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HomeMy WebLinkAbout2016-059 Council ResolutionCITY OF LINO LAKES RESOLUTION NO. 16-59 RESOLUTION APPROVING A SITE IMPROVEMENT PERFORMANCE AGREEMENT WITH ARNT CONSTRUCTION COMPANY, INC (INTERIM USE PERMIT FOR TEMPORARY BATCH PLANT) WHEREAS, the City has completed the review of the interim use permit application for a temporary batch plant to be located at 2209 Phelps Road; and WHEREAS, Section 1007.046(3)(1) of the Lino Lakes Zoning Ordinance requires the operator and property owner enter into a Performance Agreement with the City, and financial sureties be posted prior to any site disturbance. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lino Lakes that the Site Improvement Performance Agreement between the City of Lino Lakes and Arnt Construction Company, Inc. is hereby approved, and the Mayor and City Clerk are authorized to execute such agreements on behalf of the City. Adopted by the Council of the City of Lino Lakes this 27th day of June, 2016. The motion for the adoption of the foregoing resolution was introduced by Council Member Rafferty and was duly seconded by Council Member Kusterman and upon vote being taken thereon, the following voted in favor thereof: Rafferty, Kusterman, Manthey, Reinert The following voted against same: none (Absent - Maher) ATTEST: CITY OF LINO LAKES, MINNESOTA SITE IMPROVEMENT PERFORMANCE AGREEMENT THIS AGREEMENT made this day of , 2016, is by and between the City of Lino Lakes, a municipal corporation organized under the laws of the State of Minnesota, and Arnt Construction Company, Inc. (Developer). WHEREAS, the Developer has received approval of Site Development Plans, hereinafter called the "Plans", by the City of Lino Lakes on the 6th day of June, 2016, and in accordance with the Plans all of which are made a part hereof by reference. In consideration of such approval, the Developer, its successors and assigns, does covenant and agree to perform the work as set forth in the Plans, in the aforesaid approval, and as hereinafter set forth upon the real estate (hereinafter referred to as "Property") located at 2190 Phelps Road, Lino Lakes, MN 55038. NOW, THEREFORE, in consideration of the mutual promises of the parties made herein, IT IS AGREED BY AND BETWEEN THE PARTIES HERETO: I. DESIGNATION OF IMPROVEMENTS. �-' A. Improvements on the project site to be installed at the Developer's expense by the Developer as hereinafter provided are hereinafter referred to as "On-site Work". B. Improvements off the project site to be installed at the Developer's expense, if any, by the Developer as hereinafter provided are hereinafter referred to as "Off -Site Work". C. A Maintenance of Stormwater Facilities Agreement is not required with this project. II. ON-SITE WORK. A. On -Site Work. The On-site Work shall consist of the improvements described in the approved Plans, to include any approved subsequent amendments, and shall be in compliance with all applicable statutes, codes and ordinances of the City. The Work includes a temporary batch plant, such as, but not limited to: traffic control, erosion control, and site restoration. Such improvements shall be completed in accordance with Section IV herein. 2016 20160627 Arnt CUP Batch Plant Site Performance Agreement page 1 of 8 B. Cost Estimates. The Developer shall provide the City with a written estimate of all applicable costs of the On -Site Work, itemized by type; the estimates shall be based upon the actual estimates provided by the contractors who are to do the Work. Said cost estimates shall be reviewed by the City, and the City shall establish the actual amount of the financial guarantee. The description and estimated cost of Developer's On-site Work are as follows: Description of Improvements Estimated Costs 1. Traffic Control $8,500 2. Erosion Control $3,000 3. Roadway Repair $14,500 4. Restoration $3,000 Total Estimated Cost of Developer $29,000 Improvements Security Requirement (Total * 35%) $10,150 III. RECORD DRAWINGS Record drawings are not required for this project. Once the project is complete the applicant shall notify the City Engineer for a final site approval. IV. COMPLETION DATE. The project shall be completed by November 30, 2016 including site restoration. V. GUARANTEE. A. The Developer will fully and faithfully comply with all terms and conditions of any and all contracts entered into by the Developer. Concurrently with the execution hereof by the Developer, the Developer will furnish to, and at all times thereafter maintain with the City, a cash deposit, certified check, or Irrevocable Letter of Credit, based on thirty- five (35%) percent of the total estimated cost of Developer's On-site Work. An Irrevocable Letter of Credit shall be for the exclusive use and benefit of the City of Lino Lakes and shall state thereon that the same is issued to guarantee and assure performance by the Developer of all the terms and conditions of this Development Contract, construction of all required improvements in accordance with the ordinances and specifications of the City and guarantees the workmanship and materials for the site restoration for a period of one year following the City's 2016 20160627 Arnt CUP Batch Plant Site Performance Agreement page 2 of 8 acceptance of the site restoration. The City reserves the right to draw, in whole or in part, on any portion of the Irrevocable Letter of Credit for the purpose of guaranteeing the terms and conditions of this contract, if Developer has been found to be in default of this agreement and only after providing Developer with written notice and opportunity to cure any default. The Irrevocable Letter of Credit shall be automatically extended for additional periods of one year from present or future expiration dates unless sixty (60) days prior to such the City Clerk or Administrator is notified in writing by certified mail or overnight mail that the Letter of Credit will not be renewed. B. Upon written request, The City will grant a reduction of the Letter of Credit, or cash deposit based on prepayment or the value of the completed improvements at the time of the requested reduction. The Developer may make such requests three times throughout the life of this agreement, with the third and/or fmal request being at the completion of the project. The City will respond to such request within 30 days time. Prior to the final acceptance of the Developer's Improvements the City shall require a Letter of Credit or Cash Escrow to cover the warranty provisions of the agreement. The amount shall be agreed to by the City Engineer and Developer and Developer may use the Letter of Credit discussed in Section V.A above. VI. REIMBURSEMENT OF COSTS. A. The Developer agrees to establish a non-interest bearing escrow account with the City in an amount established by the City Engineer or his designee for the payment of all City fees and costs incurred by the City related to the On-site Work, including, but not limited to, the following: 1. Site Plan Review Fee $1,500 2. Administration (Legal, Engineering, Planning, and Contract administration) $7,000 Total Estimated (Budget) Costs for Escrow Account $8,500 B. If it appears that the actual costs incurred will exceed the estimate or that the actual costs incurred will be less than the estimate, then Developer and City shall review the costs required to complete the project. In such case, if the actual costs exceed the estimate, then Developer shall promptly pay the additional sums to the City to pay for the agreed upon increase. However, in such case where the actual costs are less than the estimate, the City shall promptly reimburse to Developer any amounts overpaid by the Developer. The Developer may request a statement of the account each month for review. C. Intentionally Deleted. 2016 20160627 Arnt CUP Batch Plant Site Performance Agreement page 3 of 8 VII. REMEDIES FOR BREACH A. The City shall give prior written notice to the Developer of any default hereunder before proceeding to enforce such financial guarantee or before the City undertakes any work for which the City will be reimbursed through the financial guarantee. If within twenty (20) days after receipt of such written notice to it, the Developer has not notified the City by stating in writing the manner in which the default will be cured and the time within which such default will be cured, the City will proceed with the remedy it deems reasonably appropriate. B. At any time after the completion date and any extensions thereof, if any of the work is deemed incomplete, the City may proceed in any one or more of the following ways to enforce the undertakings herein set forth, and to collect any and all expenses reasonably incurred by the City in connection therewith, including, but not limited to, engineering, legal, planning and litigation costs and expense. The enumeration of the remedies hereunder shall be in addition to any other remedies available to the City. 1. Specific Performance. The City may in writing direct the surety or the Developer to cause the Work to be undertaken and completed within a specified reasonable time. If the Developer fails to cause the Work to be done and completed in a manner and time reasonably acceptable to the City, the City may proceed to bring an action for specific performance to require work to be undertaken. 2. Completion by the City. The City, after written notice, may enter the premises and proceed to have the Work done either by contract, by day labor or by regular City forces. The Developer may not question the manner of doing such work or the letting of any such contracts for the doing of any such work; provided that all such work is performed in a reasonable manner, the costs are reasonable and the work is completed in a good and workman -like manner and in accordance with the approved plans and specifications. Upon completion of such work, the Developer shall promptly pay the City the full cost thereof as aforesaid. 3. Deposit of Financial Guarantee. In the event the financial guarantee has been submitted in the form of a Letter of Credit, the City may draw on the Letter of Credit the sum equal to the reasonably estimated cost of completing the Work, plus the City's reasonably estimated expenses as defined herein, including any other reasonable costs, expenses, and damages for which the surety may be liable hereunder, but not exceeding the amount set forth on the Letter of Credit. The money shall be deemed to be held by the 2016 20160627 Arnt CUP Batch Plant Site Performance Agreement page 4 of 8 City for the purpose of reimbursing the City for any reasonable costs incurred in completing the Work as hereinafter specified. Any funds remaining after completion of the project shall be promptly returned to the Developer. VIII. OCCUPATION OF PREMISES The Developer agrees that it will not cause to be occupied any portion of the building or improvements to be constructed upon the premises until completion of the building and site improvements as more fully described in the approved plans and following issuance of a Certificate of Occupancy. IX. INSURANCE Developer or its general contractor shall take out and maintain until one year after the City accepted the Developer Improvements, public liability and property damage insurance covering personal injury, including death, and claims for property damage which may arise out of the Developer's or general contractor's work, as the case may be, or the work of its subcontractors or by one directly or indirectly employed by any of them. Limits for bodily injury and death shall be not less than Five Hundred Thousand and no/100 ($500,000.00) Dollars for one person and One Million and no/100 ($1,000,000.00) Dollars for each occurrence; limits for property damage shall be not less then Two Hundred Thousand and no/100 ($200,000.00) Dollars for each occurrence; or a combination single limit policy of One Million and no/100 ($1,000,000.00) Dollars or more. The City, its employees, its agents and assigns shall be named as an additional insured on the policy, and the Developer or its general contractor shall file with the City a certificate evidencing coverage prior to the City signing the plat. The certificate shall provide that the City must be given ten days advance written notice of the cancellation of the insurance. The certificate may not contain any disclaimer for failure to give the required notice. X. REIMBURSEMENT FOR LITIGATION EXPENSES The City and Developer agree that the prevailing party in any litigation pertaining to the enforcement of this Agreement shall be entitled to reimbursement from the non -prevailing party for all reasonable costs incurred by said prevailing party including court costs and reasonable engineering and attorneys' fees. XI. VALIDITY If a portion, section, subsection, sentence, clause, paragraph or phrase in this Agreement is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect or void any of the other provisions of the Site Improvement Performance Agreement. 2016 20160627 Arnt CUP Batch Plant Site Performance Agreement page 5 of 8 XII. GENERAL A. Binding Effect. The terms and provisions hereof shall be binding upon and inure to the benefit of the heirs, representatives, successors and assigns of the parties hereto and shall be binding upon all future owners of all or any part of the Property and shall be deemed covenants running with the land. D. Notices. Whenever in this Agreement it shall be required or permitted that notice or demand be given or served by either party to this Agreement to or on the other party, such notice or demand shall be delivered personally or (i) mailed by United States mail by certified mail (return receipt requested)or (ii) sent by nationally recognized overnight carrier to the addresses hereinbefore set forth on Page 1 . Such notice or demand shall be deemed timely given when delivered personally or when deposited in the mail or the overnight carrier in accordance with the above. The addresses of the parties hereto are as set forth on Page 1 until changed by notices given as above. E. Incorporation by Reference. All plans, special provisions, proposals, specifications and contracts for the improvements furnished and let pursuant to this Agreement shall be and hereby are made a part of this Agreement by reference as fully as if set out herein in full. F. Hours of Construction Activity. All construction activity shall be limited to the hours set out as follows: Monday through Friday 7:00 a.m. to 7:00 p.m. Saturday 9:00 a.m. to 5:00 p.m. Sunday and Holidays No working hours allowed XIII. VIOLATIONSBUILDING PERMITS In the event that Developer violates any of the covenants and agreements contained in this Site Improvement Performance Agreement and to be performed by the Developer, the City, at its option, and after providing written notice and opportunity to cure to Developer in addition to the rights and remedies as set out hereunder may refuse to issue building permits to any property within the development and/or stop building construction within the development until such time as such default has been corrected to the satisfaction of the City. 2016 20160627 Arnt CUP Batch Plant Site Performance Agreement page 6 of 8 DEVELOPER CITY OF LINO LAKES By Developer Mayor ATTEST: By City Clerk STATE OF MINNESOTA ) ) SS ) COUNTY OF ANOKA This instrument was acknowledged before me on day of , 2016, by Jeff Reinert as Mayor of the City of Lino Lakes on behalf of said City. Notary Public STATE OF MINNESOTA ) ) SS COUNTY OF ANOKA ) This instrument was acknowledged before me on day of , 2016 by Julianne Bartell as City Clerk of the City of Lino Lakes on behalf of said City. Notary Public 2016 20160627 Arnt CUP Batch Plant Site Performance Agreement page 7 of 8 STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) On this day of , 2016, before me, a Notary Public within and for said County, personally appeared (Developer), who executed the foregoing instrument. Notary Public This instrument was drafted by: City of Lino Lakes 600 Town Center Parkway Lino Lakes, Minnesota 55014 2016 20160627 Amt CUP Batch Plant Site Performance Agreement page 8 of 8