act,
omission, or neglect of the CITY; (b) change orders and change requests that alter the scope of the
DEVELOPER IMPROVEMENTS or the PUBLIC IMPROVEMENTS; (c) changes in law; (d) fire, explosion, catastrophe, accident, or other casualty; (e) strikes, lock-outs, or boycotts; (f) embargoes or shortages of material, energy, fuel, labor or other required products or items; (g) unusual delays in transportation; (h) severe or abnormal (in intensity or duration) weather
conditions or other acts of nature, including but not limited to, earthquake, hurricane, tornado,
drought, landslide, tsunami, lightning, or flood; (i) riots, insurrection, terrorism, war (declared or undeclared), or other armed conflict; (j) plague, epidemics, or quarantine; (k) unforeseen conditions; (l) action or inaction of governmental or quasi-governmental authorities, including delays in the issuance of any building permits or other approvals required for the DEVELOPER
IMPROVEMENTS or the PUBLIC IMPROVEMENTS; or (m) events or causes beyond the
DEVELOPER’S reasonable control. 1.20. UTILITY COMPANIES. “UTILITY COMPANIES” means and includes, jointly and severally, the following:
a) Utility companies, including electric, gas and cable; b) Pipeline companies.
ARTICLE 2 FINAL PLAT APPROVAL 2.1. FINAL PLAT APPROVAL. The COUNCIL approved the FINAL PLAT. All
conditions contained in the CITY Council Resolution for the FINAL PLAT shall be considered a
condition of this DEVELOPMENT AGREEMENT. 2.2. RECORDING OF FINAL PLAT. The DEVELOPER shall record the FINAL PLAT and this DEVELOPMENT AGREEMENT with the COUNTY Recorder. No building permits
shall be issued unless the DEVELOPER shows evidence to the CITY that the FINAL PLAT and this
DEVELOPMENT AGREEMENT have been recorded with the COUNTY Recorder and the CITY has received the financial obligations required in Article 15.
ARTICLE 3
[INTENTIONALLY LEFT BLANK]
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ARTICLE 4 DEVELOPER IMPROVEMENTS
4.1. DEVELOPER IMPROVEMENTS. The DEVELOPER shall install, at its own cost, the DEVELOPER IMPROVEMENTS in accordance with the DEVELOPMENT PLANS and in accordance with the approvals of the CITY Council, and all ordinances of the CITY or any amendments thereto and any miscellaneous requirements on Exhibit C, attached hereto, subject to
Section 6.2.
4.2. GROUND MATERIAL. The DEVELOPER shall ensure that adequate and suitable ground material shall exist in the areas of public street and utility improvements and shall guarantee the removal, replacement or repair of substandard or unstable material through the warranty period.
The cost of said removal, replacement or repair is the responsibility of the DEVELOPER.
4.3. GRADING/DRAINAGE PLAN, EASEMENTS AND HOURS OF CONSTRUCTION ACTIVITIES.
a. The DEVELOPER shall construct drainage facilities adequate to serve the
DEVELOPMENT PROJECT in accordance with the DEVELOPMENT PLANS. The DEVELOPER agrees to grant to the CITY all necessary easements for the preservation and maintenance of the drainage system, for drainage basins and for utility service and for utility looping. The DEVELOPER shall enter into any easement agreements and
stormwater management agreements with the CITY that are deemed necessary to fulfill
the obligations of this Section. The grading and drainage plan shall include lot and building elevations, drainage swales, storm sewer, catch basins, erosion control structures and ponding areas necessary to conform to the overall CITY surface water management plan. The grading of the site shall be completed in conformance with the
DEVELOPMENT PLANS, subject only to such design criteria and engineering design
and construction specifications as are used in the DEVELOPMENT PLANS notwithstanding any amendment or change to CITY standards for development subsequent to approval of the FINAL PLAT.
b. DEVELOPER shall dedicate drainage and utility easements as shown on the FINAL
PLAT. Additional utility and drainage easements that may be required by the CITY may be granted by an acceptable document as approved by the CITY. Prior to issuance of the Certificate of Occupancy to a BUILDER, a Certificate of Compliance by a land surveyor must be submitted to the CITY by the BUILDER reflecting conformance with
the approved grading plan and confirming that the lot corner monuments are installed.
DEVELOPER shall provide the CITY an as-built survey of the DEVELOPMENT PROPERTY in AUTOCAD format after the final rough grading is complete. c. Building construction and general construction activities are limited to Monday
through Friday between the hours 7:00 AM to 10:00 PM and on Saturdays and holidays
between the hours of 9:00 AM to 9:00 PM.
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4.4. SEWER AND WATERMAINS. DEVELOPER shall connect to CITY sewer and water through the available connections and construct a private watermain throughout the
DEVELOPMENT PROPERTY. DEVELOPER shall grant the City a drainage and utility easement
over the watermain with the DEVELOPMENT PROPERTY. Sanitary sewer and water mains will have multiple connections and looping to the CITY infrastructure. The sanitary sewer and water main internal to the site, up to the point of connection shall be owned by the DEVELOPER and shall be private improvements.
4.5. STREET SWEEPING. During the initial construction of the DEVELOPMENT PROJECT, the DEVELOPER is responsible for the removal of all construction debris and earth materials within the public right-of-way adjacent to the DEVELOPMENT PROPERTY. The CITY will inspect the roadways to ensure the DEVELOPER is keeping all public roadway surfaces adjacent
to the DEVELOPMENT PROPERTY clean. If any portion of such public roadway surface is found
in an unacceptable condition, the CITY shall provide FORMAL NOTICE thereof to the DEVELOPER and if the DEVELOPER fails to remove the construction debris and earth materials within the public right-of-way adjacent to the DEVELOPMENT PROPERTY within twenty-four (24) hours following DEVELOPER’S receipt of FORMAL NOTICE from the CITY, then the CITY
will have appropriate equipment dispatched to the site and all reasonable costs incurred by the CITY
in connection with the clean-up effort will be billed to the DEVELOPER. 4.6. VEGETATION. In connection with the initial construction of the DEVELOPMENT PROJECT, the DEVELOPER shall (a) comply with CITY ordinances and policies related to
preservation of vegetation and trees and specifically shall exercise reasonable efforts in residential
areas to save mature, non-diseased trees and vegetation on the DEVELOPMENT PROPERTY which do not have to be removed for reasonable installation of buildings, streets, utilities or drainage improvements, construction activities related thereto, or site grading, (b) prior to any excavation, install tree protection on all trees that are to be saved and to mark trees such trees with a red band
prior to any excavation, and (c) remove all diseased trees according to CITY ordinance requirements.
The DEVELOPER'S landscape plan forming a part of the DEVELOPMENT PLANS shows the preservation of vegetation and trees, as required hereunder. 4.7. LANDSCAPING. The DEVELOPER is responsible for installing all landscaping
improvements shown on the DEVELOPER’S approved landscape plan.
4.8. EROSION CONTROL. The DEVELOPER shall provide and follow a plan for erosion control and pond maintenance in accord with the Best Management Practices (BMP) as delineated in the Minnesota Pollution Control Agency handbook titled Water Quality in Urban Areas
and a grading permit from the CITY. Such plan is detailed on the DEVELOPMENT PLANS and has
been approved by the CITY ENGINEER. The DEVELOPER shall install and maintain such erosion control structures as required by the DEVELOPMENT PLANS, or as it becomes necessary subsequent thereto and prior to substantial completion of the DEVELOPMENT PROJECT. The DEVELOPER shall be responsible for all damage caused as a result of grading and excavation
including, but not limited to, restoration of existing control structures and clean-up of adjacent public
right-of-way. The DEVELOPER shall seed or sod any disturbed areas in accordance with the DEVELOPMENT PLANS. After the site is rough graded, the DEVELOPER must provide erosion control devices that are required by the DEVELOPMENT PLANS. The parties recognize that time is
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of the essence in controlling erosion. If the DEVELOPER does not provide erosion control, the CITY may, after a twenty-four (24) hour FORMAL NOTICE, take appropriate action to control erosion.
The City shall provide FORMAL NOTICE to the DEVELOPER of the costs incurred by the CITY
to control erosion, and if the DEVELOPER fails to reimburse the CITY for such costs within thirty (30) days following the DEVELOPER’S receipt of FORMAL NOTICE from the City, then the CITY may, as its sole and exclusive remedy, draw upon any posted financial guarantee in accordance with the procedure set forth in Section 15.1 to pay costs incurred by the CITY in controlling erosion within
the DEVELOPMENT PROPERTY.
4.9. WEED/GRASS MAINTENANCE. DEVELOPER must not allow or permit within the FINAL PLAT, excluding land deeded to the CITY for public purposes, any weeds, grass, brush, or other rank vegetation to a height greater than twelve (12) inches, or permit any accumulation of
dead weeds, grass or brush, unless such vegetation has been approved pursuant to a landscape plan
that involves native grasses or plantings. In the event the DEVELOPER fails to comply with this provision, the CITY may give the DEVELOPER notice to cut or remove material in violation of this paragraph. All costs of cutting or removing incurred by the CITY must be paid by the DEVELOPER or assessed against the property that is in violation.
4.10. SPECIFICATIONS - INSPECTIONS. Unless otherwise stated, all of the required improvements for the DEVELOPMENT PROJECT shall conform to engineering standards and specifications as required by the CITY. Such DEVELOPER IMPROVEMENTS shall be subject to inspection and approval and shall be made in sequence as determined by the
Public Works Department. Plans and specifications for the required improvements shall be
submitted to the Public Works Department in a type and format specified by the Public Works Department for review and approval. The required improvement plan review fee shall be paid at that time. DEVELOPER shall retain a testing consultant, approved by the CITY, to complete necessary third-party testing of all materials, soil compaction and other infrastructure systems as
required by CITY infrastructure specifications, and shall direct that the consultant provide copies
of all test reports to the CITY at the same time as they are provided to the DEVELOPER. The DEVELOPER shall provide proof to the CITY prior to the onset of construction activities that it has a valid contract with said testing consultant. If any utility or other improvements are required as part of the CITY’S approval process, those improvements shall be inspected by a CITY
designated inspector for compliance with CITY standards and the approved DEVELOPMENT
PLANS. The Public Works Director shall determine the estimated cost of inspection services. The CITY will pay all improvement inspection costs incurred from escrowed funds deposited with the CITY by the DEVELOPER in an amount estimated on Exhibit E, but DEVELOPER shall pay the actual amount determined by the CITY ENGINEER. The CITY will also charge an
administration fee to cover the costs of the CITY’S administrative and consultant fees connected
to the inspection services and related construction oversight efforts. Excess funds will be returned to the DEVELOPER upon completion and acceptance of the DEVELOPMENT PROJECT. If escrowed funds deposited with the CITY are insufficient to cover the inspection costs, the DEVELOPER shall deposit additional funds to cover the estimated overage. Upon completion of
the required public improvements the Developer’s engineer of record shall send as-built grading
and utility drawings certifying their compliance to the CITY’S engineering standards and specifications and with those costs paid by DEVELOPER.
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ARTICLE 5 PARK CONTRIBUTION REQUIREMENTS
5.1. PARK DEDICATION. The DEVELOPER shall comply with the park dedication requirements as defined in the CITY Code. Park dedication fees identified in Exhibit F must be paid prior to the release of the FINAL PLAT.
ARTICLE 6 PERMITS, LICENSES AND OTHER APPROVALS 6.1. PERMITS. The DEVELOPER shall apply for, and the CITY shall issue in a timely
manner, the approvals, permits and licenses from the CITY, the OTHER REGULATORY
AGENCIES and the UTILITY COMPANIES, as identified on Exhibit D, attached hereto, and shall meet, in a timely manner, all requirements of all applicable local, state and federal laws and regulations which must be met before the DEVELOPMENT IMPROVEMENTS and PUBLIC IMPROVEMENTS may be lawfully constructed. Major design requirements of any such entities
was determined prior to completion and incorporated into the DEVELOPMENT PLANS. All costs
incurred to obtain said approvals, permits and licenses, and also all fines or penalties levied by any agency due to the failure of the DEVELOPER to obtain or comply with conditions of such approvals, permits and licenses, shall be paid by the DEVELOPER.
ARTICLE 7 OTHER DEVELOPMENT REQUIREMENTS 7.1. MISCELLANEOUS REQUIREMENTS. The DEVELOPER shall comply with
the additional requirements to approval of the DEVELOPMENT PROJECT as specified by the
COUNCIL which are incorporated herein and identified on Exhibit C. 7.2. MNDOT TURN LANE. DEVELOPER shall restripe the MNDOT turn lane pursuant to plans approved by MNDOT.
7.3. UTILITY ABANDONMENT AND PATCHING ON 33RD STREET. DEVELOPER shall abandon utilities and patch 33rd Street, as approved by the CITY ENGINEER and shown on the DEVELOPMENT PLANS.
ARTICLE 8 [INTENTIONALLY BLANK]
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ARTICLE 9 RESPONSIBILITY FOR COSTS
9.1. DEVELOPER IMPROVEMENT COSTS. The DEVELOPER shall pay for the DEVELOPER IMPROVEMENTS and PUBLIC 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. 9.2. ENFORCEMENT COSTS. The DEVELOPER shall pay the CITY for costs incurred in the enforcement of this DEVELOPMENT AGREEMENT, including engineering costs
and reasonable attorneys’ fees, if the CITY is the prevailing party in any such enforcement action.
The CITY shall pay the DEVELOPER for costs incurred in the enforcement of this DEVELOPMENT AGREEMENT, including engineering costs and reasonable attorneys’ fees, if the DEVELOPER is the prevailing party in any such enforcement action.
9.3. TIME OF PAYMENT. DEVELOPER shall pay all bills for all costs due under this
DEVELOPMENT AGREEMENT, including INDIRECT COSTS, received by DEVELOPER from the CITY within thirty (30) days after billing. Bills not paid within thirty (30) days shall bear interest at the rate of eight percent (8%) per year.
ARTICLE 10 DEVELOPER WARRANTIES 10.1. STATEMENT OF DEVELOPER WARRANTIES. The DEVELOPER hereby
warrants and represents the following:
a) AUTHORITY. DEVELOPER is the contract purchaser of the DEVELOPMENT PROPERTY and has the right, power, legal capacity and authority to enter into and perform its obligations under this DEVELOPMENT AGREEMENT, 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 AGREEMENT. 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 beyond applicable notice and
cure periods which would affect performance under this DEVELOPMENT AGREEMENT. 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 AGREEMENT by DEVELOPER or
prohibit any of the transactions provided for in this DEVELOPMENT
AGREEMENT.
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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 FINAL 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 FINAL PLAT and the DEVELOPMENT PLANS and the DEVELOPER IMPROVEMENTS.
e) NO LITIGATION. There is no suit, action, arbitration or legal, administrative or other proceeding or governmental investigation pending, or, to the best of the DEVELOPER’S knowledge, threatened against or affecting DEVELOPER or the DEVELOPMENT PROPERTY or the DEVELOPMENT PLANS or the
DEVELOPER IMPROVEMENTS that would materially affect DEVELOPER'S
performance under this DEVELOPMENT AGREEMENT. To the best of the DEVELOPER’S knowledge, DEVELOPER is not in default with respect to any order, writ, injunction or decree of any federal, state, local or foreign court, department, agency or instrumentality that would materially affect DEVELOPER'S
performance under this DEVELOPMENT AGREEMENT.
f) FULL DISCLOSURE. None of the representations and warranties made by DEVELOPER in this DEVELOPMENT AGREEMENT intentionally contains any untrue statement of material fact or intentionally omits any material fact the omission
of which would be misleading. Any unintentional untrue statements or omissions shall
be corrected or cured within thirty (30) days after the DEVELOPER receives FORMAL NOTICE, unless an extension is granted by the CITY. g) PLAT COMPLIANCE. The FINAL PLAT and the DEVELOPMENT PLANS
comply with all CITY, COUNTY, metropolitan, state and federal laws and
regulations, including but not limited to, subdivision ordinances, zoning ordinances and environmental regulations. h) WARRANTY ON PROPER WORK AND MATERIALS. The DEVELOPER
warrants all work required to be performed by it under this DEVELOPMENT
AGREEMENT with respect to the PUBLIC IMPROVEMENTS only against defective material and faulty workmanship for a period of one (1) year after its completion and acceptance by the CITY. The DEVELOPER shall be solely responsible for all costs of performing repair work to the PUBLIC
IMPROVEMENTS required by the CITY within thirty (30) days following
FORMAL NOTICE from the CITY, provided the CITY gives such FORMAL NOTICE within such 1-year period. All trees, grass, and sod shall be warranted to be alive, of good quality, and disease free for one year after planting. Any replacements
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shall be similarly warranted for one year from the time of planting. The warranty period for street and drainage and erosion control improvements shall be for one (1)
year after completion and acceptance by the CITY; the warranty for the street,
drainage and erosion control improvements shall also include the obligation of the DEVELOPER to repair and correct any damage to or deficiency with respect to such improvements.
i) 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. A list of the CITY permits, licenses, and approvals required is
identified on Exhibit D.
ARTICLE 11
[INTENTIONALLY BLANK]
ARTICLE 12 CITY WARRANTIES
12.1. STATEMENT OF CITY WARRANTIES. The CITY hereby warrants and represents as follows: a) ORGANIZATION. CITY is a municipal corporation duly incorporated and validly
existing in good standing the laws of the State of Minnesota.
b) AUTHORITY. CITY has the right, power, legal capacity and authority to enter into and perform its obligations under this DEVELOPMENT AGREEMENT.
ARTICLE 13 INDEMNIFICATION OF CITY 13.1. INDEMNIFICATION OF CITY. Provided the CITY is not in DEFAULT under
the DEVELOPMENT AGREEMENT with respect to the particular matter causing the claim, loss or
damage, DEVELOPER shall indemnify, defend and hold the CITY, its COUNCIL, agents, employees, attorneys and representatives harmless from and against 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 of suffers, which
arise out of, result from or relate to: a) breach by the DEVELOPER of the DEVELOPER WARRANTIES;
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b) failure of the DEVELOPER to timely construct the DEVELOPER IMPROVEMENTS according to the DEVELOPMENT PLANS and the CITY
ordinances, 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 AGREEMENT;
d) failure by the DEVELOPER to pay contractors, subcontractors, laborers, or materialmen; e) failure by the DEVELOPER to pay for materials;
f) approval by the CITY of the FINAL PLAT; g) approval by the CITY of the DEVELOPMENT PLANS;
h) failure to obtain the necessary permits and authorizations to construct the
DEVELOPER IMPROVEMENTS; i) construction of the DEVELOPER IMPROVEMENTS;
j) delays in construction of the DEVELOPER IMPROVEMENTS;
k) payment by DEVELOPER for any required costs or assessments; l) all costs and liabilities arising because building permits were issued prior to the completion and acceptance of the DEVELOPER IMPROVEMENTS. 13.2. NOTICE. Within a reasonable period of time after the CITY’S receipt of actual notice of any matter giving rise to a right of payment against the CITY pursuant to Section 13.1, the CITY shall give the FORMAL NOTICE in reasonable detail to the DEVELOPER. The DEVELOPER shall not be obligated to make any payment to the CITY for any such claim until the passage of thirty (30) days from the date of its receipt of FORMAL NOTICE from the CITY, during
which time the DEVELOPER shall have the right to cure or remedy the event leading to such claim. 13.3. DEFENSE OF CLAIM. Provided the CITY is not in DEFAULT under the DEVELOPMENT AGREEMENT with respect to the particular matter causing the claim or demand, with respect to claims or demands asserted against the CITY by a third party of the nature covered by
Section 13.1, and provided that the CITY gives FORMAL NOTICE thereof, the DEVELOPER will, at its sole expense, provide for the defense thereof with counsel of its own selection but approved by the CITY; the DEVELOPER will pay all costs and expenses including attorneys’ fees incurred in so defending against such claims, provided that the CITY shall at all times also have the right to fully participate in the defense at the CITY’S expense. If the DEVELOPER fails to defend within ten (10)
days following DEVELOPER’S receipt of FORMAL NOTICE from the CITY of DEVELOPER’S defense obligations hereunder, then the CITY shall have the right, but not the obligation, to undertake
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the defense of, and to compromise or settle the claim or other matter, for the account of and at the risk of the DEVELOPER.
ARTICLE 14 CITY REMEDIES UPON DEVELOPER DEFAULT
14.1. CITY REMEDIES. If a DEVELOPER DEFAULT occurs, that is not caused by
UNAVOIDABLE DELAYS, the CITY shall give the DEVELOPER FORMAL NOTICE of the DEVELOPER DEFAULT and the DEVELOPER shall have thirty (30) days to cure the DEVELOPER DEFAULT. If the DEVELOPER, after FORMAL NOTICE to it by the CITY, does not cure the DEVELOPER DEFAULT, 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 AGREEMENT; 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 (“LOC”), or cash deposit pursuant to Article 15 hereof;
d) the CITY may suspend or deny building and occupancy permits for buildings within
the FINAL 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 hereby waives 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 FINAL PLAT. The DEVELOPER hereby waives any appeal rights otherwise available pursuant to Minn. Stat. § 429.081. 14.2. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event any
agreement contained in this DEVELOPMENT AGREEMENT 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.
14.3. NO REMEDY EXCLUSIVE. Except as otherwise expressly set forth herein, no
remedy herein conferred upon or reserved to the CITY or DEVELOPER 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 AGREEMENT or now or
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hereafter existing at law or in equity or by statute. 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 or DEVELOPER to exercise any remedy reserved to it, it shall not be necessary to give notice, other than the FORMAL NOTICE. 14.4. EMERGENCY. Notwithstanding the requirement contained in Section 14.1 hereof
relating to FORMAL NOTICE to the DEVELOPER in case of a DEVELOPER DEFAULT and
notwithstanding the requirement contained in Section 14.1 hereof relating to giving the DEVELOPER a right to cure the DEVELOPER DEFAULT, in the event of an emergency as reasonably determined by the CITY ENGINEER, 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 (provided, however, the CITY shall give DEVELOPER such notice
as is reasonable under the circumstances) and without giving the DEVELOPER the right 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 hereby waives any and all procedural and substantive objections to the installation
and construction of the work and improvements and the special assessments resulting therefrom, including, but not limited to, notice and hearing requirements and any claim that the special assessments exceed benefit to the DEVELOPMENT PROPERTY. The DEVELOPER hereby waives any appeal rights otherwise available pursuant to Minn. Stat. § 429.081.
ARTICLE 15 FINANCIAL OBLIGATIONS
15.1. DEVELOPER’S LETTER OF CREDIT OR CASH DEPOSIT AMOUNT. Prior
to release of the FINAL PLAT for recording, the DEVELOPER shall deposit with the CITY an irrevocable LOC and Cash Escrow for the amounts required in Exhibit E. In lieu of an irrevocable LOC, DEVELOPER may deposit cash or other security acceptable to CITY.
All cost estimates shall be acceptable to the CITY ENGINEER. The bank and form of the
irrevocable LOC shall be subject to approval by the CITY Finance Director and shall continue to be in full force and effect until released by the CITY. The irrevocable LOC shall be for a term ending one (1) year after acceptance by the CITY. 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, and further provided that the irrevocable LOC 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 LOC shall secure compliance by the DEVELOPER with the terms of this DEVELOPMENT AGREEMENT. The CITY may draw down on the irrevocable LOC or cash deposit, without any further notice than that provided in Section 14.1 relating to a
DEVELOPER DEFAULT, for any of the following reasons:
a) a DEVELOPER DEFAULT; or
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b) upon the CITY receiving notice that the irrevocable LOC will be allowed to lapse prior to two (2) years after acceptance by the CITY unless within ten (10) days after
FORMAL NOTICE to DEVELOPER of the foregoing, the CITY receives (i) notice
regarding issuance of a replacement LOC prior to such lapse and/or (ii) a replacement LOC is posted. The CITY shall use the LOC proceeds to reimburse the CITY for its costs and to cause the
DEVELOPER IMPROVEMENTS to be constructed to the extent practicable; if the CITY
ENGINEER determines that such DEVELOPER IMPROVEMENTS have been constructed and after retaining 10% of the proceeds for later distribution pursuant to Section 15.2, the remaining proceeds shall be distributed to the DEVELOPER.
The irrevocable LOC shall be reduced pursuant to Section 15.2 from time to time as financial
obligations are paid. 15.2. ESCROW RELEASE AND ESCROW INCREASE; DEVELOPER IMPROVEMENTS. The DEVELOPER may request that the LOC or cash deposits required by the
DEVELOPMENT AGREEMENT be reduced at the following intervals:
a) Substantial completion of the mass site grading activities;
b) Final completion of the mass site grading activities;
c) Substantial completion of the sanitary sewer, water main, and storm sewer installation. The LOC or cash deposits may be administratively reduced by the CITY ENGINEER by 50%
after full installation or completion of the aforementioned items, pending verification of as-builts.
Upon verification of as-builts that confirm the location and construction of the aforementioned items, the DEVELOPER may request the LOC or cash deposits be reduced by 75% of the original amounts. The balance shall be retained by the CITY until the expiration of the 1-year warranty period.
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 LOC, or cash deposit equal to 125% of the estimated amount necessary to correct the deficiency or to protect against deficiencies arising therefrom. 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. 15.3. DEVELOPER’S CASH FEE REQUIREMENTS. At the time that the DEVELOPMENT AGREEMENT is approved, DEVELOPER shall deposit cash with the CITY for
those items and in the amounts required in Exhibit F.
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ARTICLE 16 MISCELLANEOUS
16.1. CITY’S DUTIES. The terms of this DEVELOPMENT AGREEMENT shall not be considered an affirmative duty upon the CITY to complete any DEVELOPER IMPROVEMENTS. 16.2. COMMENCEMENT AND COMPLETION OF CONSTRUCTION. A pre-
construction meeting shall be coordinated with the CITY ENGINEER prior to commencement of
construction. All work with respect to the DEVELOPMENT PROJECT to be constructed or provided by DEVELOPER on the DEVELOPMENT PROPERTY shall be in substantial conformity with the DEVELOPMENT PLANS and DEVELOPER will not materially modify the size or exterior appearance of the DEVELOPMENT PROJECT without the consent of the CITY,
which consent shall not be unreasonably withheld. DEVELOPER shall coordinate all PUBLIC
IMPROVEMENT construction activities with the CITY as it relates to other CITY construction projects in the vicinity of the DEVELOPMENT PROJECT and DEVELOPMENT PROPERTY. Subject to UNAVOIDABLE DELAYS, DEVELOPER shall use reasonable efforts after work commences to complete the DEVELOPER IMPROVEMENTS by October 15, 2023.
16.3. NO THIRD-PARTY RECOURSE. Third parties shall have no recourse against the CITY under this DEVELOPMENT AGREEMENT.
16.4. VALIDITY. If any portion, section, subsection, sentence, clause, paragraph or phrase
of this DEVELOPMENT AGREEMENT is for any reason held to be invalid, such decision shall not affect the validity of the remaining portion of this DEVELOPMENT AGREEMENT. 16.5. RECORDING. The DEVELOPMENT AGREEMENT and PLAT shall be recorded
with the COUNTY Recorder and the DEVELOPER shall provide and execute any and all documents
necessary to implement the recording. 16.6. BINDING AGREEMENT. The parties mutually recognize and agree that all terms and conditions of this recordable DEVELOPMENT AGREEMENT shall run with the land on the
DEVELOPMENT PROPERTY and shall be binding upon the successors and assigns of the
DEVELOPER. This DEVELOPMENT AGREEMENT shall also run with and be binding upon any after acquired interest of the DEVELOPER in the DEVELOPMENT PROPERTY. 16.7. CONTRACT ASSIGNMENT. The DEVELOPER may not assign this
DEVELOPMENT AGREEMENT without the prior written consent of the COUNCIL, which
approval will not be unreasonably withheld. In such case, the third-party buyer will be required to accept and assume all contractual and financial responsibilities provided in this DEVELOPMENT AGREEMENT. Upon satisfaction of such requirements by such third-party buyer, the DEVELOPER’s obligations hereunder shall terminate. Absent approval of the Council, the
DEVELOPER’s obligations hereunder shall continue in full force and effect, even if the
DEVELOPER sells one or more lots, the entire PLAT, or any part of it. 16.8. AMENDMENT AND WAIVER. The parties hereto may by mutual written agreement amend this DEVELOPMENT AGREEMENT in any respect. Any party hereto may
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extend the time for the performance of any of the obligations of another, waive any inaccuracies in representations by another contained in this DEVELOPMENT AGREEMENT or in any document
delivered pursuant hereto which inaccuracies would otherwise constitute a breach of this
DEVELOPMENT AGREEMENT, waive compliance by another with any of the covenants contained in this DEVELOPMENT AGREEMENT, waive 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 AGREEMENT. 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 AGREEMENT shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. 16.9. GOVERNING LAW. This DEVELOPMENT AGREEMENT shall be governed by
and construed in accordance with the laws of the State of Minnesota.
16.10. COUNTERPARTS. This DEVELOPMENT AGREEMENT 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.
16.11. HEADINGS. The subject headings of the paragraphs and subparagraphs of this DEVELOPMENT AGREEMENT are included for purposes of convenience only and shall not affect the construction of interpretation of any of its provisions.
16.12. INCONSISTENCY. If the DEVELOPMENT PLANS are inconsistent with the
words of this DEVELOPMENT AGREEMENT or if the obligation 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.
16.13. ACCESS. The DEVELOPER hereby grants to the CITY, its agents, employees,
officers, and contractors a license and right of entry to enter the DEVELOPMENT PROPERTY to perform all work and inspections deemed appropriate by the CITY during the installation of DEVELOPER IMPROVEMENTS and PUBLIC IMPROVEMENTS.
16.14. FURTHER ASSURANCES AND WAIVER. The CITY and DEVELOPER hereto
shall do all things necessary or appropriate to carry out the terms and provisions of this DEVELOPMENT AGREEMENT and to aid in assist each other in carrying out the terms and objectives of this DEVELOPMENT AGREEMENT and the intentions of the CITY AND DEVELOPER as reflected by said terms and provisions, including, without limitation, the giving of
such notices, the holding of such public hearings, the enactment by the CITY of such resolutions and
ordinances and the taking of such other actions as may be necessary to enable the parties’ compliance with the terms and provisions of this DEVELOPMENT AGREEMENT all as may be necessary to give effect to the terms and objectives of this DEVELOPMENT AGREEMENT and the intentions of the parties as reflected by said terms.
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IN WITNESS WHEREOF, the parties have executed this DEVELOPMENT AGREEMENT as of the Effective Date.
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: CURRENT33 APARTMENTS, LLC
By: Austin J. Morris Its Managing Member
STATE OF ) ) ss. COUNTY OF )
On this _____ day of , 2022, before me a Notary Public within and for said County, personally appeared Austin J. Morris to me personally known, who being by me duly sworn, did say that he is the Managing Member of Current33 Apartments, LLC,
a Minnesota Limited Liability Company, the entity named in the foregoing instrument, and that said
instrument was signed on behalf of said limited liability company.
Notary Public
THIS INSTRUMENT DRAFTED BY AND AFTER RECORDING PLEASE RETURN TO: Korine Land, #262432
LeVander, Gillen, & Miller, P.A. 1305 Corporate Center Drive, Suite 300 Eagan, MN 55121
(651) 451-1831
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EXHIBIT A DEVELOPMENT PROPERTY
Real property situated in the City of Hastings, County of Dakota, State of Minnesota, legally described as: Lot 1, Block 1, County Crossroads Center 4th Addition
Outlot A, County Crossroads Center 4th Addition
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EXHIBIT B FINAL PLAT
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EXHIBIT C MISCELLANEOUS REQUIREMENTS AND CONDITIONS IMPOSED BY THE CITY 1) CONDITIONS TO BE SATISFIED BEFORE CITY RELEASES THE FINAL PLAT
TO BE RECORDED.
a) Letter of Credit. DEVELOPER must provide the LOC for the amounts required in this DEVELOPMENT AGREEMENT.
b) All Cash Deposits. DEVELOPER must pay all cash deposits required in this
DEVELOPMENT AGREEMENT. c) Planning Fees. DEVELOPER must fully pay the CITY all planning, engineering review and legal fees that have been incurred up to the date of approval of this
DEVELOPMENT AGREEMENT.
d) Park Fee and Credits Relating Thereto. DEVELOPER must pay park dedication fees as required in Exhibit F.
e) Sewer Interceptor Fees. DEVELOPER must pay sewer interceptor fees as required in
Exhibit F. f) Stormwater Maintenance Agreement. DEVELOPER must execute a Stormwater Maintenance Agreement for portions of the DEVELOPMENT PROPERTY.
g) Access Agreement. DEVELOPER must execute an Access or Easement Agreement with adjacent property owners to access the DEVELOPMENT PROPERTY. 2) BUILDING PERMITS. No building permits may be obtained until:
a) All the conditions in Paragraph 1 of this Exhibit C have been met; b) All storm water ponds and associated drainage features including storm sewer and drainage swales have been installed;
c) The following documents have been recorded:
• Final Plat
• Development Agreement
• Stormwater Maintenance Agreement
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3) CERTIFICATES OF OCCUPANCY. Prior to issuance of any certificate of occupancy, all
the following conditions must be satisfied: a) All the conditions listed in Paragraphs 1 and 2 of this Exhibit C must be satisfied.
b) The utilities have been installed, tested and approved for use by the CITY ENGINEER.
c) As built surveys have been received by the CITY. 4) CLEAN UP OF CONSTRUCTION DEBRIS ON STREETS AND ADJOINING
PROPERTY. The escrow amount stated on Exhibit E shall include an appropriate amount
as determined by the Director of Public Works to ensure that the DEVELOPER removes any construction debris from streets adjoining the FINAL PLAT and from private properties that adjoint the FINAL PLAT. During the construction of the improvements within the FINAL PLAT, the DEVELOPER is responsible for removing any construction debris (including
roofing materials, paper wrappings, construction material and other waste products resulting
from construction) that may be blown from the construction site into adjoining private properties or into CITY streets or that may fall from delivery trucks onto adjoining private properties or CITY streets. Further, during construction, the DEVELOPER must clear the CITY streets of any dirt or other earthen material that may fall onto the CITY streets from the
delivery trucks that are being used in the excavation and grading of the site.
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EXHIBIT D PERMITS, LICENSES AND OTHER APPROVALS 1. Any licenses or permits required by the Minnesota Department of Health.
2. NPDES Construction Stormwater Permit from the MPCA.
3. Any contractor licenses from the CITY or the State of Minnesota.
4. Building Permits from the CITY.
5. Electrical Permits from the CITY.
6. Utility permits that may be required from the CITY, State of Minnesota or any utility company.
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EXHIBIT E DEVELOPER’S CASH AND LETTER OF CREDIT (LOC) ESCROW REQUIREMENTS PUBLIC INFRASTRUCTURE SYSTEMS
*As approved by CITY
CASH ESCROW
Engineering Cash Total
Public Infrastructure Construction Inspections $30,000.00
LOC Total
Total Public Infrastructure Construction Costs* $510,642.53
X 125% $638,303.16
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EXHIBIT F DEVELOPER’S CASH REQUIREMENTS
Cash Fees Unit Cost Qty Total
Park Dedication Fees $1,100/unit 211 units $232,100
Sewer Interceptor Fees $485/unit 211 units $102,335
Total Fees $334,435
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