HomeMy WebLinkAbout2962Existing Certs
1455749
DO II
II I I I I 11 I
II I I I I
Doc No 105531059
Certified, filed and/or recorded on
May 16, 2018 9:26 AM
Office of the Registrar of Titles
Hennepin County, Minnesota
Martin McCormick, Registrar of Titles
Mark Chapin, County Auditor and Treasurer
Deputy 136 Pkg ID 1688709E
Document Recording Fee $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
CITY OF EDINA
5000 VERNON AVENUE
AGREEMENT dated MAY I Fr , 2018, by and between the CITY OF EDINA, a
Minnesota municipal corporation ("City") and ORION INVESTMENTS EDINA III, LLC a Minnesota limited
liability company ("Developer").
1. BACKGROUND.
A. Developer has applied to develop the following legally described property in the City
of Edina, Minnesota:
Lots 29, 30, 31 and 32, Block 3, "Grand View Heights", except that part of
said Lots taken by the State of Minnesota for state highway purposes, and
except vacated Summit Avenue adjoining said Lot 29.
The Easterly 1.00 foot of that portion vacated Summit Avenue adjoining
Block 3, "Grand View Heights" as dedicated in said plat, described as
follows:
Commencing at the Southeast corner of Lot 5, Block 4, "Grand View
Heights"; thence Easterly along the Easterly extension of the South line of
said Lot 5 to a point on centerline of said Summit Avenue being the point of
beginning of the land to be described; thence Northerly along said centerline
of Summit Avenue to the Southerly right-of-way of Interlachen Boulevard
(County Road No. 20); thence Southeasterly to the most Northerly corner of
Lot 32, Block 3, "Grand View Heights"; thence Southerly along the West
line of said Block 3 to its intersection with the Easterly extension of the
Southerly line of said Lot 5; thence Westerly to the point of beginning.
197149v2
Certificate of Title No. 846981
(hereinafter referred to as the "Subject Property")
B. The City has rezoned the Subject Property to Planned Commercial District 4,
(PCD-4).
2. RIGHT TO PROCEED. On the Subject Property, the Developer may not grade or otherwise
disturb the earth, remove trees, construct public or private improvements, or any buildings until all the
following conditions have been satisfied: 1) this agreement has been fully executed by both parties and
filed with both the City Clerk and the Hennepin County Recorder's Office, 2) the required security has been
received by the City, and 3) evidence of the required insurance has been received by the City.
3. PLANS. The Subject Property shall be developed in accordance with the 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:
Civil Engineering Plans
A1.1 COVER SHEET 4-11-2018
A1.2 EXISTING VIEWS 4-11-2018
A1.3 COLORED SITE PLAN 4-11-2018
C-1.0 SURVEY 1-15-2018
C-2.0 DEMOLITION PLAN 1-15-2018
C-3.0 SITE PLAN 1-15-2018
C-4.0 GRADING, DRAINAGE & 1-15-2018
EROSION CONTROL PLAN
C-5.0 UTILITY PLAN 1-15-2018
C-6.0 DETAILS 1-15-2018
L-1.0 LANDSCAPE PLAN 3-07-2018
P-1.0 PHOTOMETRIC PLAN 1-15-2018
A2 ELEVATIONS 4-11-2018.
A3 FLOOR PLAN 4-11-2018
A4 SITE SECTIONS 4-11-2018
A5 ARCHITECTURAL SITE 4-11-2018
PLAN & SIGNAGE PLAN
197149v2 2
The Developer may request changes to the Plans. For Plan changes deemed minor,
pursuant to City ordinances, changes can be reviewed and approved by City staff. All other Plan changes
shall require approval by the City Council.
4. EROSION CONTROL. Prior to initiating construction, the Erosion Control Plan shall be
implemented by the Developer and inspected and approved by the City. All areas disturbed by the grading
operations shall be stabilized per the Minnesota Pollution Control Agency ("MPCA") Stormwater Permit for
Construction Activity. Seed shall be in accordance with the City's current seeding specification, which may
include temporary seed to provide ground cover as rapidly as possible. All seeded areas shall be fertilized,
mulched, and disc anchored as necessary for seed retention. The parties recognize that time is of the
essence in controlling erosion. If the Developer does not comply with the MPCA Stormwater Permit for
Construction Activity or with the Erosion Control Plan or any schedule of supplementary instructions
received from the City and such failure to comply continues for a period in excess of five (5) days after
Developer's receipt of written notice from the City, the City may take such action as it deems appropriate to
control erosion. In the event of an emergency or if Developer's failure to comply with the MPCA Stormwater
Permit for Construction Activity or with the Erosion Control Plan will cause imminent damage or destruction
to persons or property, then the City will endeavor to notify the Developer in advance of any proposed
action, but failure of the City to do so will not affect the Developer's and City's rights or obligations
hereunder. If the Developer does not reimburse the City for any cost the City incurred for such work within
ten (10) days of receipt of written notice thereof, the City may draw on the letter of credit to pay any costs.
No development or utility construction will be allowed and no building permits will be issued unless the
Subject Property is in full compliance with the approved Erosion Control Plan.
5. 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 as required under this Agreement
197149v2 3
6. CONSTRUCTION ACCESS. Construction traffic access and egress must be in accordance
with the Construction Management Plan.
7. PUBLIC IMPROVEMENTS. Public Improvements shall be installed in accordance with City
standard specifications and ordinances. Grading, construction activity, and the use of power equipment
are prohibited between the hours of 9 o'clock p.m. and 7 o'clock a.m. All Public Improvement Plans shall
be prepared by a competent registered professional engineer and submitted 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. In
addition, the City may, at the City's discretion and at the Developer's expense, not to exceed $5,000, have
one or more City inspectors and a soil engineer inspect the work on a part-time basis. The Developer, its
contractors and subcontractors, shall follow all instructions received from the City's inspectors. 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 its engineer shall schedule a pre-construction meeting at a mutually
agreeable time at the City with all parties concerned, including the City staff, to review the program for the
construction work. Within thirty (30) days after the completion of the Public Improvements and before the
security is released, the Developer shall supply the City with a complete set of reproducible "as
constructed" plans and an electronic file of the "as constructed" plans that satisfy the City's record drawings
requirement which are attached. The Record Drawings shall be submitted prior to the Developer receiving
an occupancy permit for any building on the Subject Property.
8. DEWATERING. Due to the variable nature of groundwater levels and stormwater flows, it is
the Developer's responsibility to satisfy itself with regard to the elevation of groundwater and to perform any
necessary dewatering and storm flow routing. All dewatering shall be in accordance with applicable laws
and regulations.
197149v2 4
9. TIME OF PERFORMANCE. The Developer shall install all required Public Improvements
by November 20, 2018.
10. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from
construction work by the Developer, subcontractors, their agents or assigns. Prior to any construction in the
Subject Property, the Developer shall Identify in writing a responsible party and schedule for erosion
control, street cleaning, and street sweeping.
11. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction
required by this Agreement and final acceptance by the City, the Public Improvements identified in the
Plans lying within public easements shall become City property without further notice or action. Prior to
acceptance of the improvements by the City, the Developer must furnish the following affidavits:
• Contractor's Certificate
• Engineer's Certificate
• Developer's Certificate
certifying that all construction has been completed in accordance with the terms of this Agreement. 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, to the extent not previously delivered to the City, 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. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. The
Developer shall pay for in-house engineering administration. City in-house engineering administration will
include monitoring of construction observation, consultation with Developer and its engineer on status or
problems regarding the Project, coordination for final inspection and acceptance, Project monitoring during
the warranty period, and processing of requests for reduction in security. The cost of in-house engineering
administration shall not exceed $5,000.
13. SECURITY REQUIREMENTS. To guarantee compliance with the terms of this Agreement
and all of the Plans, payment of the costs of all Public Improvements, and construction of all Public
197149v2 5
Improvements, the Developer shall either deposit cash with the City or furnish the City with a letter of credit
in the form attached hereto (or some combination of cash and a letter of credit), from a bank in the total
amount of Thirty-Five Thousand and 00/100 Dollars ($35,000.00) ("security") and a cash fee of Five
Hundred and 00/100 Dollars ($500.00) for City engineering administration. The bank issuing the letter of
credit 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 required Public
Improvements are not completed at least thirty (30) days prior to the expiration of the security, the City may
also draw it down upon five (5) business days written notice to the Developer and shall hold the same until
Developer is entitled to reimbursement or disbursement hereunder. If the security is drawn down, the
proceeds shall be used to cure the default. Upon receipt of proof satisfactory to the City that the Project has
been substantially completed in accordance with the Plans 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 security shall be retained as
security until all Public improvements have been completed, all financial obligations to the City satisfied, the
required "as constructed" plans have been received by the City, a warranty is provided, and the Public
Improvements are accepted by the City Council. The City's standard specifications for utility and street
construction outline procedures for security reductions.
14. WARRANTY. The Developer warrants all Public Improvements required to be constructed
by it pursuant to this Agreement against poor material and faulty workmanship. The warranty period for all
Public Improvements is one year and shall commence following completion. The Developer shall post
maintenance bonds in the amount of twenty-five percent (25%) of final certified construction costs of the
Public Improvements to secure the warranties. The City shall retain ten percent (10%) of the security
posted by the Developer until the maintenance bonds are furnished to the City or until the warranty period
expires, whichever first occurs. The retainage may be used to pay for warranty work. The City's standard
specifications for utility construction identify the procedures for final acceptance of utilities.
197149v2 6
15. SPECIAL PROVISIONS. Developer shall comply with all of the conditions outlined in City
Council resolution 2018-27 and in the Director of Engineering's memo dated March 7, 2018. If the Director
of Engineering's memo conflicts with the City Council resolution, the City Council resolution takes
precedence.
16. RESPONSIBILITY FOR COSTS.
A. The Developer shall pay all reasonable costs incurred by it or the City in conjunction
with the development of the site and installation of the Public Improvements, including but not limited to
legal, planning, engineering and Inspection expenses incurred in connection with approval and
development of the Subject Property, 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 itself and third parties for damages sustained or costs incurred resulting from
Developer's development of the site and installation of Public Improvements. 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 reasonable attorneys' fees.
C. The Developer shall pay in full all bills submitted to it by the City for undisputed
obligations incurred under this Agreement within thirty (30) days after receipt. If the undisputed bills are not
paid on time, the City may halt site development and construction until the bills are paid in full. Bills not
paid within thirty (30) days shall accrue interest at the rate of eight percent(8%) per year.
17. MISCELLANEOUS.
A. Third parties shall have no recourse against the City or the Developer under this
Agreement.
B. Breach of the terms of this Agreement by the Developer shall be grounds for denial
of building permits, including property conveyed to third parties.
197149v2 7
C. 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 portions
of this Agreement.
D. If building permits are issued prior to the acceptance of Public Improvements, the
Developer assumes all liability and costs resulting in delays in completion of Public Improvements and
damage to Public Improvements caused by the City, Developer, its contractors, subcontractors, material
men, employees, agents, or third parties. No sewer and water connections or inspections may be
conducted and no one may occupy a building for which a building permit is issued on either a temporary or
permanent basis until the streets needed for access have been paved with a bituminous surface and the
utilities are accepted by the City Engineer.
E. 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.
F. 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 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.
G. The Developer and its contractors shall acquire public liability and property damage
insurance covering personal injury, including death, and claims for property damage which may arise out of
the Developer's work or the work of their subcontractors or by one directly or indirectly employed by any of
them. Limits for bodily injury and death shall be not less than $100,000 for one person and $1,000,000 for
each occurrence; limits for property damage shall be not less than $200,000 for each occurrence; or a
combination single limit policy of $1,000,000 or more. The City shall be named as an additional insured on
197149v2 8
the policy on a primary and noncontributory basis, and the Developer and contractors shall file with the City
a certificate evidencing coverage. Developer shall cause the City to be provided ten (10) days advance
written notice of the cancellation of the Insurance. The Developer and contractors must provide a
Certificate of Insurance which meets the following requirements:
(1) The Description section of the Accord form needs to read "City of Edina is
named as Additional Insured with respect to the General Liability and Auto
Liability policies on a Primary and Non-Contributory Basis."
(2) Certificate Holder must be City of Edina.
(3) Provide copy of policy endorsement showing City of Edina named as
Additional Insured on a Primary and Non-Contributory Basis.
H. The Developer and its general contractor shall obtain Workmen's Compensation
Insurance in accordance with the laws of the State of Minnesota, including Employers Liability Insurance,
to the limit of $100,000.00 each accident.
I. 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.
J. The Developer may not assign this Agreement without the written permission of the
City Council. The Developer's obligation hereunder shall continue in full force and effect even if the
Developer sells one or more lots, the entire Subject Property, or any part of it.
K. An uncured breach of the terms of this Agreement by the Developer and the failure
to cure such breach within the period provided in this Agreement, 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.
197149v2 9
L. The Developer represents to the City that the development and construction of
improvements on the Subject Property will comply 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 written demand, the Developer shall cease work until there is compliance.
M. From time to time, when requested by Developer, the City shall execute and deliver
a recordable certificate confirming the satisfaction or completion of certain requirements contained in this
Agreement.
18. DEVELOPER'S DEFAULT. In the event of default by the Developer beyond the applicable
notice and cure periods provided in this Agreement 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
actual, out-of-pocket expense incurred by the City, provided the Developer, except in an emergency as
determined by the City, is first given written notice of the work in default, not less than ten (10) days in
advance. This Agreement is a license for the City to act, and it shall not be necessary for the City to seek?
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.
19. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand
delivered to the Developer or mailed to the Developer by certified mail at the following address: Orion
Investments Edina III, LLC, c/o Carlson Commercial, 4530 West 77th Street, Suite 365, Edina, Minnesota
55435. 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]
197149v2 10
CITY OF EDI
•James o and ayor
Scott Neal, Ci y Manager
COMM. #6107578 COMM. #6107578 Notary Public State of Minnesota
Arm Commission Expires 1/31/2020
STATE OF MINNESOTA )
al
/1
ss.W' )
COUNTY OF )
The foregoing instrument was
2018, by James Hovland and by Scott
a Minnesota municipal corporation, on
City Council.
acknowledged before me this at day of
Neal, respectiVely the Mayor and City Manager of the ity of Edina,
behalf of the corporation and pursuant to the authority granted by its
197149v2 11
DEVELOPER:
ORION INVESTMENTS EDINA III, LLC
BY:
Name: 6.41.2 ten/
Title: dA24-A/~/c.
STATE OF MINNESOTA )
)ss.
COUNTY OF Wits Lk, ioit )
The foregoing instrument was acknowledged before me this PI day of MI
2018, by T d radson , the M61,10 y cr of Orion Investments Edina
III, a Minnesota limited liability company, on behalf of the limited liability company.
Wit/44d- ,01-0,evrzeile,
NOTARY PUBLIC
NICHOLAS,ANTHONY SCARRED
NOTARYPUBLIC-MINNESOTA
MYCOMMISSIONEXPIRES01/3112020
DRAFTED BY:
CAMPBELL KNUTSON, P.A.
860 Blue Gentian R d; Suite 290 ' " - fa
Eagan, MN 55121 tO, c:
Telephone: 651-45 -500a'
[RNK)
197149v2 12
IRREVOCABLE LETTER OF CREDIT
No.
Date:
TO: City of Edina
4801 W. 50th Street
Edina, Minnesota 55424-1330
Dear Sir or Madam:
We hereby issue, for the account of (Name of Developer) and in your favor, our Irrevocable
Letter of Credit in the amount of $ available to you by your draft drawn on sight on the
undersigned bank.
The draft must:
a) Bear the clause, "Drawn under Letter of Credit No. dated , 2
of (Name of Bank)
b) Be signed by the City Manager or Finance Director of the City of Edina.
c) Be presented for payment at (Address of Bank) , on or before 4:00 p.m. on November 30,
2
This Letter of Credit shall automatically renew for successive one-year terms unless, at least forty-five
(45) days prior to the next annual renewal date (which shall be November 30 of each year), the Bank delivers
written notice to the Edina Finance Director that it intends to modify the terms of, or cancel, this Letter of Credit.
Written notice is effective if sent by certified mail, postage prepaid, and deposited In the U.S. Mail, at least forty-
five (45) days prior to the next annual renewal date addressed as follows: Edina City Manager, Edina City Hall,
4801 W. 50th Street Edina, MN 55424-1330, and is actually received by the City Manager at least thirty (30) days
prior to the renewal date.
This Letter of Credit sets forth in full our understanding which shall not in any way be modified,
amended, amplified, or limited by reference to any document, instrument, or agreement, whether or not referred
to herein.
This Letter of Credit is not assignable. This is not a Notation Letter of Credit. More than one draw may
be made under this Letter of Credit.
This Letter of Credit shall be governed by the most recent revision of the Uniform Customs and Practice
for Documentary Credits, International Chamber of Commerce Publication No. 600.
We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly
honored upon presentation.
BY:
Its
197149v2 13
(reserved for recording information)
SITE IMPROVEMENT PERFORMANCE AGREEMENT
CITY OF EDINA
5000 VERNON AVENUE
AGREEMENT dated /1.4 , 2018, by and between the CITY OF EDINA, a
Minnesota municipal corporation ("City") and ORION INVESTMENTS EDINA III, LLC a Minnesota limited
liability company ("Developer").
1. BACKGROUND.
A. Developer has applied to develop the following legally described property in the City
of Edina, Minnesota:
Lots 29, 30, 31 and 32, Block 3, "Grand View Heights", except that part of
said Lots taken by the State of Minnesota for state highway purposes, and
except vacated Summit Avenue adjoining said Lot 29.
The Easterly 1.00 foot of that portion vacated Summit Avenue adjoining
Block 3, "Grand View Heights" as dedicated in said plat, described as
follows:
Commencing at the Southeast corner of Lot 5, Block 4, "Grand View
Heights"; thence Easterly along the Easterly extension of the South line of
said Lot 5 to a point on centerline of said Summit Avenue being the point of
beginning of the land to be described; thence Northerly along said centerline
of Summit Avenue to the Southerly right-of-way of Interlachen Boulevard
(County Road No. 20); thence Southeasterly to the most Northerly corner of
Lot 32, Block 3, "Grand View Heights"; thence Southerly along the West
line of said Block 3 to its intersection with the Easterly extension of the
Southerly line of said Lot 5; thence Westerly to the point of beginning
197149v2 1
The Developer may request changes to the Plans. For Plan changes deemed minor,
pursuant to City ordinances, changes can be reviewed and approved by City staff. All other Plan changes
shall require approval by the City Council.
4. EROSION CONTROL. Prior to initiating construction, the Erosion Control Plan shall be
implemented by the Developer and inspected and approved by the City. All areas disturbed by the grading
operations shall be stabilized per the Minnesota Pollution Control Agency ("MPCA") Stormwater Permit for
Construction Activity. Seed shall be in accordance with the City's current seeding specification, which may
include temporary seed to provide ground cover as rapidly as possible. All seeded areas shall be fertilized,
mulched, and disc anchored as necessary for seed retention. The parties recognize that time is of the
essence in controlling erosion. If the Developer does not comply with the MPCA Stormwater Permit for
Construction Activity or with the Erosion Control Plan or any schedule of supplementary instructions
received from the City and such failure to comply continues for a period in excess of five (5) days after
Developer's receipt of written notice from the City, the City may take such action as it deems appropriate to
control erosion. In the event of an emergency or if Developer's failure to comply with the MPCA Stormwater
Permit for Construction Activity or with the Erosion Control Plan will cause imminent damage or destruction
to persons or property, then the City will endeavor to notify the Developer in advance of any proposed
action, but failure of the City to do so will not affect the Developer's and City's rights or obligations
hereunder. If the Developer does not reimburse the City for any cost the City incurred for such work within
ten (10) days of receipt of written notice thereof, the City may draw on the letter of credit to pay any costs.
No development or utility construction will be allowed and no building permits will be issued unless the
Subject Property is in full compliance with the approved Erosion Control Plan.
5. 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 as required under this Agreement.
197149v2 3
9. TIME OF PERFORMANCE. The Developer shall install all required Public Improvements
by November 20, 2018.
10. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from
construction work by the Developer, subcontractors, their agents or assigns. Prior to any construction in the
Subject Property, the Developer shall identify in writing a responsible party and schedule for erosion
control, street cleaning, and street sweeping.
11. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction
required by this Agreement and final acceptance by the City, the Public Improvements identified in the
Plans lying within public easements shall become City property without further notice or action. Prior to
acceptance of the improvements by the City, the Developer must furnish the following affidavits:
• Contractor's Certificate
• Engineer's Certificate
• Developer's Certificate
certifying that all construction has been completed in accordance with the terms of this Agreement. 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, to the extent not previously delivered to the City, 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. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. The
Developer shall pay for in-house engineering administration. City in-house engineering administration will
include monitoring of construction observation, consultation with Developer and its engineer on status or
problems regarding the Project, coordination for final inspection and acceptance, Project monitoring during
the warranty period, and processing of requests for reduction in security. The cost of in-house engineering
administration shall not exceed $5,000.
13. SECURITY REQUIREMENTS. To guarantee compliance with the terms of this Agreement
and all of the Plans, payment of the costs of all Public Improvements, and construction of all Public
197149v2 5
15. SPECIAL PROVISIONS. Developer shall comply with all of the conditions outlined in City
Council resolution 2018-27 and in the Director of Engineering's memo dated March 7, 2018. If the Director
of Engineering's memo conflicts with the City Council resolution, the City Council resolution takes
precedence.
16. RESPONSIBILITY FOR COSTS.
A. The Developer shall pay all reasonable costs incurred by it or the City in conjunction
with the development of the site and installation of the Public Improvements, including but not limited to
legal, planning, engineering and inspection expenses incurred in connection with approval and
development of the Subject Property, 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 itself and third parties for damages sustained or costs incurred resulting from
Developer's development of the site and installation of Public Improvements. 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 reasonable attorneys' fees.
C. The Developer shall pay in full all bills submitted to it by the City for undisputed
obligations incurred under this Agreement within thirty (30) days after receipt. If the undisputed bills are not
paid on time, the City may halt site development and construction until the bills are paid in full. Bills not
paid within thirty (30) days shall accrue interest at the rate of eight percent (8%) per year.
17. MISCELLANEOUS.
A. Third parties shall have no recourse against the City or the Developer under this
Agreement.
B. Breach of the terms of this Agreement by the Developer shall be grounds for denial
of building permits, including property conveyed to third parties.
197149v2 7
the policy on a primary and noncontributory basis, and the Developer and contractors shall file with the City
a certificate evidencing coverage. Developer shall cause the City to be provided ten (10) days advance
written notice of the cancellation of the insurance. The Developer and contractors must provide a
Certificate of Insurance which meets the following requirements:
(1) The Description section of the Accord form needs to read "City of Edina is
named as Additional Insured with respect to the General Liability and Auto
Liability policies on a Primary and Non-Contributory Basis."
(2) Certificate Holder must be City of Edina.
(3) Provide copy of policy endorsement showing City of Edina named as
Additional Insured on a Primary and Non-Contributory Basis.
H. The Developer and its general contractor shall obtain Workmen's Compensation
Insurance in accordance with the laws of the State of Minnesota, including Employer's Liability Insurance,
to the limit of $100,000.00 each accident.
I. 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.
J. The Developer may not assign this Agreement without the written permission of the
City Council. The Developer's obligation hereunder shall continue in full force and effect even if the
Developer sells one or more lots, the entire Subject Property, or any part of it.
K. An uncured breach of the terms of this Agreement by the Developer and the failure
to cure such breach within the period provided in this Agreement, 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.
197149v2 9
Scott Neal, Ci y Manager
DEBRA A61075 MANGER COMM. #78 Notary Public
State of MinnesOtt
My Commission Spree 1131/2020
STATE OF MINNESOTA )
Irv& )ss.
COUNTY OF t4 'ERIN )
The foregoing instrument was
2018, by James Hovland and by Scott
a Minnesota municipal corporation, on
City Council.
acknowledged before me thisThLD`t day of
Neal, respectively the Mayor and City Manager of the ity of Edina,
behalf of the corporation and pursuant to the authority granted by its
197149v2 11
IRREVOCABLE LETTER OF CREDIT
No.
Date:
TO: City of Edina
4801 W. 50th Street
Edina, Minnesota 55424-1330
Dear Sir or Madam:
We hereby issue, for the account of (Name of Developer) and in your favor, our Irrevocable
Letter of Credit in the amount of $ , available to you by your draft drawn on sight on the
undersigned bank.
The draft must:
a) Bear the clause, "Drawn under Letter of Credit No.
of (Name of Bank)
, dated , 2
b) Be signed by the City Manager or Finance Director of the City of Edina.
2
c) Be presented for payment at (Address of Bank) , on or before 4:00 p.m. on November 30,
This Letter of Credit shall automatically renew for successive one-year terms unless, at least forty-five
(45) days prior to the next annual renewal date (which shall be November 30 of each year), the Bank delivers
written notice to the Edina Finance Director that it intends to modify the terms of, or cancel, this Letter of Credit.
Written notice is effective if sent by certified mail, postage prepaid, and deposited in the U.S. Mail, at least forty-
five (45) days prior to the next annual renewal date addressed as follows: Edina City Manager, Edina City Hall,
4801 W. 50th Street Edina, MN 55424-1330, and is actually received by the City Manager at least thirty (30) days
prior to the renewal date.
This Letter of Credit sets forth in full our understanding which shall not in any way be modified,
amended, amplified, or limited by reference to any document, instrument, or agreement, whether or not referred
to herein.
This Letter of Credit is not assignable. This is not a Notation Letter of Credit. More than one draw may
be made under this Letter of Credit.
This Letter of Credit shall be governed by the most recent revision of the Uniform Customs and Practice
for Documentary Credits, International Chamber of Commerce Publication No. 600.
We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly
honored upon presentation.
BY:
Its
197149v2 13