Agenda - Council - 09/26/2023 - Laserfiche WebLink

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7. Required Improvements Completion Date. The Required Improvements shall be completed within twelve (12) months after the commencement of construction of the Required Improvements, subject to Unavoidable Delay (the "Required Improvements Deadline"). For the purposes of this Agreement, the term "Unavoidable Delay" means delays, outside the reasonable control of the party claiming its occurrence, which are the result of strikes, other labor troubles, unusually severe or prolonged bad weather, acts of God, global pandemic, epidemic, government mandated quarantine or travel bans, government mandate closures, fire or other casualty to the development contemplated by this Agreement, litigation commenced by third parties which, by injunction or other similar judicial action or by the exercise of reasonable discretion, results in delays, or acts of any federal, state or local governmental unit, shortages of materials, extraordinary restrictive governmental laws or regulations (such as gas rationing), riots, war, military power, sabotage. The time for performance of any obligation of ALDI set forth in this Agreement shall be extended for the period of the delay of such obligation due to Unavoidable Delay(s). 8. Required Improvements Financial Guaranty. In order to ensure the installation of the Required Improvements in accordance with CITY specifications and in a timely manner, ALDI shall be required to deposit with the CITY an irrevocable letter of credit, reasonably approved as to form by the CITY, in the amount of $793,021.00 (the "Financial Guaranty"), which is 125% of the CITY's estimated cost of the Required Improvements. Prior to the issuance of the building permit, the Financial Guaranty must be provided as required herein. At the request of ALDI, the CITY shall, not more frequently than once monthly, release that part of the Financial Guaranty for any completed portion of the Required Improvements in the amount set forth in Section 6. Upon completion of the construction of all or any remaining of the Required Improvements, the Financial Guaranty shall be returned to ALDI and ALDI shall be required to provide the landscaping maintenance guaranty described in Section III Paragraph 11 of this Agreement. The determination of completion of the construction of the Required Improvements shall be made by the CITY, which such determination must be made reasonably, without delay, and in good faith. If, subject to Unavoidable Delay, ALDI fails to substantially construct and install the Required Improvements on or prior to the Required Improvements Deadline, and such failure continues for a period of 60 days (or such other greater period of time reasonably necessary to cure such failure if such failure is not reasonably able to be cured within such 60-day period, provided ALDI has undertaken procedures to cure such default within such 60-day period and diligently pursues such cure to completion) after ALDI's receipt of written notice from the City specifying such failure in reasonable detail, the City Council may order the completion of the Required Improvements with CITY day labor and/or by letting contracts for said completion and draw upon the letter of credit for payment. ALDI hereby grants permission and a license to the CITY and/or its contractors and assigns to enter upon the Subject Property for the purpose of completing the construction and installation of the Required Improvements in the event of ALDI's default, which such permission and license shall automatically terminate and expire upon substantial completion of the Required Improvements. 9. Site Inspection Fees. ALDI shall be responsible for all reasonable site inspection costs incurred by the CITY related to the installation of Required Improvements. ALDI shall make a cash deposit into the appropriate escrow account at the CITY and the CITY shall have the authority to draw upon these funds for the purpose of compensating for inspection services. The amount of the deposit shall be equal to $31,721.00. Upon completion of the Required Improvements to the reasonable satisfaction of the CITY, any surplus balance remaining in the CITY's escrow account shall be refunded to ALDI within 30 days thereafter. Aldi Development Agreement Page 3 of 9