Loading...
HomeMy WebLinkAboutDoc # A9681453 ,,i . a, 775 Iva ti d L3Ivc Ull 111 11I II Mill II Doc No A9681453 Certified filed and/or recorded on 8/8/11 12:00 PM Office of the County Recorder Hennepin Count,,-1Vlinnesota Michael H. Cunnif 'County Recorder Jill L. Alverson, Cou y Auditor and Treasurer Deputy 45 1 Pkg ID 728687 Doc Name: Devel pment Agreement Document Reco ing Fee $46.00 Document Total $46.00 This cover sheet is now a permanent part of the recorded document. (reserved for recording information) DEVELOPMENT CONTRACT AND RESIDENTIAL PLANNED UNIT DEVELOPMENT AGREEMENT (Developer Installed Improvements) ORONO SENIOR HOUSING PROJECT NO. 11-3498 PUD NO. 7 AGREEMENT dated June/ 27 , 2011, by and between the CITY OF ORONO, a Minnesota municipal corporation ("City"), and CPE EXCHANGE 33968, LLC, a Minnesota limited liability company (the "Developer"). 1. REQUEST FOR DEVELOPMENT AND RESIDENTIAL PLANNED UNIT DEVELOPMENT APPROVAL. The Developer has asked the City to approve a development and residential planned unit development for ORONO SENIOR HOUSING PROJECT NO. 11-3498 (referred to in this Contract as the "Development/RPUD/PUD #7" The land is situated in the County of Hennepin, State of Minnesota, and is legally described on the attached Exhibit "A". 2. CONDITIONS OF DEVELOPMENT AND RESIDENTIAL PLANNED UNIT DEVELOPMENT APPROVAL. The City hereby approves the Development/RPUD/PUD #7 on condition that the Developer enter into this Contract, furnish the security required by it, and record this Contract with 1 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) the County Recorder or Registrar of Titles within 100 days after the City Council approves the Development/RPUD/PUD #7. 3. RIGHT TO PROCEED. Within the Development/RPUD/PUD #7 , the Developer may not grade or otherwise disturb the earth, remove trees, construct sewer lines, water lines, streets, utilities, public or private improvements, or any buildings until all the following conditions have been satisfied: 1) this agreement has been fully executed by both parties and filed with the City Clerk, 2) the necessary security has been received by the City, and 3) this Contract has been filed with the Hennepin County Recorder/Registrar of Titles Office. 4. CHANGES IN OFFICIAL CONTROLS. For two (2) years from the date of this Contract, no amendments to the City's Comprehensive Plan or official controls shall apply to or affect the use, development density, lot size, lot layout or dedications of the approved Development/RPUD/PUD #7 unless required by state or federal law or agreed to in writing by the City and the Developer. Thereafter, notwithstanding anything in this Contract to the contrary, to the full extent permitted by state law, the City may require compliance with any amendments to the City's Comprehensive Plan, official controls, platting, subdivision or dedication requirements enacted after the date of this Contract. 5. DEVELOPMENT PLANS. The Development/RPUD/PUD #7 shall be developed in accordance with the following plans. The plans shall not be attached to this Contract. The erosion control plan may also be approved by the Minnehaha Creek Watershed District. If the plans vary from the written terms of this Contract, the written terms shall control. The plans are: Plan A - Sheet C1.1 Existing Conditions and Site Plan Plan B - Sheets C2.2 — 3 Site Plan Plan C - Sheets C3.1 — 2 Grading Plan Plan D - Sheets C3.3 — 4 Erosion Control & Grading Details Plan E - Sheet C3.5 Wetland Buffer Maintenance Plan Plan F - Sheet C4.1 Sanitary Sewer & Watermain Plan Plan G - Sheet C4.2 Storm Drain Plan Plan H - Sheets C4.3 — 5 Utility Plan Plan I - Sheet L1.1 Tree Preservation Plan J - Sheets L2.1 & L2.3 — 4 Landscape Plans Plan K - Sheet L2.2 Wetland Buffer& Upland Seeding Plan Plan L - Sheet SWPPP.1 SWPPP Plan Plan M - Sheets A2.1 — 3 Floor Plans 2 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) Plan N - Sheet A3.0 Exterior Elevations Plan 0 - Site Photometric Plan 6. IMPROVEMENTS. The Developer shall install and pay for the following: A. Sanitary Sewer Connections B. Municipal Water Connections C. Private Storm Water Management System D. Private Road and Parking Lot Construction, Including Signage & Striping E. Concrete Curb and Gutter F. Site Grading and Erosion Control G. Underground Utilities H. Setting of Iron Monuments Surveying and Staking J. Wetland Buffers & Buffer Signage The improvements shall be installed in accordance with the City development ordinances; City standard specifications for utility and street construction; and any other ordinances including the Chapter 79 of the City Code concerning erosion and drainage and Chapter 58 prohibiting grading, construction activity, and the use of power equipment between the hours of 8 o'clock p.m. and 7 o'clock a.m. on weekdays; and between the hours of 8 o'clock p.m. and 8 o'clock a.m. on weekends. The Developer shall submit plans and specifications which have been prepared by a competent registered professional engineer to the City for approval by the City Engineer. The Developer shall instruct its engineer to provide adequate field inspection personnel to assure an acceptable level of quality control to the extent that the Developer's engineer will be able to certify that the construction work meets the approved City standards where applicable, or commonly accepted industry standards, as a condition of City acceptance. In addition, the City may, at the City's discretion and at the Developer's expense, have one or more City inspectors and a soil engineer inspect the work on a full or part-time. The Developer, its contractors and subcontractors, shall follow all instructions received from the City's inspectors. The Developer's general contractor shall provide for on-site project management. The Developer or his general contractor shall schedule a pre- construction meeting at a mutually agreeable time at the City with all parties concerned, including the City staff, to review the program for the construction work. Within thirty (30) days after the completion of the 3 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) improvements and before the security is released, the Developer shall supply the City with a complete set of reproducible "as constructed" plans and an electronic file of the "as constructed" plans in an AutoCAD.DWG file or a .DXF file, all prepared in accordance with City standards, and should contain the following information: • all electronic info on Henn. Co. Coordinates • as-built grading plan (contours, EOFs, ponds, swales, etc.) • as-built street alignments, curb, gutter, edge of asphalt, etc. • as-built sign locations, utility locations (must have as-built points showing elevations, lengths, etc.), tree locations, monument locations • as-built building locations • as-built pond contours, OHW, HWL, outlet structure locations, etc. • as-built wetland delineations • hard copies of signed as-builts (2 copies 22x34, 1 copy 22x34 Mylars, 1 copy 11x17, CD with signed PDFs of Record Plans) 7. PERMITS. The Developer shall obtain or require its contractors and subcontractors to obtain all necessary permits, including but not limited to: • Minnesota Department of Health for Watermains • NPDES Permit for Stormwater Connections • MPCA for Sanitary Sewer and Hazardous Material Removal and Disposal • DNR for Dewatering • City of Orono for Building Permits • MCES for Sanitary Sewer Connections • City of Orono for Retaining Walls • MnDOT or Hennepin County for Access Permits • Minnehaha Creek Watershed District for Stormwater and Wetland • City of Wayzata for Sewer and Water Connection Changes as Determined in the 2011 Wayzata Fee Schedule 8. DEWATERING. Due to the variable nature of groundwater levels and stormwater flows, it will be the Developer's and the Developer's contractors and subcontractors responsibility to satisfy themselves with regard to the elevation of groundwater in the area and the level of effort needed to perform dewatering and storm flow routing operations. All dewatering shall be in accordance with all applicable county, state, and federal rules and regulations. DNR regulations regarding appropriations permits shall also be strictly followed. 9. TIME OF PERFORMANCE. The Developer shall install all required public and private improvements by November 30, 2012. The Developer may, however, request an extension of time from 4 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) the City. If an extension is granted, it shall be conditioned upon updating the security posted by the Developer to reflect cost increases and the extended completion date. Final wear course placement extensions must have the written approval of the City Engineer. 10. LICENSE. The Developer hereby grants the City, its agents, employees, officers and contractors a license to enter the Development/RPUD/PUD #7 to perform all work and inspections deemed appropriate by the City in conjunction with the development. 11. EROSION CONTROL. Prior to initiating site grading, the erosion control plan, Plan Sheet C3.3, shall be implemented by the Developer and inspected and approved by the City or the Minnehaha Creek Watershed District. The City or Minnehaha Creek Watershed District may impose additional erosion control requirements if they would be beneficial. All areas disturbed by the excavation and backfilling operations shall be reseeded within 48 hours after the completion of the work or in an area that is inactive for more than seven (7) days unless authorized and approved by the City Engineer. Except as otherwise provided in the erosion control plan, seed shall be in accordance with the City's current seeding specification which may include certified oat seed to provide a temporary ground cover as rapidly as possible. All seeded areas shall be fertilized, mulched, and disc anchored as necessary for seed retention. The parties recognize that time is of the essence in controlling erosion. If the Developer does not comply with the erosion control plan and schedule or supplementary instructions received from the City or the Minnehaha Creek Watershed District, the City may take such action as it deems appropriate to control erosion. The City will endeavor to notify the Developer in advance of any proposed action, but failure of the City to do so will not affect the Developer's and City's rights or obligations hereunder. If the Developer does not reimburse the City for any cost the City incurred for such work within ten (10) days, the City may draw down the letter of credit to pay any costs. No development, utility or street construction will be allowed and no building permits or certificates of occupancy will be issued unless the Development/RPUD/PUD #7 is in full compliance with the approved erosion control plan. Prior to final development approval by the Orono City Council, the Developer shall provide a $10,000.00 security to guarantee compliance with the 5 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) approved erosion control plan. The security required in this paragraph shall be made a part of the letter of credit. 12. GRADING PLAN. The Development/RPUD/PUD #7 shall be graded in accordance with the approved grading development and erosion control plan, Plan Sheets C3.1 — C3.4 subject to construction plan review comments from the City Engineer. The plan shall conform to City of Orono specifications. Prior to the issuance of a certificate of occupancy, the Developer shall provide the City with an "as constructed" grading plan certified by a registered land surveyor or engineer that all storm water treatment basins, swales, and ditches have been constructed on public easements pursuant to Plan Sheets C4.1 — C4.5. The "as constructed" plan shall include field verified elevations of the following: a) cross sections of storm water treatment basins; b) location and elevations along all swales, wetlands, wetland mitigation areas if any, ditches, locations and dimensions of borrow areas/stockpiles, and installed "conservation area" posts; and c) lot corner elevations and building pads, and all other items listed in City Code Section 86-68 (3). The "as constructed" plan shall also contain the information previously set forth in Paragraph 6. The City will withhold issuance of a certificate of occupancy until the approved certified grading plan is on file with the City and all erosion control measures are in place as determined by the City Engineer. The Developer certifies to the City that all lots with building footings placed on fill have been monitored and constructed to meet or exceed FHA/HUD 79G specifications. 13. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from construction work by the Developer, builders, subcontractors, their agents or assigns. Prior to any construction in the Development/RPUD/PUD #7, the Developer shall identify in writing a responsible party and schedule for erosion control, street cleaning, and street sweeping. 14. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. The Developer shall pay a fee for in-house engineering administration. City engineering administration will include monitoring of construction observation, consultation with Developer and his engineer on status or problems regarding the project, coordination for final inspection and acceptance, project monitoring during the warranty period, and processing of requests for reduction in security. The Developer shall pay for 6 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) construction observation performed by the City's in-house engineering staff or consulting engineer. Construction observation shall include part or full time inspection of proposed public utilities. 15. STORMWATER MANAGEMENT. Stormwater management for the Development/RPUD/PUD #7 will be provided by infiltration basins and stormwater ponds. Prior to final development approval by the Orono City Council, the Developer must provide suitable evidence of Minnehaha Creek Watershed District approval of the stormwater management plan. 16. STORM WATER AND DRAINAGE. Prior to final development approval by the Orono City Council, the Developer must pay the standard storm water and drainage trunk fee for residential development per the 2011 City Fee Schedule based on the rate for multifamily residential greater than 4 units per acres calculated as follows: 10.63 gross acres x $7,000/acre = $74,410.00 17. SEWER AND WATER. The Development/RPUD/PUD #7 is within the MUSA. Service and water service to serve the Development/RPUD/PUD #7 will be from the City of Wayzata via sewer and water mains that have been extended to the Development/RPUD/PUD #7 boundary. The Developer is responsible for installing the required sanitary sewer and municipal water connections subject to approval by the City Engineer. The City will inspect these systems during construction to ensure proper installation. There are no City sewer and water connection charges due with the Development/RPUD/PUD #7 because the property has been previously assessed for sewer and water installation. The Developer shall, however, be responsible for connection charges imposed on the City or the Developer by the City of Wayzata for connection to its sewer and water mains. Construction and maintenance of a non-clog sewer lift station to serve the Development/RPUD/PUD #7 is the responsibility of the Developer. MCES Sewer Availability Charges will be collected with the building permit for the property. 18. WETLAND AND WETLAND BUFFER AREAS. The Development/RPUD/PUD #7 property contains approximately 3.8 acres of wetland containing two wetland basins. The wetland areas are subject to the standard City Permanent Flowage and Conservation Easement and Restrictive 7 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) Covenant for Wetland and Wetland Buffers restrictions, and will be required to have wetland buffer markers installed. The Developer must conform to the City's wetland, wetland buffer and buffer setback requirements within Municipal Code, Chapter 78, Article XI Wetlands Protection. Prior to final development approval by the Orono City Council, the Developer shall provide a $12,000.00 security to guarantee future compliance checks and restoration work, if not completed by the Developer, to bring the buffer into vegetative compliance. The security required in this paragraph shall be made a part of the letter of credit. 19. SITE ACCESS, PARKING AND STREET/TRAFFIC/PARKING SIGNAGE. Vehicular access to the Development/RPUD/PUD #7 shall be via the existing drive, entering from Wayzata Boulevard at the southeast corner of the property. A private street of rural section 24 feet in paved width must be constructed to provide adequate emergency vehicle and delivery vehicle access to the Development/RPUD/PUD #7. Visitor and employee parking in the Development/RPUD/PUD #7 will be provided in a 53 stall surface parking lot. Appropriate street, traffic and parking signage including required stop signs within the parking lots and loading areas to ensure safe parking areas and pedestrian crossing within the Development/RPUD/PUD #7 shall be installed by the Developer subject to review and approval by Orono staff and City Engineer. 20. PARK DEDICATION AND TRAILS. The Developer shall pay the standard park dedication fee in lieu of land dedication based on the value of eight percent (8%) of the land with a minimum residential park fee of $3,250.00 per dwelling unit. Assuming the estimated market value of $1,276,000 from Hennepin County tax records, the minimum fee would apply. Applying the minimum residential park fee, and removing the memory care units, would result in a park fee calculated as follows: $3,250.00 x 42 units = $136,500 The Development/RPUD/PUD #7 abuts the MnDNR's Luce Line Trail. The proposed senior housing facility will be located at least sixty (60) feet from the trail right-of-way. There is no proposed pedestrian connection from the Development/RPUD/PUD#7 to the Luce Line Trail. 156433v06 8 ORONO/Orono Senior Housing Project SRN:r04/12/2011 No. 11-3498(875 Wayzata Boulevard) 21. CONSERVATION DESIGN AND TREE PRESERVATION. The Development/RPUD/PUD #7 is subject to the requirements of Orono Municipal Code Chapter 78, Article XII regarding Conservation Design. The construction limits on the site shall be clearly marked with adequate fencing to prevent any construction damage or disturbance of any trees and vegetation outside of the construction limits area. The Developer shall identify trees to be preserved on site, shall mark them on a site plan, and shall take extraordinary measures such as fencing, signage, etc. to ensure they are not disturbed. The Developer must strive to maintain perimeter vegetation along Wayzata Boulevard and Highway 12 to the greatest extent possible. 22. LANDSCAPING. Landscaping shall be installed in accordance with the approved landscape plan. All landscaping shall conform to the standards established by City ordinance for the RPUD District and shall meet all of the requirements of the RPUD District and the Conservation Design Code requirements to the satisfaction of the Orono City Council. Developer shall coordinate with City staff the placement of required trees not specifically located on the approved landscape plan. 23. SPECIAL PROVISIONS. The following special provisions shall apply to the Development/RPUD/PUD#7: A. Implementation of the recommendations in the February 7, 2011, Planning report. B. Implementation of the recommendations, requirements and findings of Orono Resolution No. 5948 approving the General Concept Plan for Property Located at 875 Wayzata Boulevard West, File No. 10-3472. C. Prior to final development approval by the Orono City Council, the Developer shall provide a title opinion or title insurance policy for the Development/RPUD/PUD #7 property listing all owners, mortgage holders or others with property interest. D. Prior to final development approval by the Orono City Council, the Developer must demonstrate to the satisfaction of the City Council that all requirements of the Minnehaha Creek Watershed District as administrator of the WCA regulations on the City's behalf are met, as well as all other Minnehaha Creek Watershed District permit requirements. 9 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) E. Prior to final development approval by the Orono City Council, the Developer shall provide appropriately executed Drainage and Utility Easements over areas identified on Plan Sheets C4.1 — C4.5 which is in recordable form. F. Prior to final development approval by the Orono City Council, the Developer shall provide the City with an appropriately executed Permanent Flowage and Conservation Easement and Restrictive Covenant for Wetland and Wetland Buffer document, in recordable form. G. The Orono Senior Housing facility shall be developed consistent with the plans approved by the Orono City Council, and consistent with the findings of the Master Development Plan Approval Resolution No. 6032. H. The Developer must install "fire lane" signage along the driveway in front of the senior housing facility as recommend by the Long Lake Fire Department. Any rooftop mechanical equipment must be screened from public view in compliance with City zoning ordinance requirements. J. Detailed light fixture plans for exterior lighting must be submitted with the application for the building permit for the Orono senior housing facility. Lighting must comply with the requirements of Section 78-831 of the City zoning ordinance. K. Development/RPUD/PUD #7 signage must be installed consistent with the approved plans. Signage for the Development/RPUD/PUD #7 is subject to the following conditions: • One monument sign along Wayzata Boulevard according to City Code Section 78- 1466(11) and shown on the proposed Plan Sheet C2.1. • Building wall signage shall be limited to two (2) wall signs not to exceed 50 square feet each. • No temporary signage shall be permitted except sales signs as defined in City Code Section 78-1466(4). • No signage shall be permitted along Highway 12. L. Prior to final development approval by the Orono City Council, the Developer shall furnish a boundary survey of the Development/RPUD/PUD #7 property with all property corner monumentation in place and marked with lath and a flag. Any encroachments on or adjacent to the property shall be noted on the survey. In addition, the certificate of survey must also include a certification 10 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) that all irons for a specific parcel/lot/outlot have either been found or set prior to the issuance of a building permit for that specific parcel/lot/outlot. M. The Developer shall pay a cash fee for the preparation of record construction drawings and City base map updating of$2,142.42. 24. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the terms of this agreement, payment of the costs of all public and private improvements, and construction of all public and private improvements, the Developer shall furnish the City with a letter of credit, in the form attached hereto or such other form as is acceptable to the City, from a bank ("security") for $666,877.42, which is 150% of the improvement costs; plus a cash escrow of $30,000.00 for City engineering administration and any legal fees incurred by the City at the time of building permit. The amount of the security is calculated per the City Engineer's estimate and other items as follows: CONSTRUCTION COSTS: Parking Lot, Grading, Landscaping $ 328,210.00 Sanitary Sewer 35,500.00 Watermain 49,330.00 Storm Sewer 15,450.00 CONSTRUCTION COST SUB-TOTAL $ 428,490.00 TOTAL CONSTRUCTION COSTS X 150% $ 642,735.00 OTHER COSTS: Erosion Control Security $ 10,000.00 Wetland Buffer Security 12,000.00 City Base Map Updating 2,142.42 TOTAL OTHER COSTS $ 24,142.42 TOTAL PROJECT SECURITIES: $ 666,877.42 This breakdown is for historical reference; it is not a restriction on the use of the security. The bank shall be subject to the approval of the City Administrator. The City may draw down the security for any uncured violation of the terms of this Contract or if the security is allowed to lapse prior to the end of the required term. If the required public improvements are not completed at least thirty (30) days prior to the expiration of the security, the City may also draw it down. If the security is drawn down, the proceeds shall be used to 11 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) cure the default. Upon receipt of proof satisfactory to the City that work has been completed and financial obligations to the City have been satisfied, with City approval the security may be reduced from time to time by ninety percent (90%) of the financial obligations that have been satisfied. Ten percent (10%) of the amounts certified by the Developer's general contractor shall be retained as security until all improvements have been completed, all financial obligations to the City satisfied, the required "as constructed" plans have been received by the City, a warranty security is provided, and the public improvements are accepted by the City Council. The City's standard specifications for utility and street construction outline procedures for security reductions. 25. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash requirements under this Contract which must be furnished to the City prior to final development approval by the Orono City Council: Park Dedication Fee $ 136,500.00 Storm Water & Drainage Trunk Fee 74,410.00 City Engineering & Legal Fees 30,000.00 SUb-TOTAL CASH REQUIREMENTS $ 240,910.00 TOTAL CASH REQUIREMENTS $ 240,910.00 26. WARRANTY. The Developer warrants all improvements required to be constructed by it pursuant to this Contract against poor material and faulty workmanship. The warranty period for streets is one year. The warranty period for underground utilities is two years and shall commence following completion and acceptance by City Council. The one year warranty period on streets shall commence after the final wear course has been installed and accepted by the City Council. The Developer shall post maintenance bonds in the amount of twenty-five percent (25%) of final certified construction costs to secure the warranties. The City shall retain ten percent (10%) of the security posted by the Developer until the maintenance bonds are furnished the City or until the warranty period expires, whichever first occurs. The retainage may be used to pay for warranty work. The City's standard specifications for utility and street construction identify the procedures for final acceptance of streets and utilities. 27. RESPONSIBILITY FOR COSTS. 156433v06 12 ORONO/Orono Senior Housing Project SRN:r04/12/201 1 No. 11-3498(875 Wayzata Boulevard) • A. Except as otherwise specified herein, the Developer shall pay all costs incurred by it or the City in conjunction with the Development/RPUD/PUD #7, including but not limited to Minnehaha Creek Watershed District charges, legal, planning, engineering and inspection expenses incurred in connection with approval and acceptance of the Development/RPUD/PUD #7, the preparation of this Contract, review of construction plans and documents, and all costs and expenses incurred by the City in monitoring and inspecting development. B. The Developer shall hold the City and its officers, employees, and agents harmless from claims made by third parties for damages sustained or costs incurred resulting from approval and development of the Development/RPUD/PUD #7. The Developer shall indemnify the City and its officers, employees, and agents for all costs, damages, or expenses which the City may pay or incur in consequence of such claims, including attorneys' fees. C. The Developer shall reimburse the City for costs incurred in the enforcement of this Contract, including engineering and attorneys' fees. D. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Contract within thirty (30) days after receipt. If the bills are not paid on time, the City may halt development and construction until the bills are paid in full. Bills not paid within thirty (30) days shall accrue interest at the rate of eighteen percent (18%) per year. E. In addition to the charges and special assessments referred to herein, other charges and special assessments may be imposed such as but not limited to sewer availability charges ("SAC"), City water connection charges, City sewer connection charges, and building permit fees. 28. DEVELOPER'S DEFAULT. In the event of default by the Developer as to any of the work to be performed by it hereunder, the City may, at its option, perform the work and the Developer shall promptly reimburse the City for any expense incurred by the City, provided the Developer, except in an emergency as determined by the City, is first given notice of the work in default, not less than forty-eight (48) hours in advance. This Contract is a license for the City to act, and it shall not be necessary for the 13 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) • City to seek a Court order for permission to enter the land. When the City does any such work, the City may, in addition to its other remedies, assess the cost in whole or in part. 29. MISCELLANEOUS. A. If the City determines that the Development/RPUD/PUD #7 does not comply with any City, County, Metropolitan, State or Federal laws or regulations, the City may, at its option, refuse to allow construction or development work in the Development/RPUD/PUD #7 until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. B. Third parties shall have no recourse against the City under this Contract. C. Breach of the terms of this Contract by the Developer shall be grounds for denial of building permits, including lots sold to third parties. D. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Contract is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Contract. E. Grading, curbing, and one lift of asphalt shall be installed on all public and private streets prior to issuance of a certificate of occupancy. F. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. G. This Contract shall run with the land and may be recorded against the title to the property. The Developer covenants with the City, its successors and assigns, that the Developer or an affiliate of Developer or a party acting on behalf of an affiliate of Developer will be well seized in fee title of the Development/RPUD/PUD #7 property prior to issuance of the building permit and/or has obtained consents to this Contract, in the form attached hereto, from all parties who have an interest in the property; that Developer knows of no unrecorded interests in the Development/RPUD/PUD #7 property; and that the Developer will indemnify and hold the City harmless for any breach of the foregoing covenants. 14 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) H. Developer shall take out and maintain or cause to be taken out and maintained until six (6) months after the City has accepted the public improvements, public liability and property damage insurance covering personal injury, including death, and claims for property damage which may arise out of Developer's work or the work of its subcontractors or by one directly or indirectly employed by any of them. Limits for bodily injury and death shall be not less than $500,000 for one person and $1,000,000 for each occurrence; limits for property damage shall be not less than $200,000 for each occurrence; or a combination single limit policy of $1,000,000 or more. The City shall be named as an additional insured on the policy on a primary and noncontributory basis, and the Developer shall file with the City a certificate evidencing coverage prior to final development approval by the Orono City Council. The certificate shall provide that the City must be given ten (10) days advance written notice of the cancellation of the insurance. Each right, power or remedy herein conferred upon the City is cumulative and in addition to every other right, power or remedy, express or implied, now or hereafter arising, available to City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power or remedy. J. Except as otherwise permitted herein, the Developer may not assign this Contract without the written permission of the City Council. The Developer's obligation hereunder shall continue in full force and effect even if the Developer sells the Development/RPUD/PUD #7 or any part of it. K. Retaining walls that require a building permit shall be constructed in accordance with plans and specifications prepared by a structural or geotechnical engineer licensed by the State of Minnesota. Following construction, a certification signed by the design engineer shall be filed with the City Engineer evidencing that the retaining wall was constructed in accordance with the approved plans and specifications. All retaining walls identified on the development plans or by special conditions referred to in 15 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) this Contract shall be constructed before any other building permit is issued for a lot on which a retaining wall is required to be built. 30. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, its employees or agents, or mailed to the Developer by certified mail at the following address: Kraus-Anderson Realty Company, 4210 West Old Shakopee Road, Bloomington, Minnesota 55437-2951. Notices to the City shall be in writing and shall be either hand delivered to the City Administrator, or mailed to the City by certified mail in care of the City Administrator at the following address: Orono City Hall, 2750 Kelley Parkway, P.O. Box 66. Crystal Bay, MN 55323. 31. DEVELOPER. The City hereby acknowledges that Developer is developing the Property on behalf of Engelsma Limited Partnership, a Minnesota limited partnership ("ELP") in order to qualify for a deferred exchange under IRC Section 1031. Notwithstanding any contrary provision herein, Developer shall remain liable for all of the obligations under this Development Contract until such time as ELP acquires title and at that time Developer will assign to ELP and ELP shall assume responsibility for all of the Developer's obligations under this Development Contract. [The remainder of this page has been intentionally left blank. Signature pages follow.] 16 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) . ,. CITY OF ORONO , A ,I*4- , . , ‘ . By: J4. ivr-e tecitud,,. & ,, ,:,-,,,,,.4,-3„, ..,0,,,,,--,,,,,, ,,, , % 7 , `'� ?vvv , ,'- Lili Tod McMillan, Mayor . sEk;L, j ��,4 r a; k 4, l: 1 AND ;s `' ' 'p:` Linda S. Vee, City Clerk - .v '' # 4 y , STATE OF MINNESOTA ) ( ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this c7 day of (A.R.ID. , 2011, by Lili Tod McMillan and by Linda S. Vee, the Mayor and City Clerk of the 9y of Orono, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. MONICA A. FADNESS ` ARY; . N• ARY PUBLIC $ "-. 'S NOTARY PUBLIC-MINNESOTA My Commission Expires Jan.31,2012 17 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) • DEVELOPER: CPE EXCHANGE 33968, LLC BY: A ® ----`,--- . -'- terson Its , hief Manager STATE OF MINNESOTA ) ) ss. COUNTY OF Ff(11 V"t p-o.1 ) The foregoing instrument was acknowledged before me this r ` day of M f 2011, by Jeff R. Peterson, the Chief Manager of CPE Exchange 33968, LLC, a Minnesota limited liability company, on behalf of the limited liability company. NOTARY PUBLIC KARLA J JORDAN ». NOTARY PUBLIC T MINNESOTA • , °' ' i My commission Expires Jan.31,2015 DRAFTED BY: CAMPBELL, KNUTSON Professional Association 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 Telephone: (651) 452-5000 SMM:srn T:\JIM-MARYENGELSMA LIMITED PARTNERSHIP\Orono Land-Senior Housing Project\Development\Devopment Contract&Residential PLD Agmt(Clean-5.6.1 l).Doc 18 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard) , EXHIBIT "A" TO DEVELOPMENT CONTRACT Legal Description of Property ORONO SENIOR HOUSING PARCEL 1 That part of the Southeast Quarter of the Southeast Quarter of Section 35, Township 118 North, Range 23 West of the 5th Principal Meridian, described as follows: Beginning at a point on the West line of said Southeast Quarter of the Southeast Quarter, 29.7 feet North of the Northeasterly line of the right of way of the Great Northern Railway Company; thence North along the West line of said Southeast Quarter of the Southeast Quarter to the South line of the right of way of the Electric Short Line Railway Company; thence Easterly along the South line of said Electric Short Line Railway Company to the Southwesterly line of State Highway 12, formerly No. 10; thence Southeasterly along said Southwesterly line of said Highway to a point distant 385 feet measured at right angles from the South line of Section 35; thence Westerly parallel with and distant 385 feet, measured at right angles from the South line of said Section 35, a distance of 1011.05 feet to the point of beginning. Excepting therefrom that part of the above described property as is contained in Document No. 3964258 Hennepin County Recorder's Office. And further excepting therefrom that part of the South Half of the Southeast Quarter of Section 35, Township 118 North, Range 23 West, shown as Parcel 97 on Minnesota Department of Transportation Right of Way Plat Numbered 27-134 as the same is on file and of record in the office of the County Recorder in and for Hennepin County, Minnesota. PARCEL 2 All that part of the Southwest Quarter of the Southeast Quarter of Section 35, Township 118, Range 23 lying South of the Southeasterly right of way line of the Electric Short Line Railway Company and Northeasterly of the Northeasterly right of way line of the Great Northern Railway Company. Excepting therefrom that part of the South Half of the Southeast Quarter of Section 35, Township 118 North, Range 23 West, shown as Parcel 97 on Minnesota Department of Transportation Right of Way Plat Numbered 27-134 as the same is on file and of record in the office of the County Recorder in and for Hennepin County, Minnesota. [ABSTRACT PROPERTY] 19 ORONO/Orono Senior Housing Project No. 11-3498 (875 Wayzata Boulevard)