Loading...
HomeMy WebLinkAbout2009-089 Council Resolution• Council Membeieinertintroduced the following resolution and moved its adoption: CITY OF LINO LAKES RESOLUTION NO. 09-89 RESOLUTION AUTHORIZING EXECUTION OF PERFORMANCE AGREEMENT, NORTH SPRINGS CHURCH WHEREAS, the City Council approved the VFW Site Plan on February 9, 2004. WHEREAS, the North Springs Church will complete the approved VFW Site Plan. NOW, THEREFORE, BE IT RESOLVED THAT the Lino Lakes City Council approves the Performance Agreement with North Springs Church, and authorizes the Mayor and City Clerk to execute such agreement on behalf of the city. • uli. i e Bartell, Adopted by the Lino Lakes City Council this 12th day of October 2009. The motion for the adoption of the foregoing resolution was duly seconded by Council Member and upon vote being taken thereon, the following voted in favor thereof: Stoltz Reinert, Stoltz, O'Donnell, Gallup, Bergeson The following voted against same: none Whereupon said resolution was declared duly passed and adopted. • STAFF ORIGINATOR: CITY COUNCIL MEETING DATE: TOPIC: ACTION REQUIRED: BACKGROUND: AGENDA ITEM 6D James E. Studenski, City Engineer October 12, 2009 Resolution No. 09 -89, Authorizing Execution of Performance Agreement, North Springs Church. 3/5 Vote The North Springs Church is the new owners of the former VFW building (7868 Lake Drive). North Springs Church is proposing the completion of the VFW site as approved by the City Council on February 9, 2004 (Resolution No. 04 -18). In accordance with City policy, staff has prepared a Performance Agreement for North Springs Church. The agreement provides for the following: 1. Submittal by the developer of a Letter of Credit in the amount of $36,725.00 representing 35 percent of the development improvement costs. A letter of credit covering the City Improvements is not required because all utility connection charges where paid by the VFW under there previous performance agreement. 2. Deposit of a cash escrow in the amount of $5,000.00 to reimburse the City for costs incurred by the City related to the development and improvements of the site. The developer has reviewed the contract and is aware of the conditions set forth. RECOMMENDATION: Staff recommends approving Resolution Number 09 -89, Authorizing Execution of a Performance Agreement, North Springs Church. • • • CITY OF LINO LAKES, MINNESOTA SITE IMPROVEMENT PERFORMANCE AGREEMENT THIS AGREEMENT made this 12th day of October 2009, is by and between the City of Lino Lakes, whose address is 600 Town Center Parkway, Lino Lakes, Minnesota 55014, a municipal corporation organized under the laws of the State of Minnesota, hereinafter referred to as the "City ", and North Springs Church, whose address is 1388 Pheasant Hills Drive, hereinafter referred to as the "Developer ". WHEREAS, the Developer has received approval of Site Development Plans, hereinafter called the "Plans ", by the City on the 9t day of February, 2004, by Resolution No. 04 -18 (Exhibit A), 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 ") described as follows: Lot 7, Auditors Subdivision No. 100 THAT PRT OF LOT 7 AUD SUB NO 100 LYG SLY OF FOL DESC LINE: BEG AT A PT ON ELY LINE OF SD LOT 20 FT NLY FROM SELY COR OF SD LOT, TH NWLY TO A PT ON WLY LINE THEREOF 150 FT NELY FROM SWLY COR OF SD LOT& SD LINE THERE TERM, TOG /W LOT 8 SD AUD SUB NO 100, ALSO TOG /W THAT PRT OF LOT 9 SD AUD SUB NO 100 DESC AS FOL: BEG AT A PT ON S LINE OF SD LOT 9 234 FT WLY OF SE COR OF SD LOT 9, TH N TO A PT ON N LINE OF SD LOT 9 200 FT WLY OF NE COR OF SD LOT 9, TH WLY ALG SD N LINE TO ELY R/W LINE OF CSAH NO 23, TH SWLY ALG SD R/W LINE TO S LINE OF SD LOT 9, TH ELY ALG SD S LINE TO POB, TOG /W WLY 10 FT OF NLY134.31 FT OF THAT PRT OF SD LOT 9 DESC AS FOL: BEG AT A PT ON SLY LINE OF SD LOT 9 120 FT WLY OF SE COR THEREOF TH WLY ALG SD SLY LINE 114 FT, TH NLY TO A PT ON NLY LINE OF SD LOT 9 200 FT WLY OF NECOR THEREOF, TH ELY ALG SD N LINE 90 FT, TH SLY TO POB, EX RD, SUBJ TO EASE OF REC 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 ". October 12, 2009 North Springs Church Performance Agreement Page 1 of 10 • • • B. Improvements off the project site to be installed at the Developer's expense by the Developer as hereinafter provided are hereinafter referred to as "Off -site Work ". 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 all on -site exterior amenities as shown on the approved Plans and as required by the plan approval, such as, but not limited to: landscaping, private driveways, parking areas, storm drainage systems, curbing, lighting, fencing, fire lanes, sidewalks, outside trash disposal enclosures, exterior building architectural design and building elements, site grading, tree preservation work and erosion control measures. Such improvements shall be completed in accordance with Section IV herein. 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 is as follows: Description of Improvements Estimated Costs 1. Surveying, Site. Grading and Erosion Control $ 24,300.00 2. Asphalt Paving /Curb & Gutter $ 55,000.00 3. Planting, Irrigation Systems $ 10,800.00 4. Dumpster Gate $ 600.00 5. Signs and Site Lighting $ 4,000.00 6. Sound Fence $ 10,230.00 Total Estimated Cost of Developer Improvements $ 104,930.00 Security Requirement (Total * 35 %) $ 36,725.00 Note: Sanitary Sewer, Surface Water Management, and Water Connection charges where paid by the Circle -Lex VFW Post 6538 under the performance agreement dated July 7, 2004 in the amount of $80,731.88 October 12, 2009 North Springs Church Performance Agreement Page 2 of 10 • • III. OFF -SITE WORK A. Right -of -Way. The Developer shall be responsible for acquiring any right -of -way, temporary easements, or permanent easements necessary for the making of such improvements. B. Plans & Specifications. The Developer shall prepare plans and specifications for the making of such improvements. Said plans and specifications shall be subject to review and approval by the City of Lino Lakes and Anoka County. C. Construction Observation. 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 and County standards as a condition of City /County acceptance. In addition, the City and /or County shall have one or more inspectors inspect the work on a full or part-time basis. The Developer, its contractors and subcontractors, shall follow all reasonable instructions received from the City's inspectors. D. Record Plans. Within thirty (30) days after the completion of the improvements the Developer shall supply the City with 2 complete sets of mylar "Record" drawings, all prepared in accordance with City standards. An electronic copy on two CD's of the plans shall also be submitted in an AutoCAD DWG format. E. As -Built Survey. The Developer's engineer shall certify, in writing with an as -built survey that all grading complies with the grading plan prior to issuance of building permits. The as -built survey must include, but is not limited to, proposed and final contours with adequate elevation shots to show conformance, property irons (to be exposed in field), low floor and low opening elevations, and the 100 -Year High Water Level (HWL) of all ponds, lakes, and wetland areas. IV. COMPLETION DATE. The activities authorized by site and building plan approval shall be initiated within six (6) months (April 12, 2010). If such activity is not completed within eighteen (18) months (April 12, 2011), the City may exercise any remedies as set forth in Section VII., unless an extension is granted by the City. October 12, 2009 North Springs Church Performance Agreement Page 3 of 10 • 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 for the installation and construction of all Developer's Off -site Work and hereby guarantees the workmanship and materials for a period of one year following the City's final acceptance of the Developer's Off -site Work. 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 and Off -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 and construction of all required improvements in accordance with the ordinances and specifications of the City. 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. The Irrevocable Letter of Credit shall be automatically extended for additional periods of one year from present or future expiration dates unless thirty (30) days prior to such the City Clerk or Administrator is notified in writing by certified mail that the Letter of Credit will not be renewed. B. The Developer may request 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. Prior to the final acceptance of the Developer's Improvements the City shall require a Letter of Credit or Cash Escrow to cover the one -year warranty provisions of the agreement. The amount shall be determined by the City Engineer or a designee. 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 and Off -site Work, including, but not limited to, the following: 1. Administration (Legal, Engineering, Planning, and $ 5,000 Contract administration) Total Estimated (Budget) Costs for Escrow Account $ 5,000 B. The City shall have a right to reimburse itself from the Escrow. If it appears that the actual costs incurred will exceed the estimate, then the October 12, 2009 North Springs Church Performance Agreement Page 4 of 10 • • City shall review the costs required to complete the project. In such case, Developer shall deposit additional sums with the City to pay for the agreed upon increase. VII. REMEDIES FOR BREACH A. The City shall give prior 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 ten (10) days after such 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 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 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 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 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 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. Upon completion of such work, the Developer shall promptly pay the City the full cost thereof as aforesaid. 3. Deposit of Financial Guarantee. The City may draw on the Letter of Credit the sum equal to the estimated cost of completing the Work, plus the City's estimated expenses as defined herein, including any other 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 City for the purpose of reimbursing the City for any costs incurred in completing the Work as hereinafter specified. October 12, 2009 North Springs Church Performance Agreement Page 5 of 10 Any funds remaining after completion of the project shall be 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 all its subcontractors shall take out and maintain until one (1) year after the City has accepted the private 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 Work 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; 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 all its subcontractors 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 (10) 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 OF COSTS FOR DEFENSE The Developer agrees to reimburse the City for all costs incurred by the City in defense of enforcement of this Agreement, or any portion thereof, including court costs and reasonable engineering and attorneys' fees if the City prevails in such action. 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. October 12, 2009 North Springs Church Performance Agreement Page 6 of 10 • • 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. B. 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 mailed by United States mail to the addresses hereinbefore set forth on Page 1 by certified mail (return receipt requested). Such notice or demand shall be deemed timely given when delivered personally or when deposited in the mail in accordance with the above. The addresses of the parties hereto are as set forth on Page 1 until changed by notice given as above. C. 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. D. 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. CONDITIONS OF APPROVAL The project approval should be subject to the following conditions: 1. Issues listed in the August 31, 2009 memo by the City Engineer must be resolved to his satisfaction. 2. All necessary permits shall be obtained by the applicant from Anoka County for work in the Lake Drive (CSAH 23) right of way. 3. The church shall enter into a site performance agreement for exterior work on the site prior to commencing the work or obtaining a certificate of occupancy. This shall include financial securities according to current City requirements. October 12, 2009 North Springs Church Performance Agreement Page 7 of 10 • 4. Parking lot lighting must be completed as shown on submitted plan and fixture cut sheets. The pedestal for a light near the Lake Drive driveway is not included on the lighting plan. If a light is to be installed here, it must be determined what type of fixture and a photometric study done to ensure it meets city standards. 5. Parking lot and sign lighting shall comply with the hours of operation for commercial businesses as regulated by the zoning code. 6. If the installed flagpole lighting is to remain or be expanded, a photometric analysis must be submitted that demonstrates it meets city standards. Landscaping around the flagpoles must be revised on a new plan for the area if lighting is to be there. 7. Signage is governed by the City's sign ordinance and permits are required for all signs. The location of any ground sign must be identified on a plan. 8. If parking or traffic generation create safety problems in the future, the City may revisit the CUP and consider adding additional conditions to resolve such issues such as traffic control personnel or other measures. The City may call a review meeting of representatives from law enforcement officers, the church, and the neighborhood to review traffic issues and ascertain the need for providing traffic control or other reasonable measures, which the church shall provide. This condition is in lieu of requiring a traffic study for the church use. 9. The parking, landscaping, and any other exterior work shall be completed in accordance with the plans. 10. Final site grading and erosion control must be completed in accordance with the approved plans. This includes removal of the old building foundation/slab, re- shooting elevations, grading the rest of the south end of the site and the county roadway ditch to the design criteria, and finishing grading of the rest of the site. 11. The south parking lot curbing and drainage improvements must be completed according to plans. 12. The south parking lot sub -base and first lift of asphalt must be completed according to plans. 13. In the area of the existing access to the back yard of the property to the east, any alterations necessary to ensure proper drainage and other compliance with plans must be made as directed by the City Engineer. 14. The final lift of asphalt must be completed over the entire site according to plans. 15. Topsoil, landscaping, and seeding of all disturbed areas must be completed according to plans. October 12, 2009 North Springs Church Performance Agreement Page 8 of 10 16. The height of any plantings near the driveway must not interfere with sight lines • when fully grown. 17. The City native seed schedule shall be used in infiltration and ponding areas. 18. The gate must be installed on the trash enclosure. 19. The HVAC and fans on the east side of the building have created significant nuisance issues for the neighboring property. A noise fence shall be constructed around the HVAC equipment on the east side of the building in accordance with the plan approved by the City. 20. Section 2, Subd. 2.B.11. of the zoning code states that "A conditional use specified in the permit expires if, for any reason, the authorized use ceases for more than one (1) year." The VFW has ceased operating for more than one year. The conditional use permit for a private club, approved with Resolution No. 04 -18, is hereby recognized as expired. 21. The setback variances granted with Resolution No. 04 -18 continue to be in effect. 22. All permits and approvals required to comply with life safety requirements such as the building and fire codes must be obtained. 23. If a trail easement is deeded to the City along the 5 +' between the Lake Drive right of way and the parking curb, the plantings shown there on the landscaping plan need not be installed. XIV. VIOLATIONS /BUILDING 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, 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. October 12, 2009 North Springs Church Performance Agreement Page 9 of 10 • NORTH SPRINGS CHURCH CITY OF LINO LAKES By: By Mayor Its: ATTEST: By City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) On this day of , 2009, before me, a Notary Public within and for said County, personally appeared John Bergeson and Julie Bartell, to me known to be respectively the Mayor and Clerk of the City of Lino Lakes, and who executed the foregoing instrument and acknowledge that they executed the same on behalf of said City. Notary Public STATE OF MINNESOTA ) COUNTY OF HENNEPIN ) ss. On this day of , 2009, before me, a Notary Public within and for said County, personally appeared , of the North Springs Church who executed the foregoing instrument. Notary Public This instrument was drafted by: City of Lino Lakes 600 Town Center Parkway Lino Lakes, Minnesota 55014 October 12, 2009 North Springs Church Performance Agreement Page 10 of 10