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1a. Dev Contract for Country Hopsitality Suites r Ai C I TY OF -- t CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937-1900 • FAX (612) 937-5739 11 MEMORANDUM TO: Don Ashworth, City Manager ' FROM: Gary Warren, City Engineer 6 1 DATE: November 29 , 1989 SUBJ: Approve Development Contract for Country Hospitality Suites Bloomberg Companies Project No. 89-25 The attached development contract supplements the development contract which the HRA has entered into between Bloomberg Companies and Country Hospitality Suites . As a part of the hotel ' construction, certain public improvements will be installed by the City such as watermain relocation, parking lot improvements, storm sewer construction and lighting. Since certain elements of this construction need to be coordinated very carefully with the hotel construction and since this will be done as a City improve- ment project not governed by the HRA, the attached development contract has been prepared. A letter of agreement is on file with the City from Bloomberg Companies agreeing to the terms of the development contract. It is therefore recommended that the attached development contract between Bloomberg Companies and the City relative to the Country Hospitality Suites Hotel be approved by the City Council and authorized for execution. Attachment: Development Contract 1 I I I I I/ CITY OF CHANHASSEN DEVELOPMENT CONTRACT (City Installed Improvements ) BLOOMBERG ADDITION SPECIAL PROVISIONS ' AGREEMENT dated , 19 , by and between the CITY OF CHANHASSEN, a Minnesota municipal corporation, (the "City" ) , and BLOOMBERG COMPANIES INCORPORATED, a Minnesota ' Corporation (the "Developer") . 1. Request for Plat Approval. The Developer has asked ' the City to approve a plat for BLOOMBERG ADDITION (referred to in this Contract as the "plat") . The land is legally described on the attached Exhibit "A" . 2. Conditions of Plat Approval. The City hereby approves the plat on condition that the Developer enter into this Contract and furnish the security required by it. ' 3. Development Plans. The plat shall be developed in accordance with the following plans. The plans shall not be attached to this Contract. With the exception of Plan A, the plans may be prepared, subject to City approval , after entering the Contract, but before commencement of any work in the plat. If the plans vary from the written terms of this Contract, the written terms shall control. The plans are: Plan A--Plat dated ,' 1989, prepared by Clark Engineering Company. Plan B--Grading, Drainage, and Erosion Control Plan dated , 1989 , prepared by Plan C--Plans and Specifications for Improvements dated , 1989 , prepared by Plan D--Site Plan dated , 1989, prepared by Plan E--Landscaping Plan dated , 1989, 1 prepared by Plan F--Signage Plan dated , 1989, prepared 1 by 4. Private Improvements. The Developer shall install ' in accordance with City ordinances and standards and pay for the following: SP-1 11/28/89 A. Site Grading, Clearing and Grubbing B. Underground Utilities (e.g. gas, electric, telephone, CATV) C. Setting of Lot and Block Monuments D. Surveying and Staking E. Removal of Existing Asphalt and Concrete F. Removal of Sign G. Transplanting Trees H. Building Demolition 5. Public Improvements. The City shall design and construct the following public improvements within the plat: A. Sanitary Sewer B. Water System C. Storm Sewer Drainage System D. Parking Lot E. Lighting ' 6. Assessment of Costs. The City shall assess the cost of the public improvements referred to in paragraph 5 above together with administrative, planning, engineering, capitalized interest, legal and bonding costs against the plat. The assessments shall be deemed adopted on the date this Contract is signed by the City . The assessments shall be paid over an 8-year period without deferment, together with interest at a rate set by the City. Before the City issues a Certificate of Occupancy for a structure built on a lot, all of the aforementioned assessments against the lot must be paid in full. The Developer waives any and all procedural and substantive objections to the installation of the public improvements and the special assessments, including but not limited to hearing requirements and any claim that the assessments exceed the benefit to the property. The Developer waives any appeal rights otherwise available pursuant to M.S.A. S429.081. 1 7. Time of Performance. The Developer shall install all required improvements referred to in paragraph 4 above by November 30 , 1990 . The Developer may, however , request an exten- sion of time from 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. 8. Security. To guarantee payment of special assessments, the Developer has entered into an agreement with the Chanhassen Housing and Redevelopment Authority ( "HRA") . If the Developer or its assigns wants a certificate of occupancy for any structure to be constructed within the plat before the landscaping, Plan E, has been completed, the Developer must post a letter of credit or cash escrow in a form and amount acceptable to the City Manager to guarantee completion of the landscaping. 9. Parking. The City is constructing a public parking lot on Outlots A and B of the plat. If the owner of Lot 1, Block 1 of the plat is dissatisfied with the way the City is main- taining the parking lot or if the City determines it no longer SP-2 I needs to maintain the parking lot as a public parking lot, the City shall quit claim its interest in Outlots A and B of the plat to the owner of Lot 1 , Block 1 of the plat. The owner of Lot 1, Block 1 shall accept the conveyance and shall merge the outlots with Lot 1, Block 1 . 10. 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 registered mail at the following address: 1 Bloomberg Companies Incorporated Attn: Clayton Johnson Executive Vice President ' P.O. Box 100 Chanhassen, Minnesota 55317 Telephone: (612 ) 934-1509 ' Notices to the City shall be in writing and shall be either hand- delivered to the City Manager , or mailed to the City by registered- mail in care of the City Manager at the following address: Chanhassen City Hall 690 Coulter Drive P.O. Box 147 Chanhassen, Minnesota 55317 Telephone: (612 ) 937-1900 ' 11. Other Special Conditions. A. The Developer shall remove or properly abandon ' the existing watermain bisecting the property. If the watermain is not removed, the Developer assumes full responsibility for any resulting damage and injury and further agrees to indemnify and hold the City harmless from any resulting cost, damage, or expense which the City may pay or incur, including attorney ' s fees . B. The Developer shall coordinate and be respon- sible for the cost of relocating private utilities such as electric, phone, and gas lines. C. Any cost associated with the relocation of construction trailers and the like shall be borne by the Developer. The Developer shall ensure that the area where the City is installing public improvements is clear and accessible at all times. Any costs such as demobilization and remobilization incurred because the site is not clear and accessible shall be borne by the Developer. 12. General Conditions. The general conditions of this 11 Contract, approved by the City Council on February 22 , 1988 , are attached as Exhibit "B" and incorporated herein with the following exceptions: SP-3 r A. Paragraph 10 of the General Conditions is II amended to read: Park and Trail Dedication. Prior to the issuance II of a building permit, the Developer shall pay to the City a park dedication fee of $ which is ten percent (10%) of the agreed fair market value of the undeveloped property. II B. Paragraph 11 of the General Conditions is deleted. I CITY OF CHANHASSEN I BY: Donald J. Chmiel, Mayor (SEAL) I BY: Don Ashworth, City Manager II DEVELOPER: BLOOMBERG COMPANIES INCORPORATED I BY: IIts I STATE OF MINNESOTA ) I ) ss. COUNTY OF CARVER ) The foregoing instrument was acknowledged before me this I day of , 19 , by Donald J. -Chmiel•, Mayor, and by Don Ashworth, City Manager, of the City of Chanhassen, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. II Notary Public I I I SP-4 I STATE OF MINNESOTA ) ss . COUNTY OF The foregoing instrument was acknowledged before me this day of , 19 , by the of Bloomberg Companies Incorporated, a Minnesota corporation, on its behalf. 1 Notary Public 1 1 DRAFTED BY: ' Campbell , Knutson, Scott & Fuchs, P.A. 3460 Washington Drive, Suite 202 Eagan, Minnesota 55122 ' ( 612 ) 456-9539 SP-5 CITY OF CHANHASSEN DEVELOPMENT CONTRACT (City Installed Improvements) ' EXHIBIT "B" GENERAL CONDITIONS 1. Right to Proceed. Within the plat or land to be platted, 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, 3) the plat has been recorded with the County Recorder ' s Office of the County where the plat is located, and 4 ) the City Engineer has issued a written letter that the foregoing conditions have been satisfied and then the Developer may proceed. 2. Phased Development. If the plat is a phase of a 11 multi-phased preliminary plat, the City may refuse to approve final plats of subsequent phases if the Developer has breached this Contract and the breach has not been remedied. Development of subsequent phases may not proceed until Development Contracts for such phases are approved by the City. 3. Effect of Subdivision Approval. For two ( 2) years from the date of this Contract, no amendments to the City 's Comprehensive Plan, except an amendment placing the plat in the current urban service area, or official controls shall apply to or affect the use , development density, lot size, lot layout or dedications of the approved plat unless requirea 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 or dedication requirements enacted after the date of this Contract. 4. Private Improvements. The private improvements specified in the Special Provisions of this Contract shall be installed in accordance with City standards, ordinances, and Approved by the City Council on 2/22/88. REVISED 8/8/88 - 19Q, R and S Added. REVISED 9/20/88 - 191 Revised. REVISED 3/22/89 - 12 and 17 Revised. REVISED 4/20/89 - 19T and U Added. REVISED 6/12/89 - 6 Revised. 11 REVISED 8/8/89 - 15 Revised. GC-1 1 plans which have been prepared and signed by the Developer, fur- nished to the City, and approved by the City Engineer. ' 5. License. The Developer hereby grants the City , its agents, employees, officers and contractors a license to enter the plat to perform all work and inspections deemed appropriate by the City in conjunction with plat development. 6. Site Erosion Control. Before the site is rough graded, and before any utility construction is commenced or building permits are issued, the erosion control plan, Plan B, shall be implemented, inspected, and approved by the City. The City may impose additional erosion control requirements if they would be beneficial. All areas disturbed by the excavation and ' backfilling operations shall be reseeded forthwith after the completion of the work in that area. Except as otherwise pro- vided in the erosion control plan, seed shall be certified 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 of supplemen- tary instructions received from the City, the City may take such action as it deems appropriate to control erosion at the Developer ' s expense. 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 I or obligations hereunder . No development will be allowed and no building permits will be issued unless the plat is in full compliance with the erosion control requirements. Erosion ' control needs to be maintained until vegetative cover has been restored, even if construction has been completed and accepted . After the site has been stabilized to where, in the opinion of the City, there is no longer a need for erosion control , the City ' will remove the erosion control measures . Before the City signs the final plat, the Developer shall pay the City a fee of $1. 00 per foot of erosion control that is required to be constructed in ' accordance with the erosion control plan for the plat, Plan B, to cover the City ' s cost for removal. 7. Clean Up. The Developer shall maintain a neat and orderly work site and shall daily clean, on and off site, dirt and debris , including all blowables, from streets and the surrounding area that has resulted from construction work by the ' Developer, its agents or assigns. 8. Acceptance and Ownership of Public Improvements. Upon completion and acceptance by the City of the work and construction required by this Contract, the improvements lying within public easements shall become City property. Before the City accepts the improvements, the City Engineer shall be satisfied that all work is satisfactorily completed in accordance with the approved plans and specifications . Final acceptance of the public improvements shall be by City Council resolution. GC-2 9. Claims. In the event that the City receives claims from laborers , materialmen, or others that work required by this Contract to be performed by the Developer has been performed , the sums due them have not been paid, and the laborers, materialmen, or others are seeking payment out of the financial guarantees posted with the City, and if the claims are not resolved at least ninety (90 ) days before the security required by this Contract will expire, the Developer hereby authorizes the City to commence an Interpleader action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Courts, to draw upon the letters of credit in an amount up to 125% of the claim(s) and deposit the funds in compliance with the Rule, and upon such deposit, the Developer shall release, discharge, and dismiss the City from any further proceedings as it pertains to the letters of credit depo- sited with the District Court, except that the Court shall retain jurisdiction to determine attorneys ' fees . 10. Park and Trail Dedication. Prior to the issuance of building permits for residential construction within the plat, the Developer, its successors or assigns, shall pay to the City the park and trail dedication fees then in force pursuant to Chanhassen City Ordinances and City Council resolutions. 11. Landscaping. Unless the lot already has one tree on it, the Developer shall plant a tree on every lot in the plat. Suitable trees include: Maples Honeylocust Ash Ginko (male only) Linden Hackberry Basswood Kentucky Coffee Tree Green Ash Oak Birch Other species of trees may be approved by the building inspector. ' Trees which can cause a public nuisance, such as cotton producing trees, or can be a public hazard, such as bug infestation or weak bark, are prohibited. The minimum tree size shall be two ( 2 ) 1 inches caliper, either bare root in season, or balled and burlapped. The trees may not be planted in the boulevard. In addition to any sod required as a part of the Erosion Control Plan, Plan B, the Developer shall sod the boulevard area and all drainage ways on each lot utilizing a minimum of four inches of topsoil as a base. Weather permitting, the trees, sod, and seed shall be planted before Certificates of Occupancy are issued for a lot. ' 12. Warranty. The Developer warrants all work required to be performed by it against poor material and faulty work- manship for a period of two ( 2) years after its completion and acceptance by the City. All trees, grass, and sod shall be warranted to be alive , of good quality, and disease free at the time of planting. All trees shall be warranted for twelve (12 ) months from the time of planting. The Developer or his contractor(s) shall post maintenance bonds (Miller-Davis Company Form No. 1636 or equal) or other security acceptable to the City to secure the warranties at the time of final acceptance. 13. Lot Plans. Prior to the issuance of building per- mits an acceptable Grading, Drainage, Erosion Control , and Tree GC-3 I II Removal Plan shall be submitted for each lot as required in the. Special Provisions, for review and approval by the City Engineer. Each plan shall assure that drainage is maintained away from buildings and that tree removal is consistent with City Ordinance. 14. Existing Assessments. Any existing assessments against the plat will be respread against the plat in accordance with City standards . 15. Street Lighting. The Developer shall have installed and pay for street lights in accordance with City stan- dards . A plan shall be submitted for the City Engineer 's appro- val prior to the installation. Before the City signs the final plat, the Developer shall pay the City a fee of $200 .00 for each ' light installed in the plat. The fee shall be used by the City for furnishing electricity for each light for twenty ( 20 ) months. 16. Street Signs. All street name and traffic signs ' required by the City as a part of the public improvements shall ti be furnished and installed by the City at the sole expense of the Developer. ' 17. Responsibility for Costs. ' A. The Developer shall pay an administrative fee in conjunction with the installation of the plat improvements. This fee is to cover the cost of City staff time and overhead for ' items such as review of construction documents, preparation of the Development Contract, monitoring construction progress , pro- cessing pay requests, processing security reductions, and final acceptance of improvements . The fee shall be calculated as follows: i ) if the cost of the construction of public improvements is less than $500 ,000 , three percent ( 3%1 of ' construction costs; ii ) if the cost of the construction of public improvements ' is between $500 ,000 and $1, 000 ,000 , three percent ( 3%) of construction costs for the first $500 ,000 and two percent ( 2%) of construction costs over $500 ,000; ' iii ) if the cost of the construction of public improvements is over $1 ,000 ,000 , two and one-half percent (2i%) of construction costs for the first $1,000 ,000 and one and one-half percent (1+ %) of construction costs over $1,000 ,000 . Before the City signs the final plat, the Developer shall deposit with the City a fee based upon construction estimates. After construction is completed, the final fee shall be determined based upon actual construction costs. The cost of public improvements is defined in paragraph 8 of the Special Provisions. B. The Developer shall hold the City and its gffi- cers and employees harmless from claims made by itself and third parties for damages sustained or costs incurred resulting from plat approval and development. The Developer shall indemnify the GC-4 I City and its officers and employees for all costs, damages , or expenses which the City may pay or incur in consequence of such claims, including attorneys ' fees . C. In addition to the administrative fee, the ' Developer shall reimburse the City for costs incurred in the enforcement of this Contract, including engineering and attor- neys' fees. 1 D. The Developer shall pay in full all bills sub- mitted 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 all plat development work and construction, including but not limited to the issuance of building permits for lots which the Developer may or may not have sold, until the bills are paid in full. Bills not paid within thirty (30 ) days shall accrue interest at the rate of 8% 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. 18. 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 is first given notice of the work in default, not less than four ( 4) days in advance. This Contract is a license for the City to act, and it shall not be necessary for the City to seek a Court Order for permission to enter the land. When the City does any such work, the City may, in addi- tion to its other remedies , assess the cost in whole or in part. 19. Miscellaneous. A. Construction Trailers. Placement of on-site construction trailers and temporary job site offices shall be approved by the City Engineer as a part of the pre-construction meeting for installation of public improvements. Trailers shall be removed from the subject property within thirty ( 30 ) days following the acceptance of the public improvements. pnless other- wise approved by the City Engineer. B. Postal Service. The Developer shall provide ' for the maintenance of postal service in accordance with the local Postmaster 's request. C. Third Parties. Third parties shall have no recourse against the City under this Contract. D. Breach of Contract. Breach of the terms of this Contract by the Developer shall be grounds for denial of building permits, including lots sold to third parties. 1 GC-5 1 II E. Severability. If any portion, section, subsec- tion, 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. ' F. Delays. If building permits are issued prior to the completion and acceptance of public improvements, the Developer assumes all resulting liability and costs from delays in completion of public improvements and damage to public improvements caused by the City, Developer, its contractors , sub- contractors , materialmen , employees , agents, or third parties . G. Occupancy. Unless approved in writing by the City Engineer, no one may occupy a building for which a building permit is issued on either a temporary or permanent basis until the streets needed for access have been paved with a bituminous surface. ' H. Waivers/Amendments. The action or inaction of the City shall not constitute a waiver or amendment to the provi- sions of this Contract. To be binding, amendments or waivers ' shall be in writing, signed by the parties and approved by writ- ten 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 . I. Release. This contract shall run with the land and may be recorded against the title to the property. After the ' Developer has completed the work required of it under this Contract, at the Developer ' s request the City Manager will issue a Certificate of Compliance. Prior to the issuance of such a certificate, individual lot owners may make written request for a certificate applicable to an individual lot allowing a minimum of ten ( 10 ) days for processing. 1 J. Insurance. Developer shall take out and main- tain until six ( 6) months after the City has acceptea the public improvements , public liability and property damage insurance covering personal injury, including death, and claims for pro- perty 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, and the Developer shall file with the City a certificate evidencing coverage prior to the City signing the plat. The certificate shall provide that the City must be given ten (10 ) days advance written notice of the cancellation of the insurance. The certificate may not contain any disclaimer for failure to give the required notice. K. Remedies. 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 GC-6 r • 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. L. Assignability. 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 one or more lots, the entire plat, or any part of it. 1 M. Construction Hours. Construction equipment may only be operated in the plat between 7:00 a.m. and 6:00 p.m. , ' Monday through Saturday. Operation of construction equipment is also prohibited on the following holidays: New Year ' s Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Eve Day, and Christmas Day. N. Access. All access to the plat prior to the City accepting the roadway improvements shall be the respon- sibility of the Developer, regardless if the City has issued building permits or occupancy permits for lots within the plat. 0. Street Maintenance. The Developer shall be 1 responsible for all street maintenance until streets within the subdivision are accepted by the City. Warning signs shall be placed by the Developer when hazards develop in streets to prevent the public from traveling on same and directing attention to detours . If streets become impassable, the City may order that such streets shall be barricaded and closed. The Developer shall maintain a smooth roadway surface and provide proper surface drainage. The Developer may request, in writing, that the city plow snow on the streets prior to final acceptance of the streets . The City shall have complete discretion to approve or reject the request. The city shall not be responsible for reshaping or damage to the street base or utilities because of snow plowing operations. The provision of City snow plowing service does not constitute final acceptance of the streets by the City. P. Soil Treatment Systems. If soil treatment systems are required, the Developer shall clearly identify in the field and protect from alteration, unless suitable alternative sites are first provided, the two soil treatment sites identified during the platting process for each lot. This shall be done prior to the issuance of a Grading Permit. Any violation/ disturbance of these sites shall render them as unacceptable and replacement sites will need to be located for each violated site in order to obtain a building permit. Q. Variances. By approving the plat, the Developer represents that all lots in the plat are buildable, without the need for variances from the City 's ordinances. 11 GC-7 • I 11 R. Compliance with Laws , Ordinances and Regulations. In the development of the plat the Developer shall comply with ' all laws, ordinances , and regulations of the following authorities: 1. City of Chanhassen; 2. State of Minnesota, its agencies, departments and ' commissions; 3. United States Army Corps of Engineers; 4 . Watershed District(s) ; 1 5. Metropolitan Government, its agencies, departments and commissions . ' S. Proof of Title. Upon request, the Developer shall furnish the City with evidence satisfactory to the City that it has the authority of the fee owners and contract for deed purchasers to enter into this Development Contract. T. Soil Conditions. The Developer acknowledges that the City makes no representations or warranties as to the condition of the soils on the property or its fitness for construction of the improvements or any other purpose for which the Developer may make use of such property. The Developer further agrees that it will indemnify, defend and hold harmless ' the City, its governing body members, officers , and employees from any claims or actions arising out of the presence, if any, of hazardous wastes or pollutants on the property. ' U. Soil Correction. The Developer shall be responsible for soil correction work on the property. The City ' makes no representation to the Developer concerning the nature of suitability of soils nor the cost of correcting any unsuitable soil conditions which may exist. - - - END OF GENERAL CONDITIONS - - - 1 1 1 1 GC-8