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HomeMy WebLinkAbout2929Existing Certs 1445159 0 IN 1 II 1 Doc No T05468302 iii II II Certified, filed and/or recorded on Aug 11, 2017 4:30 PM III Office of the Registrar of Titles Hennepin County, Minnesota Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 84 Document Recording Fee Pkg ID 1587454M $46.00 Document Total $46.00 This cover sheet is now a permanent part of the recorded document. (reserved for recording information) SITE IMPROVEMENT PERFORMANCE AGREEMENT HOMEWOOD SUITES AGREEMENT dated June 20, 2017, by and between the CITY OF EDINA, a Minnesota municipal corporation ("City") and NF III/S EDINA, LLC, a Minnesota limited liability company ("Developer"). 1. BACKGROUND. A. The Developer has submitted to the City a Registered Land Survey, site plan and grading, drainage and utility plan for improvements on property in the City of Edina, Minnesota, legally described as Tract B, Registered Land Survey No. 1847, Hennepin County, Minnesota (hereinafter referred to as the "Subject Property"). B. The proposed site plan improvements to the above-described property include a Hilton Homewood Suites hotel and a new parking lot. The new bituminous parking lot contains 115 stalls. 2. CONDITIONS OF APPROVAL. This Agreement is a condition of City site plan approval and will be recorded against the subject property. 3. PLANS. The subject property shall be developed in accordance with the Director of Engineering's memo dated April 6, 2016 and following plans which are on file with the City. The plans shall not be attached to this Agreement. If the plans vary from the written terms of this Agreement, the written terms shall control. The plans are: 192349v2 1 Plan A — Site Plan date stamped February 29, 2016 Plan B — Grading and Drainage Plan date stamped October 10, 2016 Plan C — Landscaping plan date stamped February 29, 2016 Plan D — Building elevations date stamped February 29, 2016 Plan E — Building materials board as presented at the planning Commission and City Council meetings. 4. LICENSE. Developer hereby grants the City, its agents, employees, officers and contractors a license to enter the Subject Property to perform all work and inspections deemed appropriate by the City in conjunction with site development. 5. IMPROVEMENTS CONSTRUCTED AND PAID FOR BY DEVELOPER. The Developer shall construct and pay 100% of the cost of the following public improvements in accordance with the development plans: A. Sanitary Sewer crossing of York Avenue B. Watermain crossing of York Avenue C. Sidewalks along York and 66th Street 6. DEVELOPER CONSTRUCTED IMPROVEMENT. Improvements required by this Contract to be constructed by the Developer shall be installed in accordance with plans approved by the City and in accordance with all applicable City ordinances, regulations and policies. The Developer shall submit plans and specifications which have been prepared by a competent registered professional engineer to the City for approval by the City Engineer. The Developer shall instruct its engineer to provide adequate field inspection personnel to assure an acceptable level of quality control to the extent that the Developer's engineer will be able to certify that the construction work meets the approved City standards as a condition of City acceptance, as stated in Section 11, Engineers Record Drawings. The Developer, its contractors and subcontractors, shall 192349v2 2 follow all reasonable instructions received from the City's inspectors and engineers. The Developer's engineer shall provide for on-site project management. The Developer's engineer is responsible for design changes and contract administration between the Developer and the Developer's contractor. The Developer or his engineer shall schedule pre -construction meetings as necessary to coordinate the work and to allow the City to review the program for the construction work. All labor and work shall be done and performed in good and workmanlike manner and in strict conformance with the approved plans and specifications. No material deviations from the approved plans and specifications will be permitted unless approved in writing by the City. The Developer agrees to furnish to the City a list of contractors being considered for retention by the Developer for the performance of the work required by the Contract. The Developer shall not do any work or furnish any materials not covered by the plans and specifications and special conditions of this Contract, for which reimbursement is expected from the City, unless such work is first ordered in writing by the City Engineer as provided in the specifications. 7. PARK DEDICATION. The Developer shall make cash contribution of $18,460.00 to satisfy the City's park dedication requirements. Payment is due at the time before a building permit is issued. 8. SECURITY REQUIREMENTS. To guarantee compliance with the terms of this Agreement and all of the above plans, the Developer shall furnish the City with a cash escrow or letter of credit in the form attached hereto, from a bank ("security") for $102,000, plus a cash fee of $5,100 for City engineering administration. The amount of the security was calculated as follows: TOTAL PROJECT SECURITIES: $102,000.00 This breakdown is for historical reference; it is not a restriction on the use of the security. The bank shall be subject to the approval of the City Manager. The City may draw down the security, on five (5) business days written notice to the Developer, for any violation of the terms of this Agreement or without notice if the security is allowed to lapse prior to the end of the required term. If the security is drawn down, the proceeds 192349v2 3 shall be used to cure the default. Upon receipt of proof satisfactory to the City that work has been completed and financial obligations to the City have been satisfied, with City approval the security may be reduced from time to time by ninety percent (90%) of the financial obligations that have been satisfied. Ten percent (10%) of the amounts certified by the Developer's engineer shall be retained as security until all improvements have been completed. 9. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash requirements under this Contract which must be furnished to the City: City Engineering Administration (5.00%) $5,100.00 TOTAL CASH REQUIREMENTS $5,100.00 10. RESPONSIBILITY FOR COSTS. A. The Developer shall pay all costs incurred by it or the City in conjunction with the development of the site, including but not limited to legal, planning, engineering, and inspection expenses incurred in connection with approval of the site plan, the preparation of this Agreement, review of any other plans and documents. B. The Developer shall hold the City and its officers, employees, and agents harmless from claims made by it and third parties for damages sustained or costs incurred resulting from site approval and development. The Developer shall indemnify the City and its officers, employees, and agents for all costs, damages, or expenses which the City may pay or incur in consequence of such claims, including attorneys' fees. C. The Developer shall reimburse the City for costs incurred in the enforcement of this Agreement, including engineering and attorneys' fees. D. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Agreement within thirty (30) days after receipt. Bills not paid within thirty (30) days shall accrue interest at the rate of eight percent (8%) per year. 192349v2 4 11. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction required by this Contract, the improvements lying within public easements shall become City property. Prior to acceptance of the improvements by the City, the Developer must furnish the following affidavits: - Contractor's Certificate - Engineer's Certificate - Land Surveyor's Certificate - Developer's Certificate certifying that all construction has been completed in accordance with the terms of this Contract. All necessary forms will be furnished by the City. Upon receipt of affidavits and verification by the City Engineer, the City Engineer will accept the completed public improvements. Within thirty (30) days after the acceptance of the improvements, the Developer shall supply the City with a complete set of reproducible "record" plans, an electronic file of the "record" plans in accordance with the City's Design and Construction Manual. 12. EASEMENT FOR PUBLIC IMPROVEMENTS. Upon signing this Agree the Developer shall provide to the City public easements for the sidewalks and utilities identified in Paragraph 4 consistent with the City approved plans and in a form approved by the City. 13. MISCELLANEOUS. A. Third parties shall have no recourse against the City under this Agreement. B. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Agreement is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Agreement. C. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Agreement. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Agreement shall not be a waiver or release. 192349v2 5 D. This Agreement shall run with the land and may be recorded against the title to the Subject Property. The Developer covenants with the City, its successors and assigns, that the Developer has fee title to the Subject Property and/or has obtained consents to this Agreement, in the form attached hereto, from all parties who have an interest in the property; that there are no unrecorded interests in the property; and that the Developer will indemnify and hold the City harmless for any breach of the foregoing covenants. E. Each right, power or remedy herein conferred upon the City is cumulative and in addition to every other right, power or remedy, express or implied, now or hereafter arising, available to City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power or remedy. F. Breach of the terms of this Agreement by the Developer, including nonpayment of billings from the City, shall be grounds for denial of building permits and certificates of occupancy, and the halting of all work on the property. G. The Developer represents to the City that the development complies with all city, county, metropolitan, state, and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the development does not comply, the City may, at its option, refuse to allow construction or development work in the development until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. 14. DEVELOPER'S DEFAULT. In the event of default by the Developer as to any of the work to be performed by it hereunder, the City may, at its option, perform the work and the Developer shall promptly reimburse the City for any expense incurred by the City, provided the Developer, except in an emergency as determined by the City, is first given notice of the work in default, not less than forty-eight (48) hours in advance. This Agreement is a license for the City to act, and it shall not be necessary for the 192349v2 6 City to seek a Court order for permission to enter the land. When the City does any such work, the City may, in addition to its other remedies, assess the cost in whole or in part. 15. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, its employees or agents, or mailed to the Developer by certified mail at the following address: 2000 Monarch Tower, 3424 Peachtree Road NE, Atlanta, GA 30326. Notices to the City shall be in writing and shall be either hand delivered to the City Manager, or mailed to the City by certified mail in care of the City Manager at the following address: Edina City Hall, 4801 W. 50th Street, Edina, Minnesota 55424-1330. [The remainder of this page has been intentionally left blank. Signature pages follow.] 192349v2 7 CITY OF E AND lIk& Jame' Hovland, Mayor Th t Neal, City Manager STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) 61 The foregoing instrument was acknowledged before me this j��ii`cl day of 2017, by James Hovland and by Scott Neal, respectively the Mayor and City Manager of the Cit f Edina, a Minnesota municipal corporation, on behalf of the• • - and pursuant to the authority granted by its ,111 City Council. Notary Public SHARON M. ALLISON Notary Public -Minnesota Ph Commission Evans s Jan 31, 2014 Aw 192349v2 8 DEVELOPER: NF III/ S EDINA, LLC By: Name: ISodney W I I 1 ia,, r" s Its: V1Ce PresIoVc - f STATE OF eneortSio.. ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this 34'"4 day of 2017, by "Rodney Wiitio.r"s , the Vice pre .e"�- -IFPMETAL=F4s, a Minnesota limited liability compan , on behalf of theited liability company. NJ' Itis E.tn•. LLC. z v-1 c of DRAFTED BY: CAMPBELL KNUTSON, P.A. 860 Blue Gentian Road, Suite 290 Eagan, Minnesota 55121 Telephone: 651-452-5000 [RNK] 192349v2 9 tlzur Thomas J. Campbell Roger N. :Knutson Elliott B. Knetsch Joel. j. Jamnik Andrea McDowell Poehler Soren M. Mattick John F. Kelly Henry A. Schaeffer, 111 Mina Schwartz Shana N. Conklin Amy B. Schutt James J. Mon0, 111 Jerome M. Porter Kurt S. Fischer Matthew K. Brokl Grand Oak ()Rice Center 1 860 Blue Gentian Road Suite 290, Fagan, MN 55121 651-452-5000 Fax 651-234-6237 www,ek-law.com CAMPBELL KNUTSON Professional Association August 25, 2017 Ms. Sharon Allison City of Edina 7450 Metro Boulevard Edina, MN 55439 Re: City of Edina —Miscellaneous Recording Dear Ms. Allison: Enclosed herewith for your file is the original recorded Site Improvement Performance Agreement for Homewood Suites. This document was recorded with the Hennepin County Registrar of Titles on August 11, 2017 as Document No. T05468302. Thank you. Very truly yours, CAMPBELL KNUTSON Professional Association Jean M. son, egal Assistant /jmo Enclosure 181411 181411v2