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HomeMy WebLinkAbout29701111 I I II I I II II I I I II II Doc No A10570960 Certified, filed and/or recorded on Jul 9, 2018 12:57 PM Office of the County Recorder Hennepin County, Minnesota Martin McCormick, County Recorder Mark Chapin, County Auditor and Treasurer Deputy 130 Pkg ID 1709478E Document Recording Fee $46.00 Document Total $46.00 This cover sheet is now a permanent part of the recorded document. I I Doc No T05542968 Certified, filed and/or recorded on Jun 29, 2018 10:35 AM Office of the Registrar of Titles Hennepin County, Minnesota Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 55 Pkg ID 1706471E Document Recording Fee $46.00 Multiple Certificates Affected Fee $20.00 Document Total $66.00 Existing Certs 1457889, 1461029 This cover sheet is now a permanent part of the recorded document. (reserved for recording information) DEVELOPMENT CONTRACT CITY OF EDINA 4404 & 4416 VALLEY VIEW ROAD AND 6108, 6112, 6116 AND 6120 KELLOGG AVENUE AGREEMENT dated lune. It', 2018, by and between the CITY OF EDINA, a Minnesota municipal corporation ("City") and Edina Flats L. L. C., 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 set forth on Exhibit A (hereinafter referred to as the "Subject Property"). B. Contingent upon the authorization by the Metropolitan Council of a Comprehensive Plan amendment, the City has rezoned the Subject Property to PCD-1, Planned Commercial Development. A Development Contract is required. 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) The City Council has approved the conditional use permit to allow multi-family residential uses and building setbacks and height variances for the Subject Property; 2) This Agreement has been fully executed by both parties and filed with both the City Clerk and the Hennepin 197964v1 County Recorder's Office; 3) The required security has been received by the City; 4) The required insurance has been received by the City; and 5) The Metropolitan Council has authorized the City to adopt a comprehensive plan amendment. 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: Final Civil Plans dated February 13, 2018 prepared by Larson Engineering, Inc. (MJW) Final Landscaping Plan dated March 9, 2018 prepared by Oslund & Associates Prior to the Developer's initiating construction, Developer will submit final construction drawings for the work for the City's review and approval. Following the City's approval of those final construction drawings, the term "Plans" as used in this Agreement will include the approved final construction drawings and in the event of a conflict between the approved final construction drawings and the above referenced Development Plans, the approved final construction drawings will control. The Developer may request changes to the Plans. For Plan changes deemed minor, 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. The City may impose additional 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 2 197964v1 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 thirty (30) days of receipt of notice thereof, the City may draw on the letter of credit to pay any costs. No development or utility construction will be allowed on the Subject Property and no building permits will be issued for the Subject Property 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 (a) all work permitted to be performed by the City under this Agreement, and (b) all inspections deemed appropriate by the City in conjunction with site development. 6. CONSTRUCTION ACCESS. Construction traffic access and egress must be in accordance with the Traffic Management Plan. 7. IMPROVEMENTS. The Developer shall construct the following public improvements: Plaza, sidewalks, curbs and hydrants as described in the Public Improvement Plans (the "Public Improvements). The Developer, its successors and assigns shall maintain the Private Improvements in perpetuity. The Public Improvements and Private Improvements shall be installed in accordance with City standard specifications and ordinances and the Plans. 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. The Plans for Private and Public Improvements 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 complies with City standard specifications and ordinances and the Plans as a condition of City acceptance. In addition, the City may, at the City's 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 reasonable 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 3 197964v1 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 Private and 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 requirements (the "Record Drawings"). 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. 9. TIME OF PERFORMANCE. The Developer shall install the Public Improvements by June 1, 2020. 10. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from the construction work by the Developer, subcontractors, their agents or assigns. Prior to any construction on 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 Engineer, the Public Improvements shall become City property without further notice or action. Prior to acceptance of the Public 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. 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 Public Improvements and before the 4 197964v1 security is released, the Developer shall supply the City with a complete set of reproducible Record Drawings as described in Section 7. The City's standard specifications for utility construction identify the procedures for final acceptance of utilities. 12. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. The Developer shall pay for in-house engineering administration. City 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. 13. SECURITY REQUIREMENTS. To guarantee compliance with the terms of this Agreement, payment of the costs of all Public Improvements, and construction of all Public Improvements in accordance • with the Plans, the Developer shall, before the Developer may proceed with the construction of the Public Improvements, furnish the City with a cash escrow or letter of credit in the form attached hereto, from a bank for Eighty Thousand Five Hundred ($80,500.00) Dollars, plus a cash fee of Two Thousand Five Hundred ($2,500.00) Dollars for City engineering administration (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, to cure any violation of the terms of this Agreement which is not cured within said five (5) business day period. If the Public Improvements are not completed and accepted by the City 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 a portion of the Public Improvements 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 set forth in Section 14 below), and the Public Improvements are accepted by the City Engineer. The City's standard specifications for utility and street construction outline procedures 5 197964v1 for security reductions. If the City has not previously drawn on the Security in accordance with the preceding sentence, then, upon the Developer's satisfaction of the conditions precedent to the City Engineer's acceptance of the Public Improvements, the City Engineer's acceptance of the Public Improvements in accordance with this Agreement, and the Developer's delivery of the maintenance bonds or other security as described in Section 14, the City shall return the Security to the Developer. 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 Engineer. 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. 15. SPECIAL PROVISIONS. The Developer shall comply with City Resolution 2018-26 and the Engineering Department Development Review Memorandum dated September 20, 2017. 16. RESPONSIBILITY FOR COSTS. A. The Developer shall pay all reasonable costs incurred by it or the City in conjunction with the installation of the Public Improvements, including but not limited to legal, planning, engineering And inspection expenses incurred in connection therewith, the preparation of this Agreement, and the review of any other plans and documents related thereto, B. Except in the case of the negligence or willful misconduct of the City or its officers, employees, and agents, 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 installation of the 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 attorneys' fees. 6 197964v1 C. In the event the City is successful in litigation to enforce the terms of this Agreement, the Developer shall reimburse the City 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. 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 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 Developer, its contractors, subcontractors, material men, employees, agents, or third parties. 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. 7 197964v1 F. This Agreement shall run with the Subject Property and may be recorded against the title to the Subject Property. . 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 One Hundred Thousand ($100,000.00) Dollars for one person and One Million ($1,000,000.00) Dollars for each occurrence; limits for property damage shall be not less than Two Hundred Thousand ($200,000.00) Dollars for each occurrence; or a combination single limit policy of One Million ($1,000,000.00) Dollars 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 at least 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 One Hundred Thousand ($100,000.00) Dollars 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 8 197964v1 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. 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 for and the halting of all work on, the Subject Property. • L. The Developer represents to the City that the Public Improvements 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 Public Improvements do not comply, the City may, at its option, refuse to allow construction or development work on the Subject Property 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 thirty (30) 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 mail at the 9 197964vI following address: Edina Flats LLC, 3918 Sunnyside Rd, Edina, MN 55424. 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. 50" Street Edina, Minnesota 55424- 1330, [The remainder of this page has been intentionally left blank. Signature pages follow.] 10 197964v1 el t NOTARY PUBLIC Scott Neal, City anager STATE OF MINNESOTA )ss. COUNTY OF HENNEPIN ) The foregoing instrument was 2018, by James Hovland and by Scott a Minnesota municipal corporation, on City Council. acknowledged before me this day o Neal, respectively the Mayor and City Manager o City of Edina, behalf of the corporation and pursuant to the autho y granted by its DEBRA A MANGER COMM. #6107578 Notary Public . Slate of Minnesota "Commission t/3112020 197964v1 11 DEVELOPER: Edina Flats LLC Title: PI-e.sk1/441 STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) Th foregoing instrument was acknowledgesil before me this 1)111 day o 2018, by J itKleivvk , the fiCHIEA.Jr of Edinak4FLI—lats LLC, a Minnesota limited liability comp ny, on behalf of the limited liability company. DOLLY J PETERSON NOTARY PUBLIC • MINNESOTA MY COMMISSION EXPIRES 01131120 DRAFTED BY: CAMPBELL KNUTSON, P.A. 860 Blue Gentian Road, Suite 290 Eagan, MN 55121 Telephone: 651-452-5000 [RNK] 197964v[ 12 Exhibit A Legal Description Hennepin County PID No: Property Address: Legal Description: 19.028.24.42.0061 4416 Valley View Road Lot 9, Block 21, Fairfax Hennepin County, Minnesota 19.028.24.42.0060 4416 Valley View Road Lot 8, Block 21, Fairfax Hennepin County, Minnesota A portion of 19.028.24.43.0119 4420 Valley ViewRoad Lot 7, Block 21, Fairfax Hennepin County, Minnesota 19.028.24.43.0076 4404 Valley View Road Lots 11 and 12, Block 22, Fairfax Hennepin County, Minnesota 19.028.24.43.0058 6120 Kellogg Avenue Lot 6, Block 21, Fairfax Hennepin County, Minnesota 19.028.24.43.0057 6116 Kellogg Avenue Lot 5, Block 21, Fairfax Hennepin County, Minnesota 19.028.24.43.0056 6112 Kellogg Avenue Lot 4, Block 21, Fairfax Hennepin County, Minnesota 19,028.24.43.0055 6108 Kellogg Avenue Lot 3,13Lock 21, Fairfax Hennepin County, Minnesota 13 197964v1 PREMIER B,QNK MINN SOT JOftPey D. Hatton Its: Executive Vice President MORTGAGE CONSENT TO DEVELOPMENT CONTRACT PREMIER BANK MINNESOTA, a Minnesota corporation, as mortgagee under that certain (i) Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents from Edina Flats L. L. C., a Minnesota limited liability company, as mortgagor, to the undersigned, as mortgagee, dated April 4, 2018 and recorded in the Office of the Registrar of Titles, Hennepin County, Minnesota on April 5, 2018 as Document No. T05521569 and recorded in the Office of the County Recorder, Hennepin County, Minnesota on April 5, 2018 as Document No. A10541506' and (H) Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents from Edina Flats L. L. C., a Minnesota limited liability company, as mortgagor, to the undersigned, as mortgagee, dated April 4, 2018 and recorded in the Office of the Registrar of Titles, Hennepin County, Minnesota on April 5, 2018 as Document No. T05521570 and recorded in the Office of the County Recorder, Hennepin County, Minnesota on April 5, 2018 as Document No. A10541507 hereby consents to the Development Contract to which this Consent is attached (the "Development Contract"), and agrees that in the event of the foreclosure of any of the above-described Mortgages, the same shall be sold subject to the Development Contract. Dated this A fly — day of June, 2018. STATE OF MINNESOTA ) )ss. COUNTY OF VIewle?)n ) The foregoing instrument was acknowledged before me this \ 2-4+1 day of June, 2018, by Jeffrey D. Hatton, the Executive Vice President of Premier Bank Minnesota, a Minnesota corporation, on behalf of said corporation. NetARY PUBLIC SAMANTHA LOUISE WITTSTRUCK Notary Public State of Minnesota My Commission Expires January 3L 2019 14 1979641 PREMIER BANK MINNESqTA—. y n. Hatton Its: Executive Vice President - 011 szy SAMANTHA LOUISE WITOMICK % Notary Public ) State M of MinnesotaJu J Commission Exires 4_,Jul January 31, 201p9 MORTGAGE CONSENT TO DEVELOPMENT CONTRACT PREMIER BANK MINNESOTA, a Minnesota corporation, as mortgagee under that certain (i) Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents from Edina Flats L. L. C., a Minnesota limited liability company, as mortgagor, to the undersigned, as mortgagee, dated April 4, 2018 and recorded in the Office of the Registrar of Titles, Hennepin County, Minnesota on April 5, 2018 as Document No. 705521569 and recorded in the Office of the County Recorder, Hennepin County, Minnesota on April 5, 2018 as Document No. A10541506. and (11) Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents from Edina Flats L. L. C., a Minnesota limited liability company, as mortgagor, to the undersigned, as mortgagee, dated April 4, 2018 and recorded in the Office of the Registrar of Titles, Hennepin County, Minnesota on April 5, 2018 as Document No. T05521570 and recorded in the Office of the County Recorder, Hennepin County, Minnesota on April 5, 2018 as Document No. A10541507, hereby consents to the Development Contract to which this Consent Is attached (the "Development Contract"), and agrees that in the event of the foreclosure of any of the above-described Mortgages, the same shall be sold subject to the Development Contract. m eh Dated this — day of June, 2018. STATE OF MINNESOTA ) )ss. COUNTY OF \\ennr?iv\) The foregoing instrument was acknowledged before me this 2kti‘ day of June, 2018, by Jeffrey D. Hatton, the Executive Vice President of Premier Bank Minnesota, a Minnesota corporation, on behalf of said corporation. NOTARY PUBLIC 14 197964v1 Aeia• Premier rime Bank ENID Minnesota Who we are. Where we've been. Where we're destined. We travel together. Donald B. Regan Chairman IRREVOCABLE LETTER OF CREDIT Irrevocable Letter of Credit No. 1804 Date: June 15, 2018 TO: City of Edina 4801 W. 50th Street Edina, Minnesota 55424-1330 Dear Sir or Madam: We hereby issue, for the account of Edina Flats L. L. C., a Minnesota limited liability company and in your favor, our Irrevocable Letter of Credit in the amount of $80,500.00, 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, 1804, dated June 15, 2018 of PREMIER BANK MINNESOTA'" b) State that Edina Flats L. L. C. is in default, beyond any applicable notice and cure periods, under that certain Development Contract between the City of Edina and Edina Flats L. L. C.; c) Be signed and sworn to by the City Manager or Finance Director of the City of Edina; and d) Be presented for payment at 101 East 10th Street, Hastings, Minnesota 55033 on or before 4:00 p.m. on June 15, 2019. This Letter of Credit shall expire on June 15, 2019, but will automatically renew for successive one-year terms unless, at least forty-five (45) days prior to the next annual renewal date (which shall be June 15 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. Mali, at least forty-five (45) days prior to the next annual renewal date addressed as follows: Edina City Manager, Edina City Hall, 4801 W. 50II, 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. The amount of this Letter of Credit may be reduced in accordance with the Development Contract. 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. PREMIER BARKyINNESOTA Casey 0. Regan Its President and CEO ALBERTVILLE • BLOOMINGTON • FARIBAULT • FARMINGTON • HASTINGS • MONTICELLO • NORTHFIELD • OWATONNA raaraeaa www.premlerbanks.com (reserved for recording information) DEVELOPMENT CONTRACT CITY OF EDINA 4404 & 4416 VALLEY VIEW ROAD AND 6108, 6112, 6116 AND 6120 KELLOGG AVENUE AGREEMENT dated .3 unt AM., 2018, by and between the CITY OF EDINA, a Minnesota municipal corporation ("City") and Edina Flats L. L. C., 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 set forth on Exhibit A (hereinafter referred to as the "Subject Property"). B. Contingent upon the authorization by the Metropolitan Council of a Comprehensive Plan amendment, the City has rezoned the Subject Property to PCD-1, Planned Commercial Development. A Development Contract is required. 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) The City Council has approved the conditional use permit to allow multi-family residential uses and building setbacks and height variances for the Subject Property; 2) This Agreement has been fully executed by both parties and filed with both the City Clerk and the Hennepin 1 197964v1 County Recorder's Office; 3) The required security has been received by the City; 4) The required insurance has been received by the City; and 5) The Metropolitan Council has authorized the City to adopt a comprehensive plan amendment. 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: Final Civil Plans dated February 13, 2018 prepared by Larson Engineering, Inc. (MJW) Final Landscaping Plan dated March 9, 2018 prepared by Oslund & Associates Prior to the Developer's initiating construction, Developer will submit final construction drawings for the work for the City's review and approval. Following the City's approval of those final construction drawings, the term "Plans" as used in this Agreement will include the approved final construction drawings and in the event of a conflict between the approved final construction drawings and the above referenced Development Plans, the approved final construction drawings will control. The Developer may request changes to the Plans. For Plan changes deemed minor, 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. The City may impose additional 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 2 197964v1 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 thirty (30) days of receipt of notice thereof, the City may draw on the letter of credit to pay any costs. No development or utility construction will be allowed on the Subject Property and no building permits will be issued for the Subject Property 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 (a) all work permitted to be performed by the City under this Agreement, and (b) all inspections deemed appropriate by the City in conjunction with site development. 6. CONSTRUCTION ACCESS. Construction traffic access and egress must be in accordance with the Traffic Management Plan. 7. IMPROVEMENTS. The Developer shall construct the following public improvements: Plaza, sidewalks, curbs and hydrants as described in the Public Improvement Plans (the "Public Improvements). The Developer, its successors and assigns shall maintain the Private Improvements in perpetuity. The Public Improvements and Private Improvements shall be installed in accordance with City standard specifications and ordinances and the Plans. 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. The Plans for Private and Public Improvements 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 complies with City standard specifications and ordinances and the Plans as a condition of City acceptance. In addition, the City may, at the City's 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 reasonable 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 3 197964v1 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 Private and 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 requirements (the "Record Drawings"). 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. 9. TIME OF PERFORMANCE. The Developer shall install the Public Improvements by June 1, 2020. 10. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from the construction work by the Developer, subcontractors, their agents or assigns. Prior to any construction on 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 Engineer, the Public Improvements shall become City property without further notice or action. Prior to acceptance of the Public 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. 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 Public Improvements and before the 4 197964v1 security is released, the Developer shall supply the City with a complete set of reproducible Record Drawings as described in Section 7. The City's standard specifications for utility construction identify the procedures for final acceptance of utilities. 12. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. The Developer shall pay for in-house engineering administration. City 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. 13. SECURITY REQUIREMENTS. To guarantee compliance with the terms of this Agreement, payment of the costs of all Public Improvements, and construction of all Public Improvements in accordance with the Plans, the Developer shall, before the Developer may proceed with the construction of the Public Improvements, furnish the City with a cash escrow or letter of credit in the form attached hereto, from a bank for Eighty Thousand Five Hundred ($80,500.00) Dollars, plus a cash fee of Two Thousand Five Hundred ($2,500.00) Dollars for City engineering administration (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, to cure any violation of the terms of this Agreement which is not cured within said five (5) business day period. If the Public Improvements are not completed and accepted by the City 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 a portion of the Public Improvements 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 set forth in Section 14 below), and the Public Improvements are accepted by the City Engineer. The City's standard specifications for utility and street construction outline procedures 5 197964v1 for security reductions. If the City has not previously drawn on the Security in accordance with the preceding sentence, then, upon the Developer's satisfaction of the conditions precedent to the City Engineer's acceptance of the Public Improvements, the City Engineer's acceptance of the Public Improvements in accordance with this Agreement, and the Developer's delivery of the maintenance bonds or other security as described in Section 14, the City shall return the Security to the Developer. 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 Engineer. 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. 15. SPECIAL PROVISIONS. The Developer shall comply with City Resolution 2018-26 and the Engineering Department Development Review Memorandum dated September 20, 2017. 16. RESPONSIBILITY FOR COSTS. A. The Developer shall pay all reasonable costs incurred by it or the City in conjunction with the installation of the Public Improvements, including but not limited to legal, planning, engineering and inspection expenses incurred in connection therewith, the preparation of this Agreement, and the review of any other plans and documents related thereto. B. Except in the case of the negligence or willful misconduct of the City or its officers, employees, and agents, 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 installation of the 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 attorneys' fees. 6 197964v1 C. In the event the City is successful in litigation to enforce the terms of this Agreement, the Developer shall reimburse the City 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. 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 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 Developer, its contractors, subcontractors, material men, employees, agents, or third parties. 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. 7 197964v1 F. This Agreement shall run with the Subject Property and may be recorded against the title to the Subject Property. . 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 One Hundred Thousand ($100,000.00) Dollars for one person and One Million ($1,000,000.00) Dollars for each occurrence; limits for property damage shall be not less than Two Hundred Thousand ($200,000.00) Dollars for each occurrence; or a combination single limit policy of One Million ($1,000,000.00) Dollars 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 at least 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 One Hundred Thousand ($100,000.00) Dollars 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 8 197964y1 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 Developers 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. 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 for and the halting of all work on, the Subject Property. L. The Developer represents to the City that the Public Improvements 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 Public Improvements do not comply, the City may, at its option, refuse to allow construction or development work on the Subject Property 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 thirty (30) 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 mail at the 9 l97964v1 following address: Edina Flats LLC, 3918 Sunnyside Rd, Edina, MN 55424. 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. 50'h Street, Edina, Minnesota 55424- 1330. [The remainder of this page has been intentionally left blank. Signature pages follow.] 10 197964v1 CITY OF EDI AND Scott Neal, City anager acknowledged before me this day of 71/ LE_ , Neal, respectively the Mayor and City Manager of h City of Edina, behalf of the corporation and pursuant to the autho y granted by its NOTARY PUBLIC STATE OF MINNESOTA )ss. COUNTY OF HENNEPIN ) The foregoing instrument was 2018, by James Hovland and by Scott a Minnesota municipal corporation, on City Council. DEBRA A !HNSEN COMM. #61A 07578 Notary Public State of Minnesota Commission &ires 7/312020 197964v 1 11 I NOTARY PUBL day o of Edina Flats LLC, a DEVELOPER: Edina Flats LLC STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) Th foregoingnstrument was acknowledged) before me this 2018, by OirAlit itrt7ii , the frec-, A Fn Minnesota limited liability company, on behalf of the limited liability company. DOLLY J PETERSON NOTARY PUBLIC • MINNESOTA MY COMMISSION EXPIRES 01/31/20 DRAFTED BY: CAMPBELL KNUTSON, PA. 860 Blue Gentian Road, Suite 290 Eagan, MN 55121 Telephone: 651-452-5000 [RNK] 12 197964v 1 Exhibit A Legal Description Hennepin County PID No: Property Address: Legal Description: 19.028.24.42.0061 4416 Valley View Road Lot 9, Block 21, Fairfax Hennepin County, Minnesota 19.028.24.42.0060 4416 Valley View Road Lot 8, Block 21, Fairfax Hennepin County, Minnesota A portion of 19.028.24.43.0119 4420 Valley View Road Lot 7, Block 21, Fairfax Hennepin County, Minnesota 19.028.24.43.0076 4404 Valley View Road Lots 11 and 12, Block 22, Fairfax Hennepin County, Minnesota 19.028.24.43.0058 6120 Kellogg Avenue Lot 6, Block 21, Fairfax Hennepin County, Minnesota 19.028.24.43.0057 6116 Kellogg Avenue Lot 5, Block 21, Fairfax Hennepin County, Minnesota 19.028.24.43.0056 6112 Kellogg Avenue Lot 4, Block 21, Fairfax Hennepin County, Minnesota 19.028.24.43.0055 6108 Kellogg Avenue Lot 3, Block 21, Fairfax Hennepin County, Minnesota 13 197964y1 PREMIER BANK MINNESOTA ey D. Hatton Its: Executive Vice President MORTGAGE CONSENT TO DEVELOPMENT CONTRACT PREMIER BANK MINNESOTA, a Minnesota corporation, as mortgagee under that certain (i) Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents from Edina Flats L. L. C., a Minnesota limited liability company, as mortgagor, to the undersigned, as mortgagee, dated April 4, 2018 and recorded in the Office of the Registrar of Titles, Hennepin County, Minnesota on April 5, 2018 as Document No. T05521569 and recorded in the Office of the County Recorder, Hennepin County, Minnesota on April 5, 2018 as Document No. A10541506. and (H) Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents from Edina Flats L. L. C., a Minnesota limited liability company, as mortgagor, to the undersigned, as mortgagee, dated April 4, 2018 and recorded in the Office of the Registrar of Titles, Hennepin County, Minnesota on April 5, 2018 as Document No. T05521570 and recorded in the Office of the County Recorder, Hennepin County, Minnesota on April 5, 2018 as Document No. A10541507 hereby consents to the Development Contract to which this Consent is attached (the "Development Contract"), and agrees that in the event of the foreclosure of any of the above-described Mortgages, the same shall be sold subject to the Development Contract. Dated this day of June, 2018. STATE OF MINNESOTA ) )ss. COUNTY OF 11—)1111 ) The foregoing instrument was acknowledged before me this \ day of June, 2018, by Jeffrey D. Hatton, the Executive Vice President of Premier Bank Minnesota, a Minnesota corporation, on behalf of said corporation. / / 7 NOTARY PUBLIC t ., '"l3 44 SAMANTHA LOUISE WITISTRUCK I :it - 9 i State of Minnesota Notary Public . - I My Commission Expires ' 3 i • January 31,2019 197964v1 14 Jeff( y . Hatton MORTGAGE CONSENT TO DEVELOPMENT CONTRACT PREMIER BANK MINNESOTA, a Minnesota corporation, as mortgagee under that certain (i) Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents from Edina Flats L. L. C., a Minnesota limited liability company, as mortgagor, to the undersigned, as mortgagee, dated April 4, 2018 and recorded in the Office of the Registrar of Titles, Hennepin County, Minnesota on April 5, 2018 as Document No. T05521569 and recorded in the Office of the County Recorder, Hennepin County, Minnesota on April 5, 2018 as Document No. A10541506- and (ii) Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents from Edina Flats L. L. C., a Minnesota limited liability company, as mortgagor, to the undersigned, as mortgagee, dated April 4, 2018 and recorded in the Office of the Registrar of Titles, Hennepin County, Minnesota on April 5, 2018 as Document No. T05521570 and recorded in the Office of the County Recorder, Hennepin County, Minnesota on April 5, 2018 as Document No. A10541507, hereby consents to the Development Contract to which this Consent is attached (the "Development Contract"), and agrees that in the event of the foreclosure of any of the above-described Mortgages, the same shall be sold subject to the Development Contract. Dated this LY day of June, 2018. PREMIER BANK MINNESOTA Its: Executive Vice President STATE OF MINNESOTA ) )ss. COUNTY OF v\enn,- v\> The - The foregoing instrument was acknowledged before me this \ 2 day of June, 2018, by Jeffrey D. Hatton, the Executive Vice President of Premier Bank Minnesota, a Minnesota corporation, on behalf of said corporation. NOTARY PUBLIC 1979641 \N) SAMANTHA LOUISE WITTSTRUCK Notary Public r. State of Minnesota 14 ) My Commission Expires January 31, 2019 • PREMIER NNESOTA BY: Casey 0. Regan Its President and CEO Premier Bank Minnesota Who we are. Where we've been. Where we're destined. We travel together. Donald B. Regan Chairman IRREVOCABLE LETTER OF CREDIT Irrevocable Letter of Credit No. 1804 Date: June 15, 2018 TO: City of Edina 4801 W. 50th Street Edina, Minnesota 55424-1330 Dear Sir or Madam: We hereby issue, for the account of Edina Flats L. L. C., a Minnesota limited liability company and in your favor, our Irrevocable Letter of Credit in the amount of $80,500.00, 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. 1804, dated June 15, 2018, of PREMIER BANK MINNESOTA"; b) State that Edina Flats L. L. C. is in default, beyond any applicable notice and cure periods, under that certain Development Contract between the City of Edina and Edina Flats L. L. C.; c) Be signed and sworn to by the City Manager or Finance Director of the City of Edina; and d) Be presented for payment at 101 East 10th Street Hastings, Minnesota 55033 on or before 4:00 p.m. on June 15, 2019. This Letter of Credit shall expire on June 15, 2019, but will automatically renew for successive one-year terms unless, at least forty-five (45) days prior to the next annual renewal date (which shall be June 15 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 56424-1330, 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. The amount of this Letter of Credit may be reduced in accordance with the Development Contract. 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. ALBERTVILLE • BLOOMINGTON • FARIBAULT • FARMINGTON • HASTINGS • MONTICELLO • NORTHFIELD • OWATONNA www.premierbanks.com MEMafO FDIC