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HomeMy WebLinkAboutResolution No. 2018-070 Property Transfer - York Avenue CITY OF EDINA HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2018-70 RESOLUTION APPROVING TRANSFER OF PROPERTY WHEREAS, the City is the fee owner of a vacant lot located in the City of Edina, PID 2002824230003 ("Subject Property") which it desires to sell for residential purposes; WHEREAS, the City listed the Subject Property and received three offers with the highest offer by Craft Homes L.L.C. ("Craft Homes") for $151,000.00 as provided in the Contract for Private Development attached hereto as Exhibit A ("Contract"); WHEREAS, the City desires to convey the Subject Property to Craft Homes under the terms of the Contract; WHEREAS, Minn. Stat. §462.356, subd. 2 requires that the Planning Commission review the City's proposed disposal of real property for compliance with the comprehensive plan and to report to the City Council in writing its findings; and WHEREAS, Minn. Stat. §462.356, subd. 2 provides for an exception from the requirement for review by the Planning Commission upon 2/3 vote of the City Council dispensing with the requirement and finding that the disposal of the real property has no relationship to the comprehensive municipal plan; NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Edina: I. The conveyance of the Subject Property to Craft Homes pursuant to the Contract is approved. 2. The City Council finds that the conveyance of the Subject Property has no relationship to the Comprehensive Plan. 3. The requirements of Minn. Stat. §462.356 are he eby dispensed with as the same relate to the conveyance of the Subject Property by the City p rsuant to the Contract. 4. The Mayor and City Manager are hereby autl1lotized and directed to execute any and all documents as necessary to com�ple,�te the sale t a. s4ction. PASSED AND ADOPTED this 1�rv( day of 2018 by the City Council of the City of Edina, Minn op. 1 Attest Debra A. Mangen, City Clerk James B. Hovland, Mayor CITY OF EDINA 1926741 4801 West 50th Street• Edina,Minnesota 55424 www.EdinaMN.gov•952-927-8861 • Fax 952-826-0389 STATE OF MINNESOTA ) COUNTY OF HENNEPIN ) SS CITY OF EDINA ) CERTIFICATE OF CITY CLERK 1, the undersigned duly appointed and acting City Clerk for the City of Edina do hereby certify that the attached and foregoing Resolution is a true and correct copy of the Resolution duly adopted by the Edina City Council at its regular meeting of August 8, 2018, and as recorded inTinutes of sai regular meeting. r WITNESS, my hand and seal of said City this day of ' 20 f Debra A. Mangen, Ci y Clerk 2 192674v1 EXHIBIT "A" 3 192674vl i (reserved for recording irrforrnation CONTRACT FOR PRIVATE DEVELOPMENT CRAFT HOMES L.L.C. i I THIS AGREEMENT, made on or as of the Aday of 2018, by and between the CITY OF EDINA, a Minnesota municipal corporation (the " ity") and CRAFT HOMES L.L.C.,a Minnesota limited liability company(the"Developer"). WITNESSETH: WHEREAS, the City has received a proposal for the sale of the real property located in Edina, Minnesota legally described in Exhibit "A" attached hereto (the "Property") to the Developer for development of of the Property as a single family residence (the"Project"); and i WHEREAS, Developer has proposed to acquire the Property to construct a single family home meeting Edina City Code requirements("Minimum Improvements"); and WHEREAS, the City believes that the Project and fulfillment generally of this Agreement is in the best interest of the City and the health, safety, morals and welfare of the I residents of the City of Edina and in accord with the public purposes and provisions of the applicable state and local laws and requirements. NOW,THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: i 198318v5 I I I i ARTICLE I. DEFINITIONS In this Agreement, unless a different meaning clearly appears from the context: "Agreement" [or "Contract"] means this Contract for Private Development by and between the City and the Developer, as the same may be from time to time modified, amended or supplemented. "Articles and Sections" mentioned by number only are the respective Articles and Sections of this Agreement so numbered. "City" means the City of Edina,Minnesota. "County" means the County of Hennepin,Minnesota. "Deed" means the limited warranty deed described in Section 3.1 to be executed by the City conveying the Property to the Developer. "Developer" means Craft Homes L.L.C., a Minnesota limited liability company, or any assigns that have received prior written approval from the City. "Event of Default" means an action by the Developer listed in Article VII of this Agreement. "Minimum Improvements" means a single family residence constructed on the Property, in accordance with all applicable local, state and federal regulations governing the Minimum Improvements, and in conformance with the site plans approved by the City. "Parties" means the Developer and the City. "Party" means either the Developer or the City. "Project" means the Property and the completed Minimum Improvements thereon. "Property" means the real property as legally described in Exhibit"A" attached hereto. "Purchase Price" means the sum of One Hundred Fifty Thousand Thousand and No/100 Dollars($151,000.00),which the Developer shall pay the City for the purchase of the Property. "State" means the State of Minnesota. "Unavoidable Delays" means delays outside the control of the Party claiming its occurrence which are the direct result of strikes, other labor troubles, unusually severe or prolonged bad weather, Acts of God, fire or other casualty to the Minimum Improvements, 198318v5 2 i litigation commenced by third parties which, by injunction or other similar judicial action, directly results in delays, or acts of any federal, state or local governmental unit (other than the City) which directly result in delays. Unavoidable delays shall not include delays in the Developer's obtaining permits or governmental approvals necessary directly to enable construction of the Minimum Improvements. ARTICLE II. REPRESENTATIONS AND WARRANTIES Section 2.1. Representations and Warranties by the City. The City represents and warrants that: I (a) The City is a Minnesota municipal corporation and has the power to enter into this Agreement and carry out its obligations hereunder. (b) Subject to satisfaction of the terms and conditions of this Agreement,the City will convey the Property to the Developer for development in accordance with the terms of this Agreement. (d) The City does not know of any"wells"(within the meaning of Minn. Stat. Section 103I.005, subd. 21)on the Property and has not received notice of the existence of any "wells" on the Property. This representation is intended to satisfy the requirements of Minnesota Statutes Section 103I.235. (e) To the best of the City's knowledge, and without independent investigation,there are no underground tanks, wells or individual sewage treatment systems located on, within or serving the Property. This statement is intended to satisfy the requirements of Minnesota Statutes section 115.55 and Minnesota Statutes Section 116.48. (f) To the best of the City's knowledge, no methamphetamine production has occurred on the Property. This statement is being made pursuant to the disclosure requirements of Minnesota Statutes Section 152.0275. (g) To the best of the City's knowledge and without independent investigation by the City, the Cty has not received written notice of the presence or existence of any hazardous materials regulated by any applicable federal, state, county or local government authorities in amounts on the Property that violate existing law. (h) The City has not received notice of default concerning any`of its obligations or liabilities regarding the Property; (i) The City has not received written notice of any action, litigation, investigation, condemnation or proceeding of any kind pending or threatened against the City or any portion of the Property. 1983180 3 ` I i I (j) The City makes no representation or warranty, either express or implied, as to the 'Property or its condition or soil conditions thereon, or that the Property is suitable for the Developer's needs except as specifically set forth in this Agreement. (k) The City has received no notice of and has no knowledge of any pending or proposed special assessments affecting the Property or any proposed or pending public improvements which may give rise to any special or area assessments affecting the Property. (1) The City has no actual knowledge of any leases, oral or written, affecting the Property nor any other right, title or interest in or to the Property granted to any third party except as otherwise shown on the survey to be provided under the terms of this Agreement. All representations and warranties shall survive Closing for a period of two (2)years. Section 2.2. Representations and Warranties by the Developer. The Developer represents and warrants that: (a) The Developer has the capacity to enter into this Agreement and to perform its obligations hereunder. (b) When the Property is conveyed to the Developer, the Developer will construct, operate and maintain the Minimum Improvements upon the Property in accordance with the terms of this Agreement, and all local, state and federal laws and regulations (including, but not limited to, environmental, zoning, building code and public health laws and regulations). (c) The Developer will construct the Minimum Improvements in accordance with all local, state or federal energy-conservation laws or regulations. I (d) The Developer will obtain, in a timely manner, all required permits, licenses and approvals and to 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 Minimum Improvements may be lawfully constructed. (e) The Developer will cooperate with the City, and the City will cooperate with the Developer with respect to any litigation commenced with respect to the Property or the Minimum Improvements. (f) The Developer will construct the Minimum Improvements on the Property in accordance with the plans approved by the City and will commence construction of the Minimum Improvements on or before December 31, 2019. Ii t 1983180 4 I, i i (g) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the I terms and conditions of this Agreement is prevented, limited by or conflicts with, or results in a breach of, the terms, conditions or provisions of any corporate restriction or any evidences of indebtedness, agreement or instrument of whatever nature to which the Developer is now a party or by which it is bound or constitutes a default under any of the foregoing. (h) Whenever any Event of Default occurs and if the City shally employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement of performance or observance of any obligation or agreement on the part of the Developer under this Agreement, the Developer agrees that it shall, within ten (10)days of written demand by the City, pay to the City the reasonable fees of such attorneys and such other expenses so incurred by the City. All representations and warranties shall survive Closing. ARTICLE III. ` CONVEYANCE OF PROPERTY Section 3.1. Status of Property. Subject to the satisfaction of the terms and conditions of this Agreement, the City agrees to sell the Property to the Developer and the Developer agrees to purchase the Property from the City in "as-is" condition, as further provided under Section 3.9, through the execution and delivery of a limited warranty deed containing a right of reversion as provided under Section 6.3 of this Agreement and subject to the following: following Permitted Encumbrances: (a) Reservations of minerals or mineral rights by the State of Minnesota, if any; I (b) Building and zoning laws, ordinances, state and federal regulations; (c) Restrictions related to use or improvements of the Property that do not affect Developer's intended use or improvement of the Property; (d) Easements that do not interfere with Developer's intended improvements and use; i I (e) The lien of real property taxes and the lien of special assessments and interest due thereon, if any, payable in the year of closing which by the terms of this Purchase Agreement are to be paid or assumed by the Developer; and (f) Any encumbrances shown on the title commitment to which Developer has not i objected to under Section 3.5 of this Agreement("Permitted Encumbrances"). I i 1983180 5 Section 3.2. Conditions Precedent to Conveyance of Property. (a) The City's obligation to convey the Property shall be subject to the satisfaction of, or waiver in writing by the City of,all of the following conditions precedent: (i) The Developer not being in default under the terms of this Agreement; (b) The Developer shall be obligated to accept title to the Property subject to satisfaction, or waiver in writing by the Developer, of the following conditions precedent: (i) The City not being in default under the terms of this Agreement; and (ii) The results of any inspection of the Property conducted pursuant to Section 3.6. If the contingencies have not been satisfied or waived by the parties prior to the Closing Date, then the respective party may elect to terminate this Agreement by written notice delivered to the other party. In the case of termination by the City, the City shall terminate this Agreement by giving a 30-day written notice to Developer pursuant to Minnesota Statutes section 559.21, as it may be amended for time to time. If Developer fails to cure such default within thirty (30) days of the date of such notice, this Agreement shall terminate. Upon such termination, neither party will have any further rights or obligations regarding this Agreement or the Property. If either party fails to terminate prior to Closing, then the contingencies pertaining to each such respective contingency shall be deemed waived by the party entitled to assert the contingency and the parties shall perform under this Agreement. Developer agrees to diligently proceed to satisfy the conditions of this Section. Section 3.3. Purchase Price. The purchase price for the Property shall be payable by Developer as follows: I� (a) Fifteen Thousand One Hundred and No/100 Dollars ($15,100.00) as earnest money, the receipt of which is hereby acknowledged by the City to be held in a +� non-interest bearing account, but which shall be applied to the purchase price i hereunder ("Earnest Money"). The Earnest Money shall be non-refundable except in the event of termination of this Agreement by Developer pursuant to Section 3.2(b) or as specifically provided under Section 4.5 of this Agreement; and (b) The balance payable in cash, certified funds or wire transfer paid to the City at Closing. I o 198318v5 6 Section 3.4. Closing. (a) Within ten (10) days after the satisfaction and/or waiver of all of the conditions contained in Section 3.2 of this Agreement, and in any event no later than September 7, 2018 ("Closing Date"), unless otherwise extended by approval of the Parties, provided all conditions precedent for the City and Developer to close have either been met or waived, and the Developer pays the City the Purchase Price, the City shall convey the Property to the Developer through the execution and delivery of the Deed and all other documents reasonably required by Developer and the Title Company (as hereinafter defined). This closing shall be at a location mutually agreed upon by the parties. (b) The Developer shall take possession of the Property upon execution and delivery of the Deed by the City at closing. (c) At Closing,the Developer shall pay: (i) the cost of the ALTA Owner's title insurance policy, including the cost of any endorsements or extended coverage provisions, if any; j (ii) one-half of the closing fees charged by the Title Company; (iii) the cost for any environmental investigation,tests,or surveys elected to be completed by Developer, including consultants hired by Developer; (iv) all taxes payable in accordance with the terms of this Agreement; (v) its own attorneys' fees; and (vi) recording fees for documents required to be recorded at Closing. (e) At Closing, the City shall pay: (i) the cost for issuance of the title commitment; ` (ii) one-half of the closing fees charged by the Title Company; (iii) recording fees for documents necessary to state deed tax relating to the conveyance of the Property and conservation fees; and (iv) all taxes and assessments payable in accordance with this Agreement; (v) all other charges customarily paid by a seller in similar transactions. (f) All costs incidental to the Closing not otherwise specifically allocated under this Agreement shall be allocated in accordance with the custom and practice for similar transactions in Minnesota. Section 3.5. Title. Within fifteen (15) days after the date of this Agreement, the City shall obtain a current commitment for the issuance of a ALTA Form B owner's policy of title insurance (the "Commitment") issued by Custom Home Builders Title, LLC ("Title Company") in the amount of the Purchase Price, accompanied by copies of all recorded documents affecting I the Property and searches for real estate taxes, bankruptcies,judgments, liens and assessments. ` I i 1983180 7 f I i (ii) Seller's Affidavit. A standard form affidavit by the City indicating that on the date of Closing there are no outstanding, unsatisfied judgments,tax liens or bankruptcies against or involving the City or the Property; that there has been no skill,labor or material furnished to the Property for which payment has not been made or for which mechanic's liens could be filed; and that there are no other unrecorded interests in the Property. (iii) Non-Foreign Person Certification. A certification in form and content satisfactory to the parties hereto and their counsel, properly executed by the City, containing such information as shall be required by the Internal Revenue Code, and the regulations issued there under, in order to establish that the City is not a "foreign person" as defined in §1445(f)(3) of such Code and such regulations. (iv) Storage Tanks. If required, an affidavit with respect to storage tanks pursuant to Minn. Stat. § 116.48. (v) Well Certificate. If there is a well located on the Property, a well disclosure certificate in form and substance true to form for recording. (vi) Other Documents. All other documents reasonably determined by either party or the title insurance company to be necessary to transfer and provide title insurance for the Property. (b) Developer shall execute and deliver at Closing: (i) Purchase. The Purchase Price. (ii) Other Documents. All other documents reasonably determined by either party or the title insurance company to be necessary to transfer and provide title insurance for the Property. Section 3.8. Charges to be Paid by Developer. Developer shall be responsible for all appropriate fees in connection with issuance of building permits. Developer shall be responsible for City engineering fees for review and inspection of Constructions Plans and improvements not covered by the building permit fees for private improvements directly related to the Property such as, but not limited to, in-house and/or consulting engineering fees for public utility connections, work in the City right of way, alley, curb, and sidewalk areas. Developer shall be responsible for any costs for repair or maintenance to City property caused by Developer's construction of the Minimum Improvements. 3.9. No Representation by the City. EXCEPT AS EXPRESSLY SET FORTH IN j THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT THE CITY IS NOT MAKING AND HAS NOT MADE, AT ANY TIME, ANY WARRANTIES OR i 198318v5 9 i i REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN THE CITY'S LIMITED WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL CONDITIONS, UTILITIES, ACCESS, OPERATING HISTORY OR PROJECTIONS, VALUTION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY PROPERTY DATA OR OTHER.INFORMATION PERTAINING TO THE PROPERTY DELIVERED TO DEVELOPER BY THE CITY OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. DEVELOPER ACKNOWLEDGES AND AGREES THAT UPON THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT, THE CITY SHALL SELL AND DEVELOPER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS". DEVELOPER HAS NOT RELIED AND WILL NOT RELY ON, AND THE CITY IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO MADE OR FURNISHED BY THE CITY OR AGENT REPRESENTING OR PURPORTING TO REPRESENT THE CITY, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. THE DEVELOPER REPRESENTS TO THE CITY THAT DEVELOPER HAS CONDUCTED, OR WILL HAVE HAD THE OPPORTUNITY TO CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL, ENVIRONMENTAL AND GEOTECHNICAL CONDITIONS THEREOF, AS DEVELOPER DEEMS NECESSARY TO SATISFY ITSELF OF THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES OR MATERIALS ON, WITHIN, UNDER OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED I BY OR ON BEHALF OF THE CITY. UPON CLOSING, DEVELOPER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, ADVERSE PHYSICAL, ENVIRONMENTAL AND GEOTECHNICAL CONDITIONS MAY HAVE BEEN REVEALED BY DEVELOPER'S INVESTIGATIONS, AND DEVELOPER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED THE CITY (AND THE CITY'S OFFICIALS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT) LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH DEVELOPER MIGHT HAVE ASSERTED OR ALLEGED AGAINST THE CITY (AND THE CITY'S i 198318v5 10 i I i OFFICERS, DIRECTORS, SHAREHOLDER, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS) AND ANY AND ALL j OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING j THE PROPERTY. The City and Developer agree that the provisions of this Section 3.9 shall survive the closing of the transaction contemplated by this Agreement. f ARTICLE IV. j CONSTRUCTION OF MINIMUM IMPROVEMENTS Section 4.1. Construction of Minimum Improvements. The Developer agrees that it will construct the Minimum Improvements on the Property in accordance with construction plans approved by the City, (the "Construction Plans") and will operate and maintain, preserve and keep the Minimum Improvements or cause the Minimum Improvements to be maintained, preserved and kept with the appurtenances and every part and parcel thereof in good repair and condition. Developer acknowledges that, in addition to City approval of plans, Developer is required to obtain all necessary City approvals for the development. Section. 4.2. Construction Plans. (a) On or before October 1, 2018, the Developer shall submit to the City a site plan for the Property ("Site Plan") and the Construction Plans for the Minimum Improvements. The Construction Plans shall provide for the construction of the Minimum Improvements and shall be in conformity with this Agreement,the Site Plan, and all applicable state and local laws and regulations. The City shall approve the Construction Plans in writing if, in the reasonable discretion of the j cITY: (i) the Construction Plans conform to the terms and conditions of this j Agreement; (ii)the Construction Plans conform to all applicable federal, state and local law, ordinances, rules and regulations; (iii) the Construction Plans are adequate to provide for the construction of the subject Minimum Improvements; (iv) the Construction Plans do not provide for expenditures in excess of the funds which will be available to the Developer for the construction of the Minimum Improvements; and (v) no Event of Default has occurred and is continuing. No j approval by the City under this Section 4.2 shall relieve the Developer of the obligation to comply with the terms of this Agreement, applicable federal, state and local laws, ordinances, rules and regulations, or to construct the Minimum j Improvements. No approval by the City shall constitute a waiver of an Event of Default. The City shall review the Construction Plans within thirty (30) days of submission of a complete set of Construction Plans and either approve the same or provide Developer with a list of specific required changes to be made to the Construction Plans. Upon making the specific changes to the Construction Plans as required by the City, the Developer shall submit the Construction Plans with j i 1983180 11 j the required changes to the City for its approval and if Developer made the required changes,the Construction Plans shall be approved. (b) If the Developer desires to make any material change in any Construction Plans after their approval by the City, the Developer shall submit the proposed change to the City for approval. If the Construction Plans, as modified by the proposed change, conform to the requirements of this Section 4.2 of this Agreement with respect to such previously approved Construction Plans,the City shall approve the proposed change and notify the Developer in writing of its approval. Section 4.3. Construction of Minimum Improvements. The Developer shall commence construction of the Minimum Improvements on or before December 31, 2018. Subject to Unavoidable Delays, the Developer shall substantially complete construction of the Minimum Improvements,except for minor"punch list items",no later than December 31,2019. Section 4.4. Construction Requirements. In constructing the Minimum Improvements,the Developer shall comply with all federal,state and local laws and regulations. Section 4.5. Failure to Accept Title to Property or to Construct. In the event all conditions precedent herewith are met or waived and the Developer fails to accept title to the Property pursuant to Article III or construction of the Minimum Improvements is not commenced or completed as provided in Section 4.3 of this Agreement(subject to the provisions of Article VII hereof), the Developer shall be liable to the City for the amount of the City's actual expenses related to this Agreement as liquidated damages. I ARTICLE V. REAL PROPERTY TAXES Section 5.1 Taxes and Deferred Assessments. Except as otherwise provided herein, the City shall pay all general real estate taxes and installments of special-assessments due and payable in the year prior to the Date of Closing and years prior thereto. The City and Developer shall prorate all general real estate taxes due and payable on the Property in the year in which the Date of Closing occurs on a per diem basis. Except as otherwise provided below, City shall pay on or before Closing all levied and pending special assessments associated with the Property as of the date of this Agreement. ARTICLE VI Events of Default , Section 6.1. Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement(unless the context otherwise provides),any one or more of the following events: (a) Failure by the Developer to pay when due any payments required to be paid under this Agreement or to pay when due ad valorem taxes on the Property. 198318v5 12 i I i j (b) Failure by the Developer to commence, diligently pursue and complete construction of the Minimum Improvements, or portions thereof, pursuant to the terms, conditions and limitations of this Agreement. (c) Failure by Developer to observe or perform any other covenant, condition, obligation or agreement on its part to be observed or performed hereunder. (d) The Developer does any of the following prior to completion of construction of the Minimum Improvements: (i) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under United States Bankruptcy Laws or any similar federal or state laws; or(ii)make an assignment for the benefit of its creditors; or(iii)admit, in writing, its inability to pay its debts generally as they become due; or (iv) be adjudicated, bankrupt or insolvent. (e) If any warranty or representation by the Developer in this Agreement is untrue in any material respect. (f) Failure by City to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed hereunder. (g) If any warranty or representation by the City in this Agreement is untrue in any material respect. Section 6.2. City's Remedies on Default. Whenever any Event of Default by Developer referred to in Section 6.1 of this Agreement occurs, the City may take any one or more of the following actions and unless otherwise provided such actions may be taken only after providing thirty (30) days written notice to the Developer of the Event of Default and the Event of Default has not been cured within said thirty (30) days or, if the Event of Default is by its nature incurable within thirty (30)days,the Developer does not provide assurances to the City reasonably satisfactory to the City that the Event of Default will be cured and will be cured as soon as reasonably possible: (a) Suspend its performance under the Agreement until it receives assurances from the Developer, deemed adequate by the City, that the Developer will cure its default and continue its performance under the Agreement. (b) Terminate this Agreement; (c) Take whatever action, including legal, equitable or administrative action, which j may appear necessary or desirable to the City to collect any payments due or damages arising under this Agreement or to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. 198318v5 13 i i j Section 6.3. Revesting Title in City Upon Happening of Event Subsequent to Conveyance to Developer. In the Event that subsequent to the execution and delivery of the Deed and prior to the issuance of a Certificate of Completion: (a) Developer fails to begin or cause to begin construction of the Minimum Improvements in conformity with this Agreement, and such failure is not due to Unavoidable Delays; (b) Developer, after commencement of construction of the Minimum Improvements, defaults in or violates the obligations with respect to the construction of the Minimum Improvements, defaults in or violates the obligations with respect to the construction of the Minimum Improvements, including the nature and the date for the completion thereof, or abandons or substantially suspends construction work, and such act or actions is not due to Unavoidable Delays; (c) Developer or its successor in interest fails to pay real estate taxes or assessments on the Property or any part thereof when due; or places thereon any encumbrance or lien unauthorized by this Agreement, or suffers any levy or attachment to be made, or any supplier's or mechanic's lien, or any other unauthorized encumbrance or lien to attach; (d) Developer fails to comply with any of its covenants under this Agreement; Then the City shall have the right upon 30 days' written notice to Developer and the Developer's failure to cure within such 30 day period, or within a reasonable amount of time thereafter if Developer is diligently proceeding with the construction of the Minimum Improvements, then the City shall have the right to immediately re-enter and take possession of the Property and to terminate (and revest in the City) the estate conveyed by the Deed to the Developer, it being the intent of this provision, together with other provisions of the Agreement, that the conveyance of the Property to the Developer shall be made upon, and that the Deed shall contain a condition subsequent to the effect that in the event of any default on the part of the Developer and failure on the part of the Developer to remedy, end, or abrogate such default within the period and in the manner stated in such subdivisions, the City at its option may declare a termination in favor the cITY of the title, and all of the rights and interests in and to the Property conveyed to the Developer, and that such title and all rights and interests of the Developer, and any assigns or successors in interest to and in the Property, shall revert to the City. If Developer provides a title commitment and warranty deed to the Property in lieu of reversion, the City shall pay to Developer 90% of that portion of the Purchase Price actually paid by Developer to the City. The warranty deed shall convey fee title to the Property to Developer, subject only to the encumbrances identified under Section 3.1 of this Agreement. The title commitment required under this section shall be a current commitment for the issuance of an ALTA Form B owner's policy of title insurance issued by Title Company committing to insure good and marketable title to the Property in favor of the City. A deed of trust, mortgage, monetary lien or any other lien or encumbrance against the Property shall be deemed to be a title objection. Upon request,the City I shall release the right of revertor if the Minimum Improvements are completed and a certificate of occupancy or temporary certificate of occupancy have been issued for the Property. 198318v5 14 I Section 6.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the City or the Developer is intended to 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 this Agreement or now or 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. Section 6.5. Attorneys' Fees. Whenever any Event of Default occurs and the non- defaulting party shall employ attorneys or incur expenses for the collection of payments due or to become due or for the enforcement of performance or observance of any obligation or agreement on the part of the defaulting party under this Agreement, the defaulting party agrees that it shall, within ten (10) days of written demand by the non-defaulting party pay to the non-defaulting party the reasonable fees of such attorneys and such other expenses so incurred by the non- defaulting party; provided, that the defaulting party shall only be obligated to make such reimbursement if the non-defaulting prevails in such collection or enforcement action. Section 6.6 Developer's Remedies on Default. Whenever any Event of Default by City referred to in Section 6.1 of this Agreement occurs, the Developer may take any one or more of the following actions and unless otherwise provided such actions may be taken only after providing thirty (30) days written notice to the City of the Event of Default and the Event of Default has not been cured within said thirty(30) days or, if the Event of Default is by its nature incurable within thirty (30) days, the City does not provide assurances to the Developer reasonably satisfactory to the Developer that the Event of Default will be cured and will be cured as soon as reasonably possible: (a) Up to the Closing: (i) suspend its performance under the Agreement until it receives assurances from the City, deemed adequate by the Developer, that the City will cure its default and continue its performance under the Agreement;or (ii) terminate this Agreement; or (b) Take whatever action, including legal, equitable or administrative action, which may appear necessary or desirable to the Developer to collect any damages arising under this Agreement or to enforce performance and observance of any obligation, agreement, or covenant of the City under this Agreement. ARTICLE VII. ADDITIONAL PROVISIONS Section 7.1. Certificate of Completion. Promptly after substantial completion of the Minimum Improvements in accordance with those provisions of this Agreement, the City will 1983190 15 furnish Developer with a certificate of completion substantially in the form shown at Exhibit"B" (the "Certificate of Completion"). Such certification by the City shall be a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement with respect to the obligations of Developer, and its successors and assigns, to construct the Minimum Improvements, and shall operate to forever waive the City's interest in the Property, including the right of reverter. If the City shall refuse or fail to provide any certification in accordance with the provisions of this Section 7.1, the City shall, upon demand, provide Developer with a written statement, indicating in adequate detail in what respect Developer has failed to complete the Minimum j Improvements in accordance with the provision of this Agreement, or is otherwise in default, and what measures or acts will be necessary, in the opinion of the city, for Developer to take or perform in order to obtain such certification. Upon Developer's completion of the items so described by the City, the City shall deliver a fully executed Certificate of Completion to Developer. Section 7.2. Restrictions on Use. The Developer agrees for itself and its successors and assigns and every successor in interest to the Property, or any part thereof, that the Developer and such successors and assigns shall devote the Property to, and only to, and in accordance with,the uses specified in the City Code. Section 7.3. Equal Employment Opportunity. The Developer, for itself and its successors and assigns, agrees that during the construction of the Minimum Improvements provided for in this Agreement it will comply with all applicable federal, state and local equal employment and nondiscrimination laws and regulations. Section 7.4. Conflicts of Interest. No member of the governing body or other official of the City shall have any financial interest, direct or indirect, in this Agreement, the Project or any contract, agreement or other transaction contemplated to occur or be undertaken thereunder or with respect thereto, nor shall any such member of the governing body or other official participate in any decision relating to the Agreement which affects his personal interest or the interest of any corporation, partnership or association in which he is, directly or indirectly, interested. No member, official or employee of the City shall be personally liable to the Developer or any successors in interest, in the event of any default or breach by the City or for any amount which may become due to the Developer or successor or on any obligations under the terms of the Agreement. ` Section 7.5. Waiver and Release by Developer. The Developer hereby waives, releases and forever discharges the City from any claim for costs incurred in preliminary plans, specifications, site testing improvements, professional fees or legal fees in connection with the Project. Section 7.6. Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 198318v5 16 i i i Section 7.7. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under the Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid,return receipt requested or delivered personally; and (a) In the case of the Developer, is addressed or delivered personally to: Craft Homes L.L.C. 1123 Drew Drive Woodbury, MN 55129 (b) In the case of the City, is addressed or delivered personally to: City of Edina 4801 W. 501h Street Edina, Minnesota 55424 Attention: City Manager with a copy to: Andrea McDowell Poehler CAMPBELL KNUTSON Professional Association Grand Oak Office Center I 860 Blue Gentian Road, Suite 290 Eagan,Minnesota 55121 Telephone: (651)452-5000 (c) Either Party may, upon written notice to the other Party, change the address to which such notices and demands are made. Section 7.8. Disclaimer of Relationship. The Developer acknowledges that nothing contained in this Agreement nor any act by the City or the Developer shall be deemed or construed by the Developer or any third person to create any relationship of third-party beneficiary, principal and agent, limited or general partner or joint venture between the City and the Developer. Section 7.9. Covenants Running with the Land. The terms and provisions of this Agreement shall be deemed to be covenants running with the Property and shall be binding upon any successors or assigns of the Developer and any future owners or encumbrancers of the Property. Section 7.10. Counterparts. This Agreement is executed in any number of counterparts, each of which shall constitute one and the same instrument. 198318v5 17 Section 7.11. Law Governing. This Agreement will be governed and construed in accordance with the laws of Minnesota. Section 7.12. Facsimile Signature. The parties hereto acknowledge and agree that in order to expedite the signing of this Agreement and the processing, and review and compliance with the terms hereof, the parties may utilize facsimile equipment to transmit and convey signatures hereto and such other information as may be necessary. With respect to any such transmission bearing a signature for any party hereto and on which the receiver is or may be reasonably expected to rely, than if such a facsimile transmission is corroborated by regular facsimile printout showing the telephone number from which transmitted together with a date and time of transmission, it shall be binding on the sending party and may be relied upon by the party receiving the same. The sending party hereby acknowledges such reliance and weighs any defenses to the use of such documents or signatures. ` IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and behalf, and the Developer has caused this Agreement to be duly executed in its name and behalf,on or as of the date first above written. [Remainder of page intentionally left blank.] [Signature pages to follow.] Y I 198318v5 18 i CITY OF N i James B. Hovland Its Mayor By: ott al Its City Manager Attested By: 1"1 ebra Mangen Its City Clerk STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) t The foregoing instrument was acknowledged before me this day of , 2018, by James B. Hovland and Scott Neal, respectively, the Mayor and City Manager, o he City of Edina,a Minnesota municipal corporation, its b half. Notary Public I DEBRA A MANGEN � COMM. #610Publi578 State of Min „• �'1Y Commission nesot, Expires 1/3im 198318v5 19 DEVELOPER: ` CRAFT HOMES L.L.C. y: 1A- B _.... Nick Spal ' g, C ref Manager LYNETTE DiUNNO COMM. #31009821 Notary Public . w M Commission Exnnastt31J2p21 STATE OF MINNESOTA ) )Ss. COUNTY OF 4 ) The foregoing instrument was acknowledged before me this 31 day of Joy , 2018, by Nick Spalding, the Chief Manager of Craft Homes L.L.C., a Minnesota limited liability company, on behalf of the company. tai Public ` DRAFTED BY: Campbell Knutson Professional Association Grand Oak Office Center 1 860 Blue Gentian Road, Suite 290 Eagan, Minnesota 55121 Telephone: (651)452-5000 198318v5 20 EXHIBIT"A" LEGAL DESCRIPTION OF THE PROPERTY The North 125 feet of the East Two-fifths of the South Half of the East Half of the East Half of the l Northeast Quarter of the Southwest Quarter, Section 32, Township 28,Range 24. Subject to an easement for public street and utility purposes across the East 33 feet of the above described land in favor of the Cty of Edina as contained in CR Doc No. 4270032; Subject to an easement for public street and utility pruposes across the North 30 feet of the above described premises in favor of the City of Edina as contained in CR Doc No. 4270032. 4 F I 1983 IM i i i EXHIBIT"B" CERTIFICATE OF COMPLETION The undersigned hereby certifies that CRAFT HOMES L.L.C., a Minnesota limited liability company, ("Developer") has fully complied with its obligations to construct the Minimum Improvprents under tht document titled Contract for Private Development dated 20A- by and between the City of Edina, a Minnesota municipal corporation (the "City") and Developer, and that Developer is released and forever discharged from its obligations under the Agreement with respect to the obligations of Developer, and its successors and assigns, to construct the Minimum Improvements, and the City waives any right, title or interest it may have in the Property, including a right of reverter. The Hennepin County Recorder's Office/Registrar of Titles Office is hereby authorized to accept for recording the filing of this instrument, to be a conclusive determination of the satisfaction and termination of the covenants and conditions of the Contract for Private Development described above. IN WITNESS WHEREOF, the City has caused f i ertificate to be duly executed in its name and behalf on or as of the date first above-written. CITYOI. i i B James B. Hovland Its Mayor By: Scott Neal Its City Manager Attested By: Debra Mangen Its City Clerk i I I C i I 1993180 i i STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this Zday o. , 2 g g g by James B. Hovland and Scott Neal, respectively, e Mayor and City Manager, of4(�ejoity of Edina, a Minnesota municipal corporation, on its behalf. Notary Pu lic ' I I i i I t i i DRAFTED BY: Campbell Knutson Professional Association ` Grand Oak Office Center I 860 Blue Gentian Road, Suite 290 Eagan,Minnesota 55121 Telephone:(651)452-5000 j i i 1983180 i