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Res 2014-83 CITY OF FRIDLEY ANOKA COUNTY, MINNESOTA RESOLUTION NO. 2014-83 RESOLUTION APPROVING, AUTHORIZING EXECUTION AND RECORDING OF THE DEVELOPMENT CONTRACT, TWO STORM WATER MAINTENANCE AGREEMENTS AND AN ENVIRONMENTAL INDEMNIFICATION AGREEMENT RELATING TO THE IMPROVEMENT OF REAL PROPERTY LOCATED AT 4880 EAST RIVER ROAD IN FRIDLEY, MINNESOTA WHEREAS, Fridley Land LLC owns real property located at 4880 East River Road, Fridley, Minnesota, described on the attached Exhibit A (Real Property); and WHEREAS, the Real Property is identified as tax parcels 27-30-24-13-0002 and 27-30-24-42- 0002; and WHEREAS, Fridley Land LLC will be conveying Lot 1, Block 1, Northern Stacks to Northern Stacks I LLC upon the platting of the Real Property; and WHEREAS, Fridley Land LLC, Northern Stacks I LLC and the City desire to record various documents against the Real Property to address and memorialize the parties’ agreements identified below as it relates to the development and improvement of Real Property. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Fridley: 1.The City Council hereby approves and authorizes the Mayor and City Manager to execute the Development Contract, two Storm Water Maintenance Agreements, and an Environmental Indemnification Agreement for the Real Property, legally described in Exhibit A identified as Tax Parcel No. 27-30-24-13-0002 and 27-30-24-42-0002 ; and 2.The City Council hereby approves the recording of the Development Contract, Storm Water Maintenance Agreements and Environmental Indemnification Agreement against the Real Property, legally described in Exhibit A identified as Tax Parcel No. 27-30-24- 13-0002 and 27-30-24-42-0002 ; and 3.The City Council authorizes City staff to record the Development Contract, Storm Water Maintenance Agreements, and Environmental Indemnification Agreement against the Real Property legally described in Exhibit A identified as Tax Parcel No. 27-30-24-13- 0002 and 27-30-24-42-0002. PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS TH 10 DAY OF NOVEMBER 2014. ___________________________ Scott J. Lund, Mayor ATTEST: ___________________________________ Debra A. Skogen, City Clerk Resolution No. 2014-83 Page 2 EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY Real Property located in the City of Fridley, Anoka County, Minnesota legally described as follows: Lots 1 and 2, Block 1, Northern Stacks ResolutionNo.2014-83 DEVELOPMENT CONTRACT FOR NORTHERN STACKS 1 INDEX TO CITY OF FRIDLEY DEVELOPMENT CONTRACT RECITALS ARTICLE 1 - DEFINITIONS 1.1Terms 1.2City 1.3Developer 1.4Owner 1.5Plat 1.6Development Plans 1.7Development Contract 1.8Council 1.9PWD 1.10Director of PWD 1.11County 1.12Other Regulatory Agencies 1.13Utility Companies 1.14Prior Easement Holders 1.15Developer Improvements 1.16City improvements 1.17Developer Public Improvements 1.18Developer Default 1.19Force Majeure 2 1.20Developerand OwnerWarranties A.Authority B.No Default C.Present Compliance With Laws D.Continuing Compliance With Laws E.No Litigation F.Full Disclosure G.Plat Compliance H.Warranty On Proper Work And Materials I.Obtaining Permits J. Fee Title 1.21 City Warranties A.Organization and Authority 1.22 Formal Notice 1.23 Escrow 1.24Engineering Escrow ARTICLE 2 - PLAT APPROVAL 2.1Plat Approval 2.2Plat Density 2.3Recording of Plat 3 ARTICLE 3 - CITY IMPROVEMENTS 3.1City Improvements ARTICLE 4 - DEVELOPMENT IMPROVEMENTS 4.1Developer Improvements 4.2 Ground Material 4.3 Grading - Drainage Plan And Easements 4.4Public Rights-of-Way and Easement Maintenance, Access and Repair 4.5 Occupancy 4.6 Driveways And Parking Lots 4.7 Vegetation 4.8 Landscaping 4.9 Erosion Control ARTICLE 5 - PARK DEDICATION AND CONTRIBUTION REQUIREMENTS 5.1Park Dedication And Contribution ARTICLE 6 - OTHER PERMITS 6.1Permits ARTICLE 7 - OTHER DEVELOPMENT REQUIREMENTS 7.1Miscellaneous Requirements ARTICLE 8 - DEVELOPER PUBLIC IMPROVEMENTS 8.1Approval of Contractors and Engineer 8.2Construction 8.3Inspection 8.4Faithful Performance of Construction Contracts 4 8.5City Acceptance 8.6Engineering Submittals Required ARTICLE 9 - RESPONSIBILITY FOR COSTS 9.1Developer Improvement Costs 9.2 Enforcement Costs 9.3 Time of Payment ARTICLE 10 - DEVELOPMENT WARRANTIES 10.1Statement of Developer and Owner Warranties ARTICLE 11 - CITY WARRANTIES 11.1Statement of City Warranties ARTICLE 12 - INDEMNIFICATION OF CITY 12.1Indemnification of City ARTICLE 13 - CITY REMEDIES UPON DEVELOPER DEFAULT 13.1City Remedies 13.2No Additional Waiver Implied By One Waiver 13.3No Remedy Exclusive 13.4Emergency ARTICLE 14 - ESCROW DEPOSIT 14.1Escrow Requirement 14.2Escrow Release And Escrow Increase; Developer Improvements ARTICLE 15 - MISCELLANEOUS 15.1 City's Duties 15.2 No Third Party Recourse 5 15.3 Validity 15.4 Federal Agencies 15.5 Recording 15.6 Binding Agreement 15.7 Contract Assignment 15.8 Amendment And Waiver 15.9Governing Law 15.10Counterparts 15.11Headings 15.12Inconsistency 15.13Access ARTICLE 16 - TERM 16.1 Term EXHIBIT A - Legal Description Of Plat EXHIBIT B - List of Development Plans EXHIBIT C - Developer Improvements EXHIBIT D - City Improvements EXHIBIT E - Miscellaneous Requirements And Conditions Imposed By The City EXHIBIT F - Escrow Calculation 6 CITY OF FRIDLEY DEVELOPMENT CONTRACT FOR NORTHERN STACKS, PHASE I THIS AGREEMENT, made and entered into on the ___ day of ____________, 20__, by and among the CITY OF FRIDLEY, a municipality of the State of Minnesota, (hereinafter called the CITY), and the OWNER and DEVELOPER identified herein. RECITALS: WHEREAS, the DEVELOPER has applied to the CITY for approval of the PLAT; WHEREAS, the DEVELOPER has applied to the CITY forapproval of the DEVELOPMENT PLANS associated with the PLAT; WHEREAS, in conjunction with the granting of these approvals, the CITY requires the installation of roadway including asphalt paving, concrete curb and gutter, striping, signage, and appurtenances, traffic signals, trail connections, water main, sanitary sewer main, storm sewer, storm water management systems, and landscaping; WHEREAS, under authority granted to it, including Minnesota Statutes Chapters 412, 429, and 462, the COUNCIL has agreed to approve the PLAT and DEVELOPMENT PLANS on the following conditions: 1.That the DEVELOPER enter into this DEVELOPMENT CONTRACT, which contract defines the work which the DEVELOPER undertakes to complete; and 2.The DEVELOPER shall provide anESCROWin anamount and with conditions satisfactory to the CITY, providing for the actual construction and installation of such improvements within the period specified by the CITY. WHEREAS, the DEVELOPER has filed three (3)complete sets of the DEVELOPMENT PLANS with the CITY; WHEREAS, the DEVELOPMENT PLANS have been prepared by a professional engineer licensed in the State of Minnesota and have been submitted to and approved by the DIRECTOR OF PWD. NOW, THEREFORE, subject to the terms and conditions of this DEVELOPMENT CONTRACT and in reliance upon the representations, warranties and covenants of the parties herein contained, the CITY, OWNER and DEVELOPER agree as follows: 7 ARTICLE 1 DEFINITIONS 1.1TERMS. The following terms, unless elsewhere defined specifically in the DEVELOPMENT CONTRACT, shall have the following meanings as set forth below. 1.2CITY. "CITY" means the City of Fridley, a Minnesota municipal corporation. 1.3DEVELOPER. "DEVELOPER" meansNorthern Stacks I LLCand its successors and assigns. 1.4OWNER. "OWNER" meansindividually and collectively Northern Stacks I LLC for purposes of Lot 1 of the PLAT and Fridley Land LLC for purposes of Lot 2 of the PLAT and their respective successors and assigns. 1.5PLAT. "PLAT" means the portion of the approved final plat of Northern Stacks comprising a portion of the real property located in Fridley, AnokaCounty, Minnesota and legally described on the attached Exhibit A. 1.6DEVELOPMENT PLANS. "DEVELOPMENT PLANS" means all those plans, drawings, specifications and surveys identified and checked on the attached Exhibit B, reviewed and approved by the CITY and hereby incorporated by reference and made a part of this DEVELOPMENT CONTRACT. 1.7DEVELOPMENT CONTRACT. "DEVELOPMENT CONTRACT" means this instant contract by and among the CITY, OWNER and DEVELOPER. 1.8COUNCIL. "COUNCIL" means the Council of the City of Fridley. 1.9PWD. "PWD" means the Public Works Department of the City of Fridley. 1.10DIRECTOR OF PWD. "DIRECTOR OF PWD" means the Director of the Public Works Department of the City of Fridleyand hisor herdelegates. 1.11COUNTY. "COUNTY" means AnokaCounty, Minnesota. 1.12OTHER REGULATORY AGENCIES. "OTHER REGULATORY AGENCIES" means and includes, jointlyand severally, the following: a.)Minnesota Department of Transportation b.)AnokaCounty c.)AnokaCounty Highway Department d.)Minnesota Department of Health 8 e.) Minnesota Pollution Control Agency f.)State of Minnesota g.)Minnesota Department of Natural Resources h.)Army Corps of Engineers i.)Metropolitan Council j.) Watershed District(s); k.) Watershed Management Organization l.)Environmental Protection Agency m.)Any other regulatory or governmental agency or entity affected by, or having jurisdiction over the DEVELOPER IMPROVEMENTS. 1.13UTILITY COMPANIES. "UTILITY COMPANIES" means and includes, jointly and severally, the following: a.)utility companies, including electric, gas and cable; and b.)pipeline companies. 1.14PRIOR EASEMENT HOLDERS. "PRIOR EASEMENT HOLDERS" means and includes, jointly and severally, all holders of any easements or other property interests which existed prior to the grant or dedication of any public easements transferred by the PLATor transferred pursuant to this DEVELOPMENT CONTRACT. 1.15DEVELOPER IMPROVEMENTS. "DEVELOPER IMPROVEMENTS" means and includes, jointly and severally, all the improvements identified in Article 4 and on the attached Exhibit C. 1.16CITY IMPROVEMENTS. "CITY IMPROVEMENTS" means and includes, jointly and severally, all the improvements identified and checked on the attached Exhibit D. 1.17DEVELOPER PUBLIC IMPROVEMENTS. "DEVELOPER PUBLIC IMPROVEMENTS" means and includes, jointly and severally, all the improvements identified and checked on the attached Exhibit C that are further labeled "PUBLIC". DEVELOPER PUBLIC IMPROVEMENTS are improvements to be constructed by the DEVELOPER within public rights- of-way or within public easements and which are to beapproved and later accepted by the CITY and transferred to the CITY for future operations and maintenance. DEVELOPER PUBLIC IMPROVEMENTS are part of DEVELOPER IMPROVEMENTS. 9 1.18DEVELOPER DEFAULT. "DEVELOPER DEFAULT" means and includes, jointly and severally, any of the following or any combination thereof: a.)failure by the DEVELOPER to timely pay the CITY any money required to be paid under the DEVELOPMENT CONTRACT; b.)failure by the DEVELOPER to timely construct the DEVELOPER IMPROVEMENTS according to the DEVELOPMENT PLANS and the CITY standards and specifications; c.)failure by the DEVELOPER to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this DEVELOPMENT CONTRACT; d.) breach of the DEVELOPER WARRANTIES. 1.19FORCE MAJEURE. "FORCE MAJEURE" means acts of God, including, but not limited to floods, ice storms, blizzards, tornadoes, landslides, lightning and earthquakes (but not including reasonably anticipated weather conditions for the geographic area), riots, insurrections, war or civil disorder affecting the performance of work, blockades, power or other utility failures, and fires or explosions. 1.20DEVELOPER AND OWNER WARRANTIES. "DEVELOPER AND OWNER WARRANTIES" means that the DEVELOPER and OWNER hereby warrant and represent the following: A.AUTHORITY. DEVELOPERand OWNERhavethe right, power, legal capacity and authority to enter into and perform theirobligations under this DEVELOPMENT CONTRACT, and no approvals or consents of any persons are necessary in connection with the authority of DEVELOPER and OWNER to enter into and perform theirobligations under this DEVELOPMENT CONTRACT. B.NO DEFAULT. DEVELOPERand OWNERarenot in default under any lease, contract or agreement to which it is a party or by which it is bound which would affect performance under this DEVELOPMENT CONTRACT. DEVELOPERand OWNER are not a partiesto or bound by any mortgage, lien, lease, agreement, instrument, order, judgment or decree which would prohibit the execution or performance of this DEVELOPMENT CONTRACT by DEVELOPER and OWNER or prohibit any of the transactions provided for in this DEVELOPMENT CONTRACT. C.PRESENT COMPLIANCE WITH LAWS. DEVELOPERand OWNERhave complied with and is not in violation of applicable federal, state or local statutes, laws, and regulations including, without limitation, permits and licenses and any applicable zoning, environmental or other law, ordinance or regulation affecting the PLAT and theDEVELOPMENT PLANS and the DEVELOPER 10 IMPROVEMENTS; and DEVELOPERand OWNERarenot aware of any pending or threatened claim of any such violation. D.CONTINUING COMPLIANCE WITH LAWS. DEVELOPERand OWNER will comply with all applicable statutes, laws,codes, rulesand regulationsof all federal, state and local agenciesincluding, without limitation, permits and licenses and any applicable zoning, environmental or other law, ordinance or regulation affecting the PLAT and the DEVELOPMENT PLANS and the DEVELOPER IMPROVEMENTS. E.NO LITIGATION. There is no suit, action, arbitration or legal, administrative or other proceeding or governmental investigation pending, or threatened against or affecting DEVELOPER or the PLAT or the DEVELOPMENT PLANS or the DEVELOPER IMPROVEMENTS. DEVELOPERand OWNERarenot in default with respect to any order, writ, injunction or decree of any federal, state, local or foreign court, department, agency or instrumentality. F.FULL DISCLOSURE. None of the representatives and warranties made by DEVELOPERor OWNERor made in any exhibit hereto or memorandum or writing furnished or to be furnished by DEVELOPERor OWNERor on their behalf contains or will contain any untrue statement of material fact or omit any material fact the omission of which would be misleading. G.PLAT COMPLIANCE. To the best of DEVELOPER’s and OWNER’s knowledge, the PLAT and the DEVELOPMENT PLANS shall comply with all CITY, COUNTY, metropolitan, state and federal laws and regulations, including but not limited to subdivision ordinances, zoning ordinances and environmental regulations. H.WARRANTY ON PROPER WORK AND MATERIALS. The DEVELOPER warrants all concrete DEVELOPER IMPROVEMENTS required to be performed by it under this DEVELOPMENT CONTRACT against defective material and faulty workmanship for a period of two (2)years and all other DEVELOPER IMPROVEMENTS required to be performed by it under this DEVELOPMENT CONTRACT against defective material and faulty workmanship for a period of one (1) year after its completion and acceptance by the CITY. During the warranty period, the DEVELOPER shall be solely responsible for all costs of performing warranted repair work required by the CITY within thirty (30)days of notification. All trees, grass, and sod shall be warranted to be alive, of good quality, and disease free for one year after planting. Any replacements shall be similarly warranted for one(1)year from the time of planting. In addition, the warranty period for drainage and erosion control improvements shall be forthe applicabletwo (2)years or one (1) year depending upon whether they are constructed of concrete or other materials after completion and acceptance by the CITY; the warranty for the drainage and erosion control improvements shallalso include the obligation of the DEVELOPER to repair and correct any warranted deficiency with respect to such improvements. 11 DEVELOPER will faithfully provide uninhibited access for warranty inspections to CITY through the term of all warranties. I.OBTAINING PERMITS. The DEVELOPER shall obtain in a timely manner and pay for all required permits, licenses and approvals, and shall meet, in a timely manner, all requirements of all applicable, local, state and federal laws and regulations which must beobtained or met before the DEVELOPER IMPROVEMENTS may be lawfully constructed. J.FEE TITLE. Upon the filing of the PLAT, the OWNER owns fee title to the property made the subject of the PLAT.The OWNER is solely responsible for all costs associated withanyacquisition, transfer, defense and maintenance of title to the property. 1.21 CITY WARRANTIES. "CITY WARRANTIES” means that the CITY hereby warrants and represents as follows: A.ORGANIZATION. CITY is a municipal corporation duly incorporated and validly existing in good standing the laws of the State of Minnesota. B.AUTHORITY. CITY has the right, power, legal capacity and authority to enter into and perform its obligations under this DEVELOPMENT CONTRACT. 1.22 FORMAL NOTICE. "FORMALNOTICE" means notices given by one party to the other if in writing and if and when delivered or tendered either in person or by depositing it in the United States mail in a sealed envelope, by certified mail, return receipt requested, with postage and postal charges prepaid, addressed as follows: If to CITY: City of Fridley Attention: Director of Public Works 6431 University Avenue, N.E. Fridley, MN 55432 If toOWNER: Northern Stacks I LLC 1350 Lagoon Avenue South #920 Minneapolis MN 55408 Fridley Land LLC 1350 Lagoon Avenue South #920 Minneapolis, MN 55408 If to DEVELOPER: Northern Stacks I LLC 1350 Lagoon Avenue South #920 Minneapolis, MN 55408 12 or to such other address as the partyaddressed shall have previously designated by notice given in accordance with this Section. Notices shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the third day after mailing if mailed as provided above, provided, that a notice not given as above shall, if it is in writing, be deemed given if and when actually received by a party. 1.23 ESCROW. “ESCROW” means the following forms of security that are intended to permit the CITY to complete the DEVELOPER PUBLIC IMPROVEMENTS in the event that DEVELOPER is unable to complete them: A.Cash Deposit; B.Letter of Credit; C.Setaside Letter; or D.Any other form of security approved by the CITY. 1.24 ENGINEERING ESCROW. “ENGINEERING ESCROW” means the ESCROW component to pay the CITY for engineering inspection fees at the CITY’s standard rates charged for such tasks. ARTICLE 2 PLAT APPROVAL 2.1.PLAT APPROVAL. Subject to the terms and conditions of this DEVELOPMENT CONTRACT, the recitals above, and all other applicable City Code provisions, including Chapter 211of the City Code, the CITY hereby approves the recording of the PLAT. The DEVELOPMENT PLANS are hereby approved by the CITY. 2.2PLAT DENSITY. N/A 2.3RECORDING OF PLAT. The DEVELOPER shall record the PLAT and this DEVELOPMENT CONTRACT with the COUNTY Recorder within ten (10)days from the date of this DEVELOPMENT CONTRACT. No building permits shall be issued unless the DEVELOPER shows evidence to the CITY that the PLAT and this DEVELOPMENT CONTRACT have been recorded with the COUNTY Recorder. ARTICLE 3 CITY IMPROVEMENTS 3.1CITY IMPROVEMENTS. The CITY is not responsible for the construction of any CITY IMPROVEMENTS. ARTICLE 4 DEVELOPER IMPROVEMENTS 4.1DEVELOPER IMPROVEMENTS. The DEVELOPER shall install, at its own cost, the DEVELOPER IMPROVEMENTS in accord with the DEVELOPMENT PLANS. The DEVELOPER is responsible to provideall equipment, labor, materials, and work needed to 13 complete the DEVELOPER IMPROVEMENTS, including project management, administration, design, construction, inspection, and closeout activities to the satisfaction of the CITY.The DEVELOPER IMPROVEMENTS shall be completed by the dates shown on Exhibit C, except as completion dates are extended by subsequent written action of the DIRECTOR OF PWD. Failure of the CITY to promptly take action to enforce this DEVELOPMENT CONTRACT after expiration of time by which the DEVELOPER IMPROVEMENTS are to be completed shall not waive or release any rights of the CITY; the CITY may take action at any time thereafter, and the terms of this contract shall be deemed to be automatically extended until such time as the DEVELOPER IMPROVEMENTS are completed to the CITY's satisfaction. 4.2GROUND MATERIAL. The DEVELOPER shall insure that adequate and suitable ground material shall exist in the areas of DEVELOPER IMPROVEMENTSand shall guarantee the removal, replacement or repair of substandard or unstable material. The cost of removal, replacement or repair is the responsibility of the DEVELOPER. 4.3GRADING/DRAINAGE PLAN AND EASEMENTS. The DEVELOPER shall construct drainage facilities adequate to serve the PLAT in accord with the DEVELOPMENT PLANS. The OWNER and DEVELOPER agree to grant to the CITY all necessary easements for the preservation of the drainage system, for drainage basins, and for utility service. All such easements required by the CITY shall be on the PLAT or in writing, in recordable form, and on the standard easement form of the CITY, and on such other terms and conditions as the CITY shall determine; such easements shall be delivered to the CITY contemporaneously with execution of this DEVELOPMENT CONTRACT. The grading and drainage plan shall include building elevations, drainage swalesto be sodded, storm sewer, catch basins, erosion control structures and ponding areas necessary to conform with the overall CITY storm sewer plan,CITY Surface Water Management Plan, and plans approved by the applicable watershed management organizations or districts. The grading of the site shall be completed in conformance with the DEVELOPMENT PLANS. In the event that the DEVELOPER fails to complete the grading of the site in conformance with the DEVELOPMENT PLANS by the stipulated date, the CITY may declare the DEVELOPER in default pursuant to Article 13. 4.4PUBLIC RIGHTS-OF-WAYAND EASEMENTMAINTENANCE, ACCESS AND REPAIR. The DEVELOPER shall clear, on a daily basis, any soil, earth or debris from public rights-of-ways and easementswithin or adjacent to the PLAT resulting from the grading or building on the land within or adjacent to the PLAT by the DEVELOPER or its agents, and shall restore to the CITY's specifications any gravel base contaminated by mixing construction or excavation debris, or earth in it, and repair to the CITY's specifications any damage to right-of-way or easement improvementsresulting from the use of construction equipment. Furthermore, the DEVELOPER shall maintain reasonable access to any occupied buildings within the PLAT, including necessary street maintenance such as grading, graveling, patching and snow removal, prior to the installation and acceptance of permanent street surfacing. 4.5OCCUPANCY. No occupancy of any building in the PLAT shall occur until the public water, drainage,and sanitary sewer improvements have been installed and the parking areas for said building within the PLAT have been adequately graded and the gravel sub-base and base 14 course of bituminous for the parking areas for said building have been constructed for said building within the PLAT and such improvements have been inspected and approved by the CITY and are determined by theCITY to be available for use. 4.6DRIVEWAYS. The DEVELOPER at its expense shall construct concrete or bituminous surface driveway approach areas for the Propertyin accordance with CITY approved standards. 4.7VEGETATION. The DEVELOPER shall comply with CITY ordinances and policies related to preservation of vegetation and trees and specifically shall exercise reasonable efforts in residential areas to save mature, undiseased trees and vegetation on the subject land which do not have to be removed for the reasonable installation of buildings, streets, sidewalks, utilities or drainage improvements, construction activities related thereto, or site grading. Prior to any excavation, the DEVELOPER shall mark the trees to be saved with a red band, and protect such trees by snow fences or other suitable enclosures. All diseased trees shall be removed according to CITYrequirements. 4.8LANDSCAPING. Site landscaping shall be in accordance with the DEVELOPMENT PLANS. 4.9EROSION CONTROL. The DEVELOPER shall provide and follow a plan for erosion control and pond maintenance in accord with the Best Management Practices (BMP) as delineated in the Minnesota Stormwater Manual (Minnesota Pollution Control Agency). Such plan shall be detailed on the DEVELOPMENT PLANS and shall be subject to approval of the DIRECTOR OF PWD. The DEVELOPER shall install and maintain such erosion control structures as appear necessary under the DEVELOPMENT PLANS or become necessary subsequent thereto. The DEVELOPER shall be responsible for all damage caused as the result of grading and excavation within the PLAT including, but not limited to, restoration of existing control structures and clean-up of public right-of-way, until all lots are final graded and improvements are completed. As a portion of the erosion control plan, the DEVELOPER shall re-seed or sod any disturbed areas in accordance with the DEVELOPMENT PLANS. The CITY reserves the right to perform any necessary erosion control or restoration as required, if these requirements are not complied with after FORMAL NOTICE by the CITY as stated in Article 14, or by notice in accordancewith its ordinances. The DEVELOPER shall be financially responsible for payment for this extra work. 4.10OWNER CONSENT. OWNER consents to, agrees to and approves of the following: A.DEVELOPER’s entry upon the PLATfor construction and completion of the DEVELOPER IMPROVEMENTS AND DEVELOPER PUBLIC IMPROVEMENTS. B.DEVELOPER’sconstruction and completion of DEVELOPER IMPROVEMENTS and DEVELOPER PUBLIC IMPROVEMENTS. . C.The CITY’s exercise of any remedies contained in the DEVELOPMENT CONTRACT. 4.11ACCESS. OWNERshall and agrees to provide DEVELOPERwith continuous and 15 unrestricted access to the PLATto construct and complete DEVELOPER IMPROVEMENTS AND DEVELOPER PUBLIC IMPROVEMENTS. ARTICLE 5 PARK DEDICATION AND CONTRIBUTION REQUIREMENTS 5.1PARK CONTRIBUTION. The DEVELOPER shall comply with the park contribution requirements as defined in the City Code by meeting the obligation stated in Exhibit E. ARTICLE 6 OTHER PERMITS 6.1PERMITS. The DEVELOPER shall obtain all necessary approvals, permits and licenses from the CITY, the OTHER REGULATORY AGENCIES, the UTILITY COMPANIES, and the PRIOR EASEMENT HOLDERS. Major design requirements of any such entities shall be determined prior to completion and incorporated into the DEVELOPMENT PLANS. All costs incurred to obtain the approvals, permits and licenses, and also all fines or penalties levied by any agency due to the failure of the DEVELOPER to obtain or comply with conditions of such approvals, permits and licenses, shall be paid by the DEVELOPER. The DEVELOPER shall defend and hold the CITY harmless from any action initiated by the OTHER REGULATORY AGENCIES, the UTILITY COMPANIES and the PRIOR EASEMENT HOLDERS resulting from such failures of the DEVELOPER. ARTICLE 7 OTHER DEVELOPMENT REQUIREMENTS 7.1MISCELLANEOUS REQUIREMENTS. Any additional requirements to approval of the PLAT and DEVELOPMENT PLANS as specified by the COUNCIL are incorporated herein, as set forth in Exhibit E. ARTICLE 8 DEVELOPER PUBLIC IMPROVEMENTS 8.1APPROVAL OF CONTRACTORS AND ENGINEER. Any contractor or engineer preparing plans and specifications selected by the DEVELOPER to design, construct or install any DEVELOPER PUBLIC IMPROVEMENTS must be approved in writing by the DIRECTOR OF PWD. 8.2CONSTRUCTION. The construction, installation, materials and equipment related to DEVELOPER PUBLIC IMPROVEMENTS shall be in accord with the DEVELOPMENT PLANS. The DEVELOPER shall cause the contractors to furnish the PWD a written schedule of proposed operations, subcontractors and material suppliers, at least ten (10)days prior to commencement of construction work. The DEVELOPER shall notify the CITY in writing, coordinate and hold a pre-construction conference with all affected parties at least five (5)days prior to starting construction of any DEVELOPER PUBLIC IMPROVEMENTS. 8.3INSPECTION. DEVELOPER shall retain Braun Intertec to provide inspection 16 services. DEVELOPER shall provide the PWD with an inspection plan including personnel proposed and planned schedule of inspections. If CITY disapproves of the plan, personnel, or planned schedule of inspections, DEVELOPER shallmodify the sameand resubmit to CITY. DEVELOPER is responsible to provide for inspections in accordance with its approved inspection plan. DEVELOPER shall ensure CITY is regularly provided with a copy of all shop drawings, material bills of lading, inspection test results, reports, construction logs, meeting summaries,and any other documentation requested by the City. The CITY shall be notified of all construction progress meetings, and be provided of all construction schedules, work directives, and change orders relating to the CITY IMPROVEMENTS and DEVELOPER PUBLIC IMPROVEMENTS installed by the DEVELOPER. The PWD or its designated representativeshall periodically inspect the work installed by the DEVELOPER, its contractors, subcontractors or agents. The DEVELOPER shall notify the PWD two (2)working days prior to the commencement of the laying of utility lines, subgrade preparation, the laying of gravel base for street construction or any other improvement work which shall be subsequently buried or covered to allow the CITY an opportunity to inspect such improvement work. Upon receipt of the notice, the City shall have a reasonable time, not to be less than one (1) working days, to inspect the improvements. Failure to notify the CITY to allow it to inspect the workor failure to comply with anyprovisions of Article 8shall result in the CITY's right pursuant toArticle 15 to withhold and expend any portion of the escrow amount resulting from work being performed without the opportunity for adequate CITY inspection. 8.4FAITHFUL PERFORMANCE OF CONSTRUCTION CONTRACTS. The DEVELOPER shall fully and faithfully comply with all terms of any and all contracts entered into by the DEVELOPER for the installation and construction of all of the DEVELOPER PUBLIC IMPROVEMENTS; and the DEVELOPER shall obtain lien waivers. Within thirty (30) days after FORMAL NOTICE, the DEVELOPER agrees to repair or replace, as directed by the CITY and at the DEVELOPER's sole cost and expense, any work or materials relating to DEVELOPER PUBLIC IMPROVEMENTS that within the warranty periods of Section 1.20(H) become defective in the reasonable opinion of the CITY. 8.5CITY ACCEPTANCE. The DEVELOPER shall give FORMAL NOTICE to the CITY within ten (10)days once DEVELOPER PUBLIC IMPROVEMENTS have been completed in accord with this DEVELOPMENT CONTRACT and the ordinances, CITY standards and specifications and the DEVELOPMENT PLANS. The CITY shall then inspect the DEVELOPER PUBLIC IMPROVEMENTS and notify the DEVELOPER of any DEVELOPER PUBLIC IMPROVEMENTS that do not so conform. Upon compliance with this DEVELOPMENT CONTRACT and CITY ordinances, standards and specifications, and the DEVELOPMENT PLANS, the DEVELOPER PUBLIC IMPROVEMENTS shall become the property of the CITY upon FORMAL NOTICE of acceptance by the CITY. After acceptance, the DEVELOPER PUBLIC IMPROVEMENTS become the property of theCITY, and the DEVELOPER shall have no responsibility with respect to maintenance of the DEVELOPER PUBLIC IMPROVEMENTS except as provided in Sections 1.20(H) and 10.1 and except as provided in the Storm Water Facilities Maintenance Agreement. If the DEVELOPER PUBLIC IMPROVEMENTS do not conform, FORMAL NOTICE shall be given to the DEVELOPER of the need for repair or 17 replacement or, in its discretion, the CITY may proceed under Article 13. Upon DEVELOPER’S completion of DEVELOPER IMPROVEMENTS , CITY’S acceptance of the DEVELOPER PUBLIC IMPROVEMENTS pursuant to Article 8 of the DEVELOPMENT CONTRACT, and the expiration of all warranties related to DEVELOPER IMPROVEMENTS set forth in this DEVELOPMENT CONTRACT, the CITY shall promptly provide DEVELOPER with a resolution releasing the PLAT from the DEVELOPMENT CONTRACT and its terms and conditions, save and except from the indemnification set forth in Article 12, which shall expire three (3) years after the CITY’s acceptance of the DEVELOPER PUBLIC IMPROVEMENTS. Following the expiration of the three (3) year period, the CITY shall prepare and record a resolution releasing the PLAT from the indemnification obligation. 8.6ENGINEERING SUBMITTALS REQUIRED. The DEVELOPER shall provide the CITY with the following: 1.One (1) copyof the detailed record plan "as built" drawings of the DEVELOPER PUBLIC IMPROVEMENTS in *.tiff, *.pdf, and/orCAD format, in accord with CITY standards no later than thirty (30) days after completion and acceptance of the DEVELOPER PUBLIC IMPROVEMENTS by the CITY, unless otherwise approved in writing by the PWD. 2.Copiesof all copies of the following documents: a.approved shop drawings; b.records of all materials testing; c.bills of lading; d.final quantity tabulations,; e.affidavits of payments; f.certificates of completion; g.warranties; h.consents of sureties; i.contractor and subcontractor withholding affidavits; and j.contractor and subcontractor lien waivers. ARTICLE 9 RESPONSIBILITY FOR COSTS 9.1DEVELOPER IMPROVEMENT COSTS. The DEVELOPER shall pay for the DEVELOPER IMPROVEMENTS, including but not limited to all engineering, auditing, appraisal, legal, surveying, advertising fees associated with the DEVELOPER IMPROVEMENTS; that is, all costs of persons doing work or furnishing skills, tools, machinery or materials, or insurance premiums,equipment or supplies and all just claims for the sameto include engineering, audit, appraisals, legal, surveying, permits, advertising, etc.; and the CITY shall be under no obligation to pay the contractor, subcontractor, supplier, or consultantany sum whatsoever on account thereof, whether or not the CITY shall have approved the contract or subcontract. 18 9.2 ENFORCEMENT COSTS. The DEVELOPER shall pay the CITY for costs incurred in the enforcement of this DEVELOPMENT CONTRACT, including engineering and attorneys' fees. 9.3 TIME OF PAYMENT. The DEVELOPER shall pay all bills from the CITY within thirty (30)days after billing. Bills not paid within thirty (30)days shall bear interest at the rate of eighteenpercent 18%per year. ARTICLE 10 DEVELOPER AND OWNER WARRANTIES 10.1STATEMENT OF DEVELOPERAND OWNERWARRANTIES. The DEVELOPER hereby makes and states the DEVELOPERAND OWNERWARRANTIES. ARTICLE 11 CITY WARRANTIES 11.1STATEMENT OF CITY WARRANTIES. The CITY hereby makes and states the CITY WARRANTIES. ARTICLE 12 INDEMNIFICATION OF CITY 12.1INDEMNIFICATION OF CITY. From and after the execution of this DEVELOPMENT CONTRACT and for a period of three years after the expiration of the DEVELOPER WARRANTIES, DEVELOPER shall indemnify, defend and hold the CITY, its COUNCIL, agents, employees, attorneys and representatives harmless against and in respect of any and all claims, demands, actions, suits, proceedings, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties and attorneys' fees, that the CITY incurs of suffers, which arise out of, result from or relate to: a.)breach by the DEVELOPER of the DEVELOPER WARRANTIES; b.)failure of the DEVELOPER to timely construct the DEVELOPER IMPROVEMENTS according to the DEVELOPMENT PLANS and the CITY ordinances, standards and specifications; c.)failure by the DEVELOPER to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this DEVELOPMENT CONTRACT; d.)failure by the DEVELOPER to pay contractors, subcontractors, laborers, or materialsuppliers; e.)failure by the DEVELOPER to pay for materials; f.)approval by theCITY of the PLAT; 19 g.)approval by the CITY of the DEVELOPMENT PLANS; h.)failure to obtain the necessary permits and authorizations to construct the DEVELOPER IMPROVEMENTS; i.)construction of the DEVELOPMENT IMPROVEMENTS; j.)delays in construction of the DEVELOPER IMPROVEMENTS; k.)all costs and liabilities arising because building permits were issued prior to the completion and acceptance of the DEVELOPER IMPROVEMENTS; l.)any claims resulting from the delay in completing construction of the City trunk utility lines. ARTICLE 13 CITY REMEDIES UPON DEVELOPER DEFAULT 13.1CITY REMEDIES. If a DEVELOPER DEFAULT occurs, that is not caused by FORCE MAJEURE, the CITY shall give the DEVELOPER FORMAL NOTICE of the DEVELOPER DEFAULT and the DEVELOPER shall have ten (10)days to cure the DEVELOPER DEFAULT or such longer time as may be reasonable under the circumstances. If the DEVELOPER, after FORMAL NOTICE to it by the CITY, does not cure the DEVELOPER DEFAULT within ten (10)days or such longer time asmay be reasonable under the circumstances, then the CITY may avail itself of any remedy afforded by law and any of the following remedies: a.)the CITY may specifically enforce this DEVELOPMENT CONTRACT; b.)the CITY may suspend any work, improvement or obligation to be performed by the CITY; c.)the CITY may collect on the irrevocable letter of credit or cash deposit pursuant to Article 14hereofin the amount reasonably determined to be necessary by the DIRECTOR OF PWD to remedy the defaultand to reimburse the CITY for its attorneys’ fees and other administrative expenses, and provided partial and multiple drawings are permitted under the terms and conditions of the irrevocable letter of credit otherwise the CITY may collect on the entirety of theirrevocable letter of credit; d.)the CITY may suspend or deny building and occupancy permits for buildings within the PLAT; 20 e.)the CITY may, at its sole option, perform the work or improvements to be performed by the DEVELOPER, in which case the DEVELOPER shall within thirty (30)days after written billing by the CITY reimburse the CITY for any costs and expenses incurred by the CITY. 13.2NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event any agreement contained in this DEVELOPMENT CONTRACT is breached by the DEVELOPER and thereafter waived in writing by the CITY, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. All waivers by the CITY must be in writing. 13.3NO REMEDY EXCLUSIVE. No remedy herein conferred upon or reserved to the CITY shall be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under the DEVELOPMENT CONTRACT 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. In order to entitle the CITY to exercise any remedy reserved to it, it shall not be necessary to give notice, other than the FORMAL NOTICE. 13.4EMERGENCY. Notwithstanding the requirement contained in Section 14.1 hereof relating to FORMAL NOTICE to the DEVELOPER in case of a DEVELOPER DEFAULT and notwithstanding the requirement contained in Section 13.1 hereof relating to giving the DEVELOPER a minimum ten (10)day period to cure the DEVELOPER DEFAULT, in the event of an emergency as determined by the DIRECTOR OF PWD, resulting from the DEVELOPER DEFAULT, the CITY may perform the work or improvement to be performed by the DEVELOPER without giving any notice or FORMAL NOTICE to the DEVELOPER and without giving the DEVELOPER the minimumten (10)day period to cure the DEVELOPER DEFAULT. In such case, the DEVELOPER shall within thirty (30)days after written billing by the CITY reimburse the CITY for any and all costs incurred by the CITY. ARTICLE 14 ESCROW DEPOSIT 14.1ESCROW REQUIREMENT. Prior to release of the PLAT for recording, the DEVELOPER shall deposit with the CITY an ESCROW to the CITY for the amount stated in Exhibit F. All cost estimates shall be acceptable to the DIRECTOR OF PWD. The total ESCROW amount was calculated as shown on the attached Exhibit F. The bank and form of the ESCROW shall be subject to approval by the CITY Finance Director and CITYAttorneyand shall continue to be in full force and effect until released by the CITY. If utilized as ESCROW, theirrevocable letter of credit shall be for a term ending December 31, 2017.In the alternative, aletter of credit may be for a threeyear term provided it is automatically renewable for successive one year periods from the 21 present or any future expiration dates with a final expiration date of December 31, 2017, and further provided that anyirrevocable letter of credit states that at least sixty (60)days prior to the expiration date the bank will notify the CITYif the bank elects not to renew for an additional period. Any irrevocable letter of credit shall secure compliance by the DEVELOPER with the terms of this DEVELOPMENT CONTRACT. The CITY may draw down on anyirrevocable letter of credit or cash deposit, without any further notice than that provided in Section 13.1 relating to a DEVELOPER DEFAULT, for any of the following reasons: a.)a DEVELOPER DEFAULT; or b.)upon the CITY receiving notice that the irrevocable letter of credit will be allowed to lapse before December 31, 2017. The CITY shall use theESCROW proceedsto reimburse the CITY for its costs and to cause the DEVELOPER IMPROVEMENTS listed on Exhibit F to be constructed to the extent practicable; if the DIRECTOR OF PWD determines that such DEVELOPER IMPROVEMENTS listed on Exhibit F have been constructed and after retaining five percent (5%)of the proceeds for later distribution pursuant to Section 14.2, the remaining proceeds shall be distributed to the DEVELOPER. With CITY approval, ESCROW may be reduced pursuant to Section 14.2 from time to time as financial obligations are paid. 14.2ESCROW RELEASE. Periodically, upon the DEVELOPER's written request and upon completion bythe DEVELOPER and acceptance by the CITY of any specific DEVELOPER IMPROVEMENTS, ninety-fivepercent (95%)of that portion of the ESCROWcovering those specific completed improvements only shall be released. The final fivepercent (5%)of that portion ofthe ESCROW, for those specific completed improvements shall be held until acceptance by the CITY and expiration of the warranty period under Section 1.20 hereof; in the alternative, the DEVELOPER may post a bond satisfactory to the CITY with respect to the final fivepercent (5%). ARTICLE 15 MISCELLANEOUS 15.1CITY'SDUTIES. The terms of this DEVELOPMENT CONTRACT shall not be considered an affirmative duty upon the CITY to complete any DEVELOPMENT IMPROVEMENTS. 15.2NO THIRD PARTY RECOURSE. Third parties shall have no recourse against the CITY or the DEVELOPER under this DEVELOPMENT CONTRACT. 15.3VALIDITY. If any portion, section, subsection, sentence, clause, paragraph or phrase of this DEVELOPMENT CONTRACT is for any reason held to be invalid, such decision shall not affect the validity of the remaining portion of this DEVELOPMENT CONTRACT. 22 15.4FEDERAL AGENCIES. If the DEVELOPER requires any evidence of this DEVELOPMENT CONTRACT for the purpose of escrow requirements of the Federal Housing Administration, the Veterans Administration, or any other United States government agency, the CITY will provide same at the request of the DEVELOPER so the escrow deposit, herein provided for, may be considered a deposit in lieu of the deposit normally made with such governmental agencies to guarantee the completion of required improvements. 15.5RECORDING. The DEVELOPMENT CONTRACT and PLAT shall be recorded by the DEVELOPER with the COUNTY Registrary of Titlesand the OWNER and DEVELOPER shall provideand execute any and all documents necessary to implement the recording. 15.6BINDING AGREEMENT. The parties mutually recognize and agree that all terms and conditions of this recordable DEVELOPMENT CONTRACT shall run with the land herein described, andshall be binding upon the heirs, successors, administrators and assigns of the OWNER and DEVELOPER.This DEVELOPMENT CONTRACT shall also be binding on and apply to any title, right and interest of the OWNER in the PLATacquired by OWNER after the execution date of this DEVELOPMENT CONTRACT or after the recording date of this DEVELOPMENT CONTRACT. 15.7CONTRACT ASSIGNMENT. The DEVELOPER may not assign this DEVELOPMENT CONTRACT without the written permission of the COUNCIL. The DEVELOPER's obligationshereunder shall continue in full force and effect, even if the DEVELOPER sells one or more lots, the entire PLAT, or any part of it. 15.8AMENDMENT AND WAIVER. The parties hereto may by mutual written agreement amend this DEVELOPMENT CONTRACT in any respect. Any party hereto may extend the time for the performance of any of the obligations of another, waive any inaccuracies in representations by another contained in this DEVELOPMENT CONTRACT or in any document delivered pursuant hereto which inaccuracies would otherwise constitute a breach of this DEVELOPMENT CONTRACT, waive compliance by another with any of the covenants contained in this DEVELOPMENT CONTRACT, waive performance of any obligations by the other or waive the fulfillment of any condition that is precedent to the performance by the party so waiving of any of its obligations under this DEVELOPMENT CONTRACT. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. No waiver of any of the provisions of this DEVELOPMENT CONTRACT shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. 15.9GOVERNING LAW. This DEVELOPMENT CONTRACT shall be governed by and construed in accordance with the laws of the State of Minnesota. 15.10COUNTERPARTS. This DEVELOPMENT CONTRACT may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 15.11HEADINGS. The subject headings of the paragraphs and subparagraphs of this DEVELOPMENT CONTRACT are included for purposes of convenience only, and shall not affect 23 the construction of interpretation of any of its provisions. 15.12INCONSISTENCY. If the DEVELOPMENT PLANS are inconsistent with the words of this DEVELOPMENT CONTRACT or if the obligation imposed hereunder upon the DEVELOPER are inconsistent, then that provision or term which imposes a greater and more demanding obligation on the DEVELOPER shall prevail. 15.13ACCESS. The DEVELOPER hereby grants to 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 during the installationand through the warranty period(s) of DEVELOPER IMPROVEMENTS. ARTICLE 16 TERM 16.1TERM. The term of this DEVELOPMENT CONTRACT shallcommence upon the date the DEVELOPMENT CONTRACT has been executed by both DEVELOPER and CITY and shall continue until such time that DEVELOPER has performed and fulfilled all of its duties and obligations as set forth herein and in any amendment to this DEVELOPMENT CONTRACT. Upon DEVELOPER’S completion of DEVELOPER IMPROVEMENTS , CITY’S acceptance of the DEVELOPER PUBLIC IMPROVEMENTS pursuant to Article 8 of the DEVELOPMENT CONTRACT, and the expiration of all warranties related to DEVELOPER IMPROVEMENTS set forth in this DEVELOPMENT CONTRACT, the CITY shall promptly provide DEVELOPER with a resolution releasing the PLAT from the DEVELOPMENT CONTRACT and its terms and conditions, save and except from the indemnification set forth in Article 12, which shall expire three (3) years after the CITY’s acceptance of the DEVELOPER PUBLIC IMPROVEMENTS. Following the expiration of the three (3) year period, the CITY shall prepare and record a resolution releasing the PLAT from the indemnification obligation. [The remainder of this page has been intentionally left blank] 24 IN WITNESS WHEREOF , the parties have executed thisDEVELOPMENT CONTRACT. CITY OF FRIDLEY By: Scott Lund Its Mayor Walter Wysopal Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) On this _____day of _______________, 2014, before me a Notary Public within and for said County, personally appeared Scott Lundand Walter Wysopalto me personally known, who being each by me duly sworn, each did say that they are respectively the Mayor and City Manager of the City of Fridley, the municipality named in the foregoing instrument, and that the seal affixed to said instrument was signed and sealed in behalf of said municipality by authority of its City Council and said Mayor and City Manageracknowledged said instrument to be the free act and deed of said municipality. Notary Public 25 DEVELOPER By: Its STATE OF MINNESOTA ) ) ss. COUNTY OF ____________ ) On this _____ day of ________________, 2014, before me a Notary Public within and for said County, personally appeared______________________, to me personally known, who being by me duly sworn, did say that he is the ____________________of Northern Stacks I LLC, a Minnesota limited liability company, and that the foregoing instrument was executed on behalfof Northern Stacks ILLC by authority of the Boards of Governors of Northern Stacks I LLC. Notary Public OWNER By: Its STATE OF MINNESOTA ) ) ss. COUNTY OF ____________ ) On this _____ day of ________________, 2014, before me a Notary Public within and for said County, personally appeared______________________, to me personally known, who being by me duly sworn, did say that he is the ____________________ of Fridley LandLLC, a Minnesota limited liability company, and that the foregoing instrument was executed on behalf of Fridley Land LLC by authority of the Boards of Governors of Fridley Land LLC. Notary Public 26 OWNER By: Its STATE OF MINNESOTA ) ) ss. COUNTY OF ____________ ) On this _____ day of ________________, 2014, before me a Notary Public within and for said County, personally appeared______________________, to me personally known, who being by me duly sworn, did say that he is the ____________________of Northern Stacks I LLC,a Minnesota limited liability company, and that the foregoing instrument was executed on behalf of Northern Stacks I LLCby authority of the Boards of Governors of Northern Stacks I LLC. Notary Public THIS INSTRUMENT DRAFTED BY:AFTER RECORDING, PLEASE RETURN THIS INSTRUMENT TO: Darcy M. Erickson LeVander, Gillen, & Miller, P.A.Darcy M. Erickson 633 South Concord Street, Suite 400LeVander, Gillen & Miller, P.A. South St. Paul, MN 55075633 South Concord Street, Suite 400 (651) 451-1831South St. Paul, MN 55075 (651) 451-1831 27 EXHIBIT A LEGAL DESCRIPTION OFTHE PORTION OF THE PLAT OFNORTHERN STACKSENCUMBERED BY THE DEVELOPMENT CONTRACT Real property in AnokaCounty, State of Minnesota, described as: Lots 1 and 2, Block 1, Northern Stacks 28 EXHIBIT B LIST OF DEVELOPMENT PLANS DATE OF PLAN PREPARED PLAN PREPARATION BY 1.)Existing Conditions2/14/14*Westwood Page 2 of 17Professional Services, Inc. 2.)Preliminary Plat2/14/14*Westwood Page 3 of 17Professional Services, Inc. 3.)Final Plat Cover2/14/14*Westwood Page 4 of 17Professional Services, Inc. 4.)Final Plat2/14/14*Westwood Page 5 of 17Professional Services, Inc. 5.)Removal Plan2/14/14*Westwood Page 6 of 17Professional Services, Inc. 6.)Site Plan2/14/14**Westwood Page 7 of 17Professional Services, Inc. 7.)Grading Plan2/14/14***Westwood Page 8 of 17Professional Services, Inc. 8.)Details2/14/14*Westwood Page 9 of 17Professional Services, Inc. 9.)City Details2/14/14*Westwood Page 10 of 17 Professional Services, Inc. 29 10.)Utility Plan2/14/14****Westwood Page 11 of 17 Professional Services, Inc. 11.)Landscape Plan2/14/14*Westwood Page 12 of 17Professional Services, Inc. 12.)Landscape Details2/14/14*Westwood Page 13 of 17Professional Services, Inc. 13.)Landscape Details2/14/14*Westwood Page 14 of 17Professional Services, Inc. 14.)Landscape Details2/14/14*Westwood Page 15 of 17 Professional Services, Inc. 15.)Street Plan and Profile2/14/14*^Westwood Page 16 of 17 Professional Services, Inc. 16.)Watermain Extension2/14/14*^^Westwood Page 17 of 17 Professional Services, Inc. -30- 17.)Road Improvement Plans for Westwood CSAH 1 (East River Road Professional Improvements) Services, Inc. # a.Overall Existing Conditions 8/12/14 & Removals, Page 2 of 24 # b.North Existing Conditions 8/12/14 & Removals, Page 3 of 24 # c.South Existing Conditions 8/12/14 & Removals, Page 4 of 24 # d.Overall Proposed Layout, 8/12/14 Page 5 of 24 # e.North Proposed Layout, 8/12/14 Page 6 of 24 # f.South Proposed Layout, 8/12/14 Page 7 of 24 # g.Type C&D Signs, Page 8 of 8/12/14 24 # h.Overall Signage Layout, 8/12/14 Page 9 of 24 # i.North Signage Layout, Page 8/12/14 10 of 24 # j.South Signage Layout, Page 8/12/14 11 of 24 # k.Type C&D Sign Structural 8/12/14 Details –Page 1 of 2, Page 12 of 24 # l.Type C&D Sign Structural 8/12/14 Details –Page 1 of 2, Page 13 of 24 # m.Overall Grading, Utilities, 8/12/14 and Erosion Control Plan, Page 14 of 24 # n.North Grading, Utilities, 8/12/14 -31- and Erosion Control Plan, Page 15 of 24 # o.South Grading, Utilities, 8/12/14 and Erosion Control Plan, f 18.)Construction Plan for Traffic 10/27/14^Westwood Control Signal Systems, Interconnect Professional and ADA Improvements at the Services, Inc. Intersection of: Co. Rd 1 (East River Road) at Northern Stacks Ct., Fridley MN, Anoka County and Removal at the Intersection of: Co. Rd. 1 (East River Rd) at Southwest Egress Driveway of Northern Stacks, Fridley MN, Anoka County a.Statement of Estimated Quantities, Page 2 of 18 10/27/14^ b.Pole Mount Detail, Page 3 of 18 10/27/14^ c.Equipment Pad Layout (Type SSB Service Cabinet) 10/27/14^ Co. Hwy 1 and Northern Stacks Ct. in Fridley, Anoka County, Page 4 of 18 d.Service Cabinet Details Co. Hwy 1 and Northern Stacks 10/27/14^ Ct. in Fridley, Anoka County, Page 5 of 18 e.Loop Detector Detail, Page 6 of 18 10/27/14^ f.Pedestrian Curb Ramp Details, Section C-CStandard Approved Parallel/Depressed Corner, 4/10/13^ Page 7 of 18 g.Pedestrian Curb Ramp Details, Section D-D Curb Standard Approved for Directional Ramps, Page 4/10/13^ 8 of 18 h.Pedestrian Curb Ramp Details, PavementStandard Approved Treatment Options in Front 4/10/13^ -32- of Curb & Gutter For Use on Curb Ramp Retrofits, Page 9 of 18 i.Pedestrian Curb Ramp Details, Approach Nose Standard Approved Detail for Downstream Side 4/10/13^ of Traffic, Page 10 of 18 j.Pedestrian Curb Ramp Standard Approved Details, Concrete Walk 4/10/13^ Edges Adjacent to Concrete Structures, Page 11 of 18 k.Intersection “A” Layout Traffic Control Signal Standard Approved System Co. Hwy 1 and 4/10/13^ Northern Stacks Ct. in Fridley, Anoka County, Page 12of 1810/27/14^ l.Intersection Layout Traffic Control Signal System Co. Hwy 1 and Northern Stacks Ct. in Fridley, Anoka County, Page 13 of 18 10/27/14^ m.Pavement Markings Layout/Detail and Type “D” Signs Details Co. Hwy 1 and Northern Stacks Ct. in Fridley, Anoka County, Page 14 of 18 10/27/14^ n.Interconnection Layout Traffic Control Signal System Co. Hwy 1 and Northern Stacks Ct. in Fridley, Anoka County, Page 15 of 18 10/27/14^ o.Intersection “A” Existing Utilities Layout Traffic Control Signal System Co. -33- Hwy 1 and Northern Stacks Ct. in Fridley, Anoka County, Page 16 of 18 10/27/14^ p.Intersection “B” Layout Traffic Control Signal System Co. Hwy 1 and Northern Stacks Ct. in Fridley, Anoka County, Page 17 of 18 10/27/14^ q.Intersection “C” Layout Traffic Control Signal System Co. Hwy 1 and Northern Stacks Ct. in Fridley, Anoka County, Page 18 of 18 *Revised on March 12, 2014, March 28, 2014, June 27, 2014, July 16, 2014 and August 20, 2014 **Revised on March 12, 2014, March 28, 2014, June 27, 2014, July 16, 2014, August 20, 2014 and October 2, 2014 ***Revised on March 12, 2014, March 28, 2014, June 27, 2014, July 1, 2014, July 16, 2014, August 20, 2014 and September 17, 2014 ****Revised on March 12, 2014, March 28, 2014, June 27, 2014, July 16, 2014, August 20, 2014 and September 17, 2014 *^Revised on March 12, 2014, March 28, 2014, June 27, 2014, July 16, 2014, August 20, 2014 and October 17, 2014 *^^Revised on August 20, 2014 and September 17, 2014 #Revised on September 30, 2014 and October 29, 2014and including any further revisions subsequent to the parties’ execution of this Development Contract. ^including any further revisions subsequent to the parties’ execution of this Development Contract.. -34- EXHIBIT C DEVELOPER IMPROVEMENTS The items checked with an "X" below are the DEVELOPER IMPROVEMENTS. The items checked with "PUBLIC" below are those DEVELOPER IMPROVEMENTS that are DEVELOPER-PUBLIC IMPROVEMENTS. CHECKED COMPLETION DATE IMPROVEMENT X General site erosion control X Completion of improvements identified in Construction Plansfor Site, Grading, Utilities and Landscaping PUBLICCompletion of improvements in Road Improvement Plans PUBLICCompletion of improvements identified in Construction Plan for Traffic Control Signal Systems, Interconnect and ADA Improvements at the Intersection of Co. Rd. 1 (East River Rd.) at Northern Stacks Ct., Fridley MN, Anoka County and Removal at the Intersection of: Co. Rd. 1 (East River Rd.) at Southwest Egress Driveway of Northern Stacks, Fridley MN, Anoka County X Grading and drainage 35 PUBLICWatermain Extension PUBLICStorm water facilities (infiltration basin and ponds) PUBLICNorthern Stacks Court X Landscaping* *Landscaping includes turf establishment and turf growth. Mere seeding is insufficient. 36 EXHIBIT D CITY IMPROVEMENTS The CITY is not responsible for construction of any CITY IMPROVEMENT under this DEVELOPMENT CONTRACT. 37 EXHIBIT E MISCELLANEOUS REQUIREMENTS AND CONDITIONS IMPOSED BY THE CITY CONDITIONS TO BE SATISFIED BEFORE CITY RELEASES THE PLAT TO BE 1.) RECORDED. Before the CITY allows the PLAT to be recorded, all the following conditions must be satisfied: a.)DEVELOPER and OWNER must execute this Development Contract; b.) OWNERand CITY must execute a Storm Water Maintenance Agreement whereby the OWNER shall be responsible for maintenance of specified DEVELOPER IMPROVEMENTS, including the storm water collection and management system; c.) OWNERand CITY must execute an Environmental IndemnificationAgreement covering all CITY rights-of-way and easements within the PLATof NORTHERN STACKS; d.) DEVELOPER shall provide and record with COUNTY all maintenance and utility easements that may be necessary and not included in the PLAT to allow CITY access to and maintenance of utilities and storm water collection and management systems; e.)DEVELOPER shall provide traffic impact and access agreements to the CITY that are identified by the PWD as necessary; d.)OWNER satisfies all pending utility bills and special assessments associated with the property. BUILDING PERMITS. 2.)No building permits may be obtained other than those previously issued as of the date of this Agreement for a Bulk Distribution building until: a.)All the conditions listed in Paragraph 1 of this Exhibit E are satisfied. b.)DEVELOPER and OWNER must submit evidence that the following documents have been recorded: 1. PLAT of NORTHERN STACKS; 2. DEVELOPMENT CONTRACT 3. ENVIRONMENTAL INDEMNIFICATION AGREEMENT 4. STORM WATER MANANGEMENT AGREEMENT 38 CERTIFICATES OF OCCUPANCY. 3.)Prior to the issuance of thecertificate of no later thanDecember 31, 2015 occupancy, and in any event,,the following conditions must be satisfied: a.)All the conditions listed in Paragraphs 1 and 2 of this Exhibit E must be satisfied. b.)All landscaping that is associated with the PLATshall be completed. c.)Public water, drainage and sanitary sewer improvements have been installed and have been inspected, approved and determined by the CITY to be available for use. d.)All parking areas for buildings within the PLAT have been adequately graded and the gravel sub-base and base course of bituminous for the parking areas for said buildings have been constructed for said buildings within the PLAT and have been inspected, approved and determined by the CITY to be available for use. CLEAN UP OF CONSTRUCTION DEBRIS ON STREETS AND ADJOINING 4.) PROPERTY. The escrow amount stated on Exhibit F shall include an appropriate amount as determined by the Director of PWDto assure that the DEVELOPER removes any construction debris from streets adjoining the PLAT and from private properties that adjoin the PLAT. During the construction and other improvements within the PLAT, the DEVELOPER is responsible for removing any construction debris (including roofing materials, paper wrappings, construction material and other waste products resulting from construction) that may be blown from the construction site into adjoining private properties or into CITY streets or that may fall from delivery trucks onto adjoining private properties or CITY streets. Further, during construction, the DEVELOPER must clear the CITY streets of any dirt or other earthen material that may fall onto the CITY streets from the delivery trucks that are being used in the excavation and grading of the site. PARKING LOT AND BUILDING LIGHTING. 5.)The parking lot and building lighting will be either a shoe-box style or down cast lighting, such that the bulb is not visible from the property lines. PARK DEDICATION 6.). Park dedication shall be waived in consideration of prior park dedications made in conjunction with theproperty within the PLAT. CONSENT REQUIREMENTS 7.). DEVELOPER and OWNER agree that the following elements of development within the PLAT shall not be removed or changed from the DEVELOPMENT PLANS without first obtaining the following consents: Building location a.) Consent required by COUNCIL Landscaping b.) Consent required by Planning Department Location of Utilities c.) Consent required by PWD 39 Parking Areas d.) Consent required by COUNCIL S-2 DISTRICTZONING ACKNOLWLEDGEMENT 8.) . Property within the PLAT is subject to the approval of master plans and S-2 District zoning and the development on the property must be in substantial conformance to the master plans and S-2 Zoning District. STREET LIGHTING 9.). The street lighting along the private driveways and within the parking lots will be private. The OWNER is responsible for all costs of the installation, maintenance, replacement and energy costs. The street lighting plans shall be approved by the CITY prior to installation. 40 EXHIBIT F ESCROW CALCULATION DEVELOPER IMPROVEMENTS AND DEVELOPER LESS PUBLIC COSTIMPROVEMENTSESCROW IMPROVEMENTSESTIMATECOMPLETEDAMOUNT Site Grading, Drainage and 1.)Erosion Control$ 140,000$133,000 $7,000 Public Street Construction (including turn 2.)lanes)100,50050,500 50,000 Traffic Signal Construction and retrofit 3.)0* 0 0 4.)Walks and Trails2,500 02,500 Sanitary Sewer 5.)Collection15,00014,0001,000 6.)Water Distribution190,000180,000 10,000 Storm Water Facilities 7.)(including basins)70,00066,500 3,500 8.)Landscaping 12,0006,000 6,000 9.)Construction debris 1,5001,500 0 41 clean-up ENGINEERING 10.)ESCROW76,74076,7400 Subtotal:$ 80,000 MULTIPLIEDBY:X 1.25 EQUALS:$ 100,000 ESCROW AMOUNT:$ 100,000 * Traffic Signal Under HRA Agreement 42 ResolutionNo.2014-83 STORM WATER MAINTENANCE AGREEMENT THIS AGREEMENT made and entered into this ___day of __________________, 2014by and between Northern Stacks I, LLC, a Minnesota limited liability company, hereinafter referred to as "Owner" of the below described property; and the City of Fridley, a Minnesota municipal corporation, hereinafter referred to as "City". ARTICLE 1 DEFINITIONS 1.1City. City shall mean the City of Fridley, a Minnesota municipal corporation and its successors and assigns. 1.2Owner. Northern Stacks I LLC, a Minnesota limited liability company and its successors and assigns. 1.3Real Property. Real Property means the following real property located in Anoka County, Minnesota: Lot 1, Block 1, Northern Stacks 1.4Storm Sewer System. Storm Sewer System means each and all of the following, individually and collectively: existing or future storm water pipes, conduits, culverts, ditches, storm water ponds, reservoirs, catch basins, manholes, structures, devices, components and appurtenances lying under, upon or within the Real Property used to treat storm water and accommodate the flow of area storm water run-off. ARTICLE 2 RECITALS Recital No. 1. The Owner owns the Real Property. Recital No. 2. The Real Property is being improved with large industrial warehouse buildings. Recital No. 3. The Storm Sewer System will be constructed under, over,upon and within the Real Property. Recital No. 4. The City is willing to allow the plat of Northern Stacks to be recorded if Owner complies with the requirements contained in Exhibit E of the Development Contract, of even date herewith between the City and Owner, and if Owner executes this Storm Water Maintenance Agreement. Recital No. 5. The City has required the Owner to provide, furnish, construct, install and maintain the Storm Sewer System to treat storm water and accommodate the rate of flow of area run-off, upon, over, under, through and within the Real Property. Recital No. 6. The Owner agrees to furnish, construct, install and maintain the Storm Sewer System to the approval of the City upon, over, under, upon, through and within the Real Property and do all related grading, slope work and restoration. Recital No. 7. By this Agreement the parties seek to: a.impose upon the Owner the responsibility of maintaining the Storm Sewer System, notwithstanding the fact that the Storm Sewer System exists within easements dedicated or granted to the City and the public; and b.provide a mechanismwhere the City may charge-back to the Owner any maintenance work that the City performs with respect to the Storm Sewer System in the event the Owner fails to perform its obligations to maintain the Storm Sewer System. ARTICLE 3 RESPONSIBILITY FOR MAINTENANCE 3.1Construction and Maintenance. a.At its sole cost and expense, the Owner agrees to construct, operate, repair, maintain and manage the Storm Sewer System upon, over, under, through and within the Real Property, while conforming to City, Mississippi Watershed Management Organization, and Minnesota Pollution Controlstandards for the purpose of receiving, retaining, treating and transporting all storm sewer water which may be collected within the Storm Sewer System. The City shall not under any circumstances be responsible for the on- going physical performance of any repairs, changes or alterations whatsoever to the Storm Sewer System and the City shall not be liable for the cost thereof. 2 Specifically, the Owner agrees, at its sole cost and expense and at no cost to the City, to regularly: 1.Maintain and clean all portions of the Storm Sewer System including but not limited to catch basins, manholes, piping, stormwater basins, structural storm water treatment devices, outlet structures and any other associated portion or component of the Storm Sewer System serving the Real Property and prior to and at its point of connection to the City Storm Sewer System. 2.Repair or replace any deficient portion or component of the Storm Sewer System. 3.Remove andproperly dispose of litter and debris collected by the Storm Sewer System on an annual basis or more often if required by the manufacturer’s recommendations for any structures, components, or devices part of the Storm Sewer System. Owner shall send an annual report of this activity to the City. 3.2Standard of Maintenance. The standard of maintenance by the Owner shall comply with a reasonable standard of care and conform to generally accepted standards and the same standards that the City’s Public Works Director utilizes for storm sewer systems that the City, Mississippi Watershed Management Organization, and Minnesota Pollution Control maintains, as those standards are from time to time amended. If trees or other vegetation located in the areas of the Storm Sewer System become diseased or die and if in the judgment of the City’s Director of Public Works the dead or diseased trees or vegetation adversely affect the storm water storage capacity or the flow of the storm water, then the Owner, upon the written request of the City, shall remove the diseased or dead trees and vegetation within thirty (30) days after the City’s written request. 3.3Notice and Cure Period. In the event that the City’s Public Works Director (“PWD”) determines that the Ownerhas failed to fully perform its obligations set forth in Section 3.1 of this Agreement or fails to perform them consistent with the Standard of Maintenance set forth in Section 3.2, the City shall give written notice pursuant to Section 3.6 to the Owner detailing the failure of compliance with Sections 3.1 and 3.2. If within fifteen (15) days after transmittal of this notice, Owner has failed to cure the deficiency or deficiencies identified in the notice, the City may without further notice take any steps which it deems reasonably necessary in order to correct the deficiency or deficiencies. The Owner agrees to then reimburse the City within thirty (30) days of receipt of invoice for all costs incurred, including reasonable administrative overhead, by the City in correcting the deficiency. If this invoice is not paid within thirty (30) days of receipt, then Owner agrees that the City may certify or assess the cost against the Owner's property pursuant to Section 3.4 Notwithstanding the requirement contained in this Section relating to written notice and opportunity of the Owner to comply with the standard of maintenance, in the event of an emergency as determined by the PWD, the City may perform the 3 work to be performed by the Owner without giving any notice to the Owner and without giving the Owner fifteen (15) days to comply. If the City performs emergency service work, the Owner shall be obligated to repay the City the costs incurred to perform the emergency service work, and the City shall follow those procedures set forth in Sections 3.3 and 3.4 with respect to the billing, collection and/or tax certification of such costs. 3.4City Costs: Certification of Costs Payable With Taxes; Special Assessments. If payment is not made, the City may certify to Anoka County the amounts due as payable with the real estate taxes for the Real Property in the next calendar year; such certifications may be made under Minnesota Statutes, Chapter 444 in a manner similar to certifications for unpaid utility bills. Owner waives any and all procedural and substantive objections to the imposition of such usual and customary charges on the Real Property. Further, as an alternate means of collection, if the written billing is not paid by the Owner, the City, without notice and without hearing, may specially assess the Real Property for the costs and expenses incurred by the City. The Owner hereby waives any and all procedural and substantive objections to special assessments for the maintenance costs including, but not limited to, notice and hearing requirements and any claims that the charges or special assessments exceed the benefit to the Real Property. The Owner waives any appeal rights otherwise available pursuant to Minnesota Statute § 429.081. The Owner acknowledges and agrees that the benefit from the performance of maintenance tasks by the City and performance of maintenance tasks by the City to ensure compliance with the maintenance standards equals or exceeds the amount of the charges and assessments for the maintenance costs that are being imposed hereunder upon the Real Property. 3.5Obligation For Maintenance Notwithstanding Public Easement. The Owner agrees that its obligations relating to maintenance of the Storm Sewer System exists notwithstanding the fact that some or all of the Storm Sewer System is located in public easements. The City hereby grants to the Owner a temporary right and license to enter the Real Propertyfor the purpose of performing the maintenance obligations relating to the Storm Sewer System for the duration of the performance of the maintenance. 3.6.Notices. Any notices required under this Agreement shall be sent by certified mail, return receipt requested, or by personal service at the following address: If to City: City of Fridley Attn: City Manager 6341 University Avenue NE Fridley, MN 55432 4 If to Owner: Northern Stacks I LLC Attn: Manager 1350 Lagoon Avenue South #920 Minneapolis MN 55408 In the event that a party to this Agreement transfers its interest in the Real Property, the other party may fulfill its notice requirements under this Agreement by providing said notice to the party of record on file at the Anoka County Assessor’s office. 3.7Indemnification. The Owner agrees to defend, indemnify and hold harmless the City from any action and against any damages, costs and expenses, including reasonable attorney’s fees, which the City may sustain as a result of the Owner’s construction and maintenance of the Storm Sewer System located on the Real Property. ARTICLE 4 MISCELLANEOUS 4.1Binding Agreement. The parties mutually recognize and agree that all terms and conditions of this recordable Agreement shall run with the Real Property, and shall be binding upon the parties and the successors and assigns of the parties. This Agreement shall also be binding on and apply to any title, right and interest of Owner in the Real Property acquired by Owner after the execution date of this Agreement or after the recording date of this Agreement. 4.2Filing with Anoka County. Owner shall record a fully executed copy of this Agreement with the Anoka County. 4.3Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands this ___ day of ___________________, 2014. [The remainder of this page is intentionally left blank.] 5 NORTHERN STACKS ILLC By:______________________________ Its: ______________________________ STATE OF MINNESOTA) ) ss. COUNTY OF ____________) On this _____ day of ________________, 2014, before me a Notary Public within and for said County, personally appeared______________________, to me personally known, who being by me duly sworn, did say that he is the ________________________ of Northern Stacks I LLC, a Minnesota limited liability company, and that the foregoing instrument was executed on behalf of Northern Stacks I LLC by authority of the Boards of Governors of Northern StacksI LLC. Notary Public 6 CITY OF FRIDLEY By:______________________________ Its: Mayor By:______________________________ Its: City Manager STATE OF MINNESOTA) ) ss. COUNTY OF ANOKA) On this _____ day of _______________, 2014, before me a Notary Public within and for said County, personally appeared Scott Lund and Walter Wysopal to me personally known, who being each by me duly sworn, each did say that they are respectively the Mayor and the City Manager of the City of Fridley, the Minnesota municipal corporation named in the foregoing instrument, and that the seal affixed to said instrument was signed and sealed in behalf of said municipal corporation by authority of its City Council and said Mayor and City Manager acknowledged said instrument to be the free act and deed of said municipal corporation. Notary Public After Recording,Please Return This This Instrument Was Drafted By:Instrument To: Darcy M. EricksonDarcy M. Erickson LeVander, Gillen & Miller, P.A.LeVander, Gillen & Miller, P.A. 633 South Concord Street633 South Concord Street Suite 400Suite 400 South St. Paul, MN 55075South St. Paul, MN 55075 (651) 451-1831(651) 451-1831 7 ResolutionNo.2013-83 STORM WATER MAINTENANCE AGREEMENT made and entered into this ___day of __________________, THIS AGREEMENT 2014by and between Fridley Land, LLC, a Minnesota limited liability company, hereinafter referred to as "Owner" of the below described property; and the City of Fridley, a Minnesota municipal corporation, hereinafter referred to as "City". ARTICLE 1 DEFINITIONS City shall mean the City of Fridley, a Minnesota municipal corpo 1.1City. successors and assigns. Fridley Land, LLC, a Minnesota limited liability company and its successors 1.2Owner. and assigns. Real Property means the following real property located in Anoka 1.3Real Property. County, Minnesota: Lot 2, Block 1, Northern Stacks Storm Sewer System means each and all of the following, 1.4Storm Sewer System. individually and collectively: existing or future storm water pipes, conduits, culverts, ditches, storm water ponds, reservoirs, catch basins, manholes, structures, devices, components and appurtenances lying under, upon or within the Real Property used to treat storm water and accommodate the flow of area storm water run-off. ARTICLE 2 RECITALS The Owner owns the Real Property. Recital No. 1. The Real Property is being improved with large industrial warehouse buildings. Recital No. 2. The Storm Sewer System will be constructed under, over,upon and within the Recital No. 3. Real Property. The City is willing to allow the plat of Northern Stacks to b Recital No. 4. complies with the requirements contained in Exhibit E of the Development Contract, of even date herewith between the City and Owner, and if Owner executes Maintenance Agreement. The City has required the Owner to provide, furnish, construct, install and Recital No. 5. maintain the Storm Sewer System to treat storm water and accommo run-off, upon, over, under, through and within the Real Property The Owner agrees to furnish, construct, install and maintain the Recital No. 6. System to the approval of the City upon, over, under, upon, through and within the Real Property and do all related grading, slope work and restoration. By this Agreement the parties seek to: Recital No. 7. a.impose upon the Owner the responsibility of maintaining the Storm Sewer System, notwithstanding the fact that the Storm Sewer System exists with or granted to the City and the public; and b.provide a mechanismwhere the City may charge-back to the Owner work that the City performs with respect to the Storm Sewer Syst Owner fails to perform its obligations to maintain the Storm Sew ARTICLE 3 RESPONSIBILITY FOR MAINTENANCE 3.1Construction and Maintenance. a.At its sole cost and expense, the Owner agrees to construct, operate, repair, maintain and manage the Storm Sewer System upon, over, under, through and within the Real Property, while conforming to City, Mississippi Watershed Management Organization, and Minnesota Pollution Controlstandards for the purpose of receiving, retaining, treating and transporting all storm sewer water which may be col Sewer System. The City shall not under any circumstances be responsible for the on- going physical performance of any repairs, changes or alterations whatsoever to the Storm Sewer System and the City shall not be liable for the cost 2 Specifically, the Owner agrees, at its sole cost and expense and regularly: 1.Maintain and clean all portions of the Storm Sewer System including but not limited to catch basins, manholes, piping, stormwaterbasins, structural storm water treatment devices, outlet structures and any other associated portion or component of the Storm Sewer System serving the Real Property and prior to and at its point of connection to the City Storm Sewer System. 2.Repair or replace any deficient portion or component of the Storm Sewer System. 3.Remove and properly dispose of litter and debris collected by Sewer System on an annual basis or more often if required by the manufacturer’s recommendations for any structures, components, or devices part of the Storm Sewer System. Owner shall send an annual report of this activity to the City. The standard of maintenance by the Owner shall comply 3.2Standard of Maintenance. with a reasonable standard of care and conform to generally accepted standards and the same standards that the City’s Public Works Director utilizes for sto Mississippi Watershed Management Organization, and Minnesota Pollution Control maintains, as those standards are from time to time amended. If trees or o areas of the Storm Sewer System become diseased or die and if in Director of Public Works the dead or diseased trees or vegetatio waterstorage capacity or the flow of the storm water, then the O of the City, shall remove the diseased or dead trees and vegetation within thirty (30) days after the City’s written request. In the event that the City’s Public Works Director (“PWD”) 3.3Notice and Cure Period. determines that the Owner has failed to fully perform its obliga this Agreement or fails to perform them consistent with the Stan Section 3.2, the City shall give written notice pursuant to Section 3.6 to the Owner detailing the failure of compliance with Sections 3.1 and 3.2. If within fifteen (15) days after transmittal of this notice, Owner has failed to cure the deficiency or deficien City may without further notice take any steps which it deems reasonably necessary in order to correct the deficiency or deficiencies. The Owner agrees to then reimburse the City within thirty (30) days of receipt of invoice for all costs incurred, including reasonable administrative overhead, by the City in correcting the deficiency. If this invoice is not paid within thirty (30) days of receipt, then Owner agrees that the City may certify or Owner's property pursuant to Section 3.4 Notwithstanding the requirement contained in this Section relating to written notice and opportunity of the Owner to comply with the standard of maintenance, in the event of an emergency as determined by the P 3 work to be performed by the Owner without giving any notice to the Owner and without giving the Owner fifteen (15) days to comply. If the City performs emergency service work, the Owner shall be obligated to repay the City the costsincurred to work, and the City shall follow those procedures set forth in Sections 3.3 and 3.4 with respect to the billing, collection and/or tax certification of such costs. If 3.4City Costs: Certification of Costs PayableWith Taxes; Special Assessments. payment is not made, the City may certify to Anoka County the am real estate taxes for the Real Property in the next calendar year; such certifications may be made under Minnesota Statutes,Chapter 444 in a manner similar to certifications for unpaid utility bills. Owner waives any and all procedural and substantive obje usual and customary charges on the Real Property. Further, as an alternate means of collection, if the written billing is not paid by the Owner, the City, without notice and without hearing, may specially assess the Real Property for the costs and expenses incurred by the City. The Owner hereby waives any and all procedural and substantive objections to special assessments for the maintenance costs including, but not limited to, notice and hearing requirements and any claims that assessments exceed the benefit to the Real Property. The Owner otherwise available pursuant to Minnesota Statute § 429.081. The Owner acknowledges and agrees that the benefit from the performance of maintenance tasks by the City and performance of maintenance tasks by the City to ensure compliance with the m exceeds the amount of the charges and assessments for the maintenance costs that are being imposed hereunder upon the Real Property. The Owner agrees 3.5Obligation For Maintenance Notwithstanding Public Easement. that its obligations relating to maintenance of the Storm Sewer fact that some or all of the Storm Sewer System is located in public easements. The City hereby grants to the Owner a temporary right and license to enter the R performing the maintenance obligations relating to the Storm Sew the performance of the maintenance. Any notices required under this Agreement shall be sent by certified mail, 3.6.Notices. return receipt requested, or by personal service at the following address: City of Fridley If to City: Attn: City Manager 6341 University Avenue NE Fridley, MN 55432 4 Fridley Land LLC If to Owner: Attn: Manager 1350 Lagoon Avenue South #920 Minneapolis MN 55408 In the event that a party to this Agreement transfers its intere may fulfill its notice requirements under this Agreement by providing said notice to the party of record on file at the Anoka County Assessor’s office. The Owner agrees to defend, indemnify and hold harmless the City 3.7Indemnification. from any action and against any damages, costs and expenses, including reasonable attorney’s fees, which the City may sustain as a result of the Owner’s cons Storm Sewer System located on the Real Property. ARTICLE 4 MISCELLANEOUS The parties mutually recognize and agree that all terms and 4.1Binding Agreement. conditions of this recordable Agreement shall run withthe Real Property, and shall be binding upon the parties and the successors and assigns of the parties. This Agreement shall also be binding on and apply to any title, right and interest of Owner in the Real executiondate of this Agreement or after the recording date of t Owner shall record a fully executed copy of this Agreement 4.2Filing with Anoka County. with the Anoka County. This Agreement may be executed in any number of counterparts, ea 4.3Counterparts. which shall be deemed an original but all of which shall constitute one and the same instrument. the parties hereto have hereunto set their hands this ___ day IN WITNESS WHEREOF, of ___________________, 2014. [The remainder of this page is intentionally left blank.] 5 FRIDLEY LAND LLC By:______________________________ Its: ______________________________ STATE OF MINNESOTA) ) ss. COUNTY OF ____________) On this _____ day of ________________, 2014, before me a Notary for said County, personally appeared______________________, to me personally known, who being by me duly sworn, did say that he is the _________________ LLC, a Minnesota limited liability company, and that the foregoi behalf of Fridley Land LLC by authority of the Boards of Governors of Fridley Land LLC. Notary Public 6 CITY OF FRIDLEY By:______________________________ Its: Mayor By:______________________________ Its: City Manager STATE OF MINNESOTA) ) ss. COUNTY OF ANOKA) On this _____ day of _______________, 2014, before me a Notary P said County, personally appeared Scott Lund and Walter Wysopal to mepersonally known, who being each by me duly sworn, each did say that they are respecti Manager of the City of Fridley, the Minnesota municipal corporation named in the foregoing instrument, and that the seal affixed to said instrument was signed and sealed in behalf of said municipal corporation by authority of its City Council and said Mayor and City Manager acknowledged said instrument to be the free act and deed of said municipal corporation. Notary Public After Recording, Please Return This This Instrument Was Drafted By:Instrument To: Darcy M. EricksonDarcy M. Erickson LeVander, Gillen & Miller, P.A.LeVander, Gillen & Miller, P.A. 633 South Concord Street633South Concord Street Suite 400Suite 400 South St. Paul, MN 55075South St. Paul, MN 55075 (651) 451-1831(651) 451-1831 7 ResolutionNo.2014-83 ENVIRONMENTALINDEMNIFICATION AGREEMENT FOR NORTHERN STACKS, ANOKA COUNTY, MINNESOTA THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (“Agreement”) is made, entered into and effective this day of , 2014, by and between the City of Fridley, a Minnesota municipal corporation (hereafter referred to as “City”) and Northern Stacks I LLCand Fridley Land LLC (hereafterindividually and collectivelyreferred to as “Landowner”). Subject to the terms and conditions hereafter stated and based on the representations, warranties, covenants, agreements and recitals of the parties herein contained, the parties do hereby agree as follows: ARTICLE 1 DEFINITIONS 1.1Terms. The following terms, unless elsewhere specifically defined herein, shall have the following meanings as set forth below. 1.2City. “City”means the City of Fridley, a Minnesota municipal corporation. 1.3Development Contract .“Development Contract”means that certain Development Contract for NORTHERN STACKSbetween the City and Landowner dated , 2014 relating to those certain Developer Improvements to be constructed on the Landowner Property as a condition of the City’s approval of Landowner’s Development Plans and the City’s approval and release to Landowner for recording of the final subdivision plat of NORTHERN STACKS, Anoka County, Minnesota. 1.4Landowner. “Landowner”means Northern Stacks I LLC, a Minnesota limited liability company, for purposes of Lot 1, Block 1, NorthernStacks and Fridley Land LLC, a Minnesota limited liability company, for purposes of Lot 2, Block 1, Northern Stacks. 1.5Landowner Property. “Landowner Property”means that certain real property Exhibit A located in the City of Fridley, Anoka County, Minnesota legally described on . ARTICLE 2 RECITALS Recital No. 1. Landowner owns the Landowner Property. Recital No. 2. Landowner has requested that the City give approval for and release to Landowner for recording the final plat of the NORTHERN STACKS subdivision. Recital No. 3. The City is willing to approve the Final Plat and release it for to Landowner for recording if, in addition to other obligations set forth in the Development Contract, Landowner executes andcomplies with this Agreementand the requirements contained in the Development Contract between the City and Landowner. Recital No. 4. The Development Contract requires the Landowner to construct certain Developer Public Improvements within public rights-of-way or within public easements and which are to be approved and later accepted by the City and transferred to the City for future operations and maintenance. Recital No. 5. The Landowner hereby acknowledges good and sufficient consideration for entering into this Agreement. ARTICLE 3 INDEMNIFICATION 3.1Indemnification. For purposes of this Section 3.1, the following terms have the meanings set forth on Exhibit B to this Agreement. Hazardous Substance Solid Waste ReleaseHazardous Waste PetroleumPollutants Construction DebrisContaminants Demolition DebrisSewage Sludge Industrial Solid WasteWaste MixedMunicipal Solid WasteEnvironmental Laws From and after the date hereof, Landowner agrees to indemnify, defend and hold the City harmless against and in respect of any and all claims, demands, actions, suits, proceedings, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, 2 penalties and reasonable attorneys’fees, that the City incurs or suffers, after the date hereof, which arise out of, result from or relate to the presence or Release of any Waste or Petroleum on the Landowner Property caused or contributed to by Landowner, its contractors, subcontractors, agents or employees, or any violation of any Environmental Law by Landowner, its contractors, subcontractors, agents, or employees. Uponthe City’s receipt of a copy of a Landowner’s No Further Action Letterwith respect to all or a portion of the Landowner Propertyfrom the Pollution Control Agency regardingthe Northern Stacks Phase I Remediation Action Plan, the City shall prepare and record a Release of Environmental Indemnification Agreement which shall release all or a portion of theLandowner Property from this Agreement, as appropriate. ARTICLE 4 MISCELLANEOUS 4.1Binding Agreement. The parties mutually recognize and agree that all terms and conditions of this Agreement shall run with the Landowner Propertyand shall be binding upon the parties and the successors and assigns of the parties. The parties also agree that this Agreement shall run with and be binding upon all after-acquired title of the Landowner with respect to the Landowner Property. 4.2Amendment and Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any party hereto may extend the time for the performance of any of the obligations of another, waive any inaccuracies in representations by another contained in this Agreement or in any document delivered pursuant hereto which inaccuracies would otherwise constitute a breachof this Agreement, waive compliance by another with any of the covenants contained in this Agreement, waive performance of any obligations by the other or waive the fulfillment of any condition that is precedent to the performance by the party so waiving of any of its obligations under this Agreement. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. 4.3Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. 4.4Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. IN WITNESS WHEREOF Landowner and the City have entered into this Agreement on the day and year first stated above. 3 CITY OF FRIDLEY By: Scott Lund Its: Mayor By: Walter Wysopal Its: City Manager STATE OF MINNESOTA) )ss. COUNTY OF ANOKA) On this day of , 2014, before me a Notary Public within and for said County, personally appeared Scott Lund and Walter Wysopal, to me personally known, who being each by me duly sworn, each did say that they are respectively the Mayor and City Managerof the City of Fridley, the municipality named in the foregoing instrument, and that the seal affixed to said instrument was signed and sealed on behalf of said municipality by authority of its City Council and said Mayor and City Manageracknowledged said instrument to be the free act and deed of said municipality. Notary Public 4 LANDOWNER: _____________________________ By:__________________________ Its:__________________________ STATE OF MINNESOTA) )ss. COUNTY OF ANOKA) On this ______ day of ____________, 2014, before me a Notary Public within and for said County, personally appeared _______________________to me personally known, who being by me duly sworn, did say that ____ is the ______________________of Northern Stacks ILLC,a Minnesota limited liability company, the limited liability company named in the foregoing instrument, and that said instrument was signed on behalf of said company by authority of its Board of Governors and said _________________ acknowledged said instrument to be the free act and deed of the limited liability company. 5 LANDOWNER: _____________________________ By:__________________________ Its:__________________________ STATE OF MINNESOTA) )ss. COUNTY OF ANOKA) On this ______ day of ____________, 2014, before me a Notary Public within and for said County, personally appeared _____________________ to me personally known, who being by me duly sworn, did say that ____ is the _______________ of Fridley Land LLC, a Minnesota limited liability company, the limited liability company named in the foregoing instrument, and that said instrument was signed on behalf of said company by authority of its Board of Governors and said _________________ acknowledged said instrument to be the free act and deed of the limited liability company. THIS INSTRUMENT DRAFTED BY:AFTER RECORDING PLEASE RETURN TO: Darcy M. EricksonDarcy M. Erickson LeVander, Gillen, & Miller, P.A.LeVander, Gillen & Miller, P.A. 633 South Concord Street633 South Concord Street Suite 400Suite 400 South St. Paul, MN 55075South St. Paul, MN 55075 (651) 451-1831(651) 451-1831 6 EXHIBIT A LEGAL DESCRIPTION OF LANDOWNER PROPERTY Real Property located in the City of Fridley, Anoka County, Minnesota, described as follows: Lots 1and 2, Block 1, NORTHERN STACKS, Anoka County, Minnesota. 7 EXHIBIT B ENVIRONMENTAL DEFINITIONS Hazardous Substance. Hazardous Substance means hazardous substance as defined by Minn. Stat. § 115B.02. Release. Release means any spilling, leakage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment of any Waste, Hazardous Substance, Petroleum or pollutant or contaminant as defined by 42 U.S.C. Section 9601. Petroleum. Petroleum means any of the following: a.)gasoline b.)fuel oil c.)kerosene d.)any petroleum distillate e.)any petroleum residual f.)diesel fuel g.)oil h.)ethanol. Construction Debris. Construction Debris means construction debris as defined by Minn. Stat. § 115A.03. Demolition Debris. Demolition Debris means solid waste resulting from the demolition of buildings, roads, and other man-made structures including concrete, brick, bituminous concrete, untreated wood, masonry, glass, trees, rock, and plastic building parts. Industrial Solid Waste. Industrial Solid Waste means industrial waste as defined by Minn. Stat. § 115A.03. Mixed Municipal Solid Waste. Mixed Municipal Solid Waste means mixed municipal solid waste as defined by Minn. Stat. § 115A.03. Solid Waste. Solid Waste means solid waste as defined by Minn. Stat. § 115A.03. Hazardous Waste. Hazardous Waste means hazardous waste as defined by Minn. Stat. § 115B.02. 8 Pollutants. Pollutants means pollutants as defined by Minn. Stat. § 115B.02. Contaminants. Contaminants means contaminants as defined by Minn. Stat. § 115B.02. Sewage Sludge. Sewage Sludge means sewage sludge as defined by Minn. Stat. § 115A.03. Waste. Waste means, jointly and severally, the following: a.)Hazardous Substances b.)Hazardous Waste c.)Pollutants d.)Contaminants e.)Construction Debris f.)Demolition Debris g.)Industrial Solid Waste h.)Mixed Municipal Solid Waste i.)Solid Waste. j.)Sewage Sludge. Environmental Laws. “Environmental Laws”shall mean all federal laws and regulations that protect or regulate the environment, including, but not limited to, the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Clean Water Act 33 U.S.C. § 1251 et seq., and the Water Quality Act of 1987; the FederalInsecticide Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq., the Marine Protection Research, and Sanctuaries Act, 33 U.S.C. § 1401 et seq.; the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; the Noise Control Act, 42 U.S.C. § 4901 et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C. § 3001 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. as amended by the Superfund Amendments and Reauthorization Act, the Emergency Planning and Community Right-To-Know Act, and Radon Gas and Indoor Air Quality research Act; the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2601 et seq.; the Atomic Energy Act, 42 U.S.C. § 2011 et seq., and the Nuclear Waste Policy Act of 1982, 42 U.S.C. § 2011 et seq., all as may be amended, with implementing regulations and guidelines. Environmental Laws shall also include The Minnesota Environmental Response and Liability Act (“MERLA”) and state, regional, county, municipal, and other local laws, regulations, and ordinances insofar as they are equivalent or similar to the federal laws recited above or purport to regulate Waste or Petroleum. 9