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SITE IMPROVEMENT PERFORMANCE AGREEMENT
CITY OF EDINA
SHAKE SHACK
AGREEMENT dated -c-do>1 2018, by and between the CITY OF EDINA, a
Minnesota municipal corporation ("OW') and SOUTHDALE CENTER, LLC, a Delaware limited liability
company ("Developer).
'I, BACKGROUND. The Developer has applied to develop property in the City of Edina,
Minnesota, legally described as:
See Exhibit "C" attached hereto.
(hereinafter referred to as the "Subject Property").
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's Recorders office, 2) the required security has been
received by the City, 3) insurance certificates have been received by the City, which certificates evidence
Developer's compliance with the required Insurance coverage set forth herein, and 4) the required
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easements have been executed and flied, with both the City Clerk and the Hennepin County's Recorders
office.
3. PLANS. The Subject Property shall be developed In accordance with the following Plans.
The plans shall not be attached to this Contract. The plans may be prepared, subject to the City Engineer's .
approval, after entering this Agreement, but before commencement of any work on the Subject Property.
The Plans are:
• Public water main
• Public sidewalk
• Drainage, Erosion Control Plans
• Utility Plans
• Landscaping Plans
• Construction management plan
4. EASEMENTS. The Developer shall grant the City easements for public water main and
public sidewalks in the form attached hereto as Exhibits A and B.
6. EROSION CONTROL. Prior to initiating construction, the Erosion Control Plan shall be
implemented by the Developer and inspected and approved by the City. The City may impose additional
reasonable erosion control obligations if they would be beneficial. 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, the City may take such action as it deems appropriate to control erosion. 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
reasonable cost the City incurred for such work within ten (10) business days of receipt of notice thereof, the
City may draw on the security to pay such costs. With respect to the Subject Property, no development or
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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.
6. 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.
7, CONSTRUCTION ACCESS. Construction traffic access and egress must be in accordance
with the Construction Management Plan.
8. 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 am. 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 reasonable discretion and at the Developer's expense, 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.
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9. 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.
10. TIME OF PERFORMANCE. The Developer shall install all required Public Improvements by
December 31, 2018.
11. 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.
12. 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, 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.
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
Improvements, the Developer shall furnish the City with a cash escrow ("security") for $75,000. The secuirty
may be drawn down only In the event of a default or as otherwise set forth herein. This breakdown is for
historical reference; it is not a restriction on the use of the security. The City may draw down the security, on
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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 without notice. 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 security is provided as required herein, and the Public Improvements are
accepted by the City Council, at which time the retainage and any remaining security shall be returned to
Developer. 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 and acceptance by City Council.
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 retalnage may be used to pay for warranty work, if
required. The City's standard specifications for utility construction identify the procedures for final acceptance
of utilities.
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15. SPECIAL PROVISIONS.
A, Developer shall comply with the requirements in the Director of Engineering's
memorandum dated October 19, Revised October 23, 2017 which is on file with the City.
B. Upon completion of the water main the City will reimburse the Developer $13,000 for
oversizing the water main.
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 public improvements, including but not limited to legal,
planning, engineering and Inspection expenses incurred in connection with approval and development of the
Subject Property and review of any other plans,
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 initial installation of Public Improvements (but excluding the
maintenance of such Public Improvements, which shall be the responsibility of City). 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. In the event the City Is successful in litigation to enforce the terms of this Agreement,
the unsuccessful party shall reimburse the succeeding party for costs incurred in litigation and subsequent
enforcement of this Agreement, including reasonable engineering and attorneys' fees.
, D. 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.
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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 upon the Subject Property, including lots sold to third parties.
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 shalt 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
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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
the policy on a primary and noncontributory basis, and the Developer and contractors shall file with the City
a certificate evidencing coverage. The certificate shall provide that the City must be given 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 jf the Developer
sells one or more lots, the entire Subject Property, or any part of it.
K. 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 Subject Property.
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L. 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.
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 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 ten (10) business days in
advance. This Agreement Is a license for the City to act, and it shall not be necessary for the 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.
19. 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 mall at the
following address: do Simon Property Group, 225 W. Washington Street, Indianapolis, Indiana 46204,
Attention: Vice President - Development. 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 mall in care of the City Manager at the
following address: Edina City Hall, 4801 W. 50h Street, Edina, Minnesota 55424-1330.
(The remainder of this page has been Intentionally left blank.
Signature pages follow]
195196v1 9
Scott Neal, Cit
STATE OF MINNESOTA
COUNTY OF HENNEPIN
Th _ I 24- i The foregoing Instrument was acknowledged before me this q r. day of "t C o
20 fr, by James Hovland and by Scott Neal, respectively the Mayor and City Manager of the City of Edina,
a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its
City Council.
)ss,
)
SHARON M. ALLISON
Notary PubIto-Minnesota Commit...Ion &Oman 31,2020
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DEVELOPER:
SOUTRDALE c LLC
BY: I'd
Name:
Title: John Ruh!
President or Malls — Chief
Administrative Officer
STATE OF INDIANA
)ss.
COUNTY OF MARION
The foregoing Instrument was acknowledged betore me this day of Febe pc1;9 ,
2018, by Woh h a uil \ , the ijOGS'avrvIr Yhot tI S of SOUTHD LE
CENTER, LLC, a Delaware limited liability company on bell, f of the c mpan
No—AR IUBLIC —1—coo•Ainc,L. S. c:t \I)C41(7,\.
eOrei ten i Ss ; ckr• CIGgirv.4..s 65/36/aQiilc it r 1
CO LArv1, Ok V2es‘clne . QOVN n S d\-N3
DRAFTED BY:
CAMPBELL, KNUTSON, P.A.
860 Blue Gentian Road, Suite 290
Eagan, MN 55121
Telephone: 651-452-5000
[RNIK]
195796v1 11
EXHIBIT C
TO
SITE IMPROVEMENT PERFORMANCE AGREEMENT
Subject Property Description
(Attached)
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EXHIBIT C INDICATES
PROJECT LIMITS 0 60' 120'
West 66th Street
tililtlth
PROJECT LIMITS
3.5 ACRES
CJ.
SIMON"
225 W. Washington Street
Indianapolis, IN 46204
Southdale Center
Edina, MN
DRAWN BY . ASSEIONYN POYNTERO
CORP NO.
5269
GREET NO.
EX C PRINTED 02/0712018 @ 03:90:15 PM