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HomeMy WebLinkAbout2010-001 Council Resolution411 Council Member produced the following resolution and moved its adoption: Rafferty CITY OF LINO LAKES RESOLUTION NO. 10 -01 RESOLUTION AUTHORIZING EXECUTION OF PERFORMANCE AGREEMENT, 7317 AND 7319 LAKE DRIVE, `BOARHOUSE' WHEREAS, the City Council approved a conditional use permit for the property at 7317 and 7319 Lake Drive on September 22, 1997. WHEREAS, the City Council approved a conditional use permit for 7317 and 7319 Lake Drive, `Boarhouse on January 11, 2010. WHEREAS, this performance agreement covers the remaining work not completed under the requirements of the September 22, 1997 conditional use permit. • NOW, THEREFORE, BE IT RESOLVED THAT the Lino Lakes City Council approves the Performance Agreement with 7317 and 7319 Lake Drive, `Boarhouse', and authorizes the Mayor and City Clerk to execute such agreement on behalf of the city. Bartell, City Jeff Rei e , Mayor Adopted by the Lino Lakes City Council this 11th day of January 2010. The motion for the adoption of the foregoing resolution was duly seconded by Council Member Roeser and upon vote being taken thereon, the following voted in favor thereof: Rafferty, Roeser, Gallup, O'Donnell, Reinert. 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 6Aii James E. Studenski, City Engineer January 11, 2010 Resolution No. 10 -01, Authorizing Execution of Performance Agreement, 7317 and 7319 Lake Drive `Boarhouse. 3/5 Vote On September 22, 1997 a conditional use permit was given for the operation of an automotive repair business in a portion of the property at 7317 and 7319 Lake Drive. The owner is proposing to have a tenant move into the remainder of that property. The City is requiring that the owner of the 7317 and 7319 Lake Drive complete the remaining requirements of the original September 22, 1997 conditional use permit as part of the approval of the new conditional use permit for the new tenant. This performance agreement covers the work associated with the remaining requirements of the original conditional use permit. In accordance with City policy, staff has prepared a Performance Agreement for 7317 and 7319 Lake Drive `Boarhouse'. The agreement provides for the following: 1. Submittal by the developer of a Letter of Credit in the amount of $25,000.00 representing the development improvement costs. A letter of credit covering the City Improvements is not required because all utility connection charges have been assessed to the property. 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 10 -01, Authorizing Execution of Performance Agreement, 7317 and 7319 Lake Drive `Boarhouse'. • CITY OF LINO LAKES, MINNESOTA SITE IMPROVEMENT PERFORMANCE AGREEMENT THIS AGREEMENT made this 11th day of January 2010, 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 Dean Quimby, whose address is 335 Thomas Street, Lino Lakes Minnesota, 55014, 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 11th day of January 2010, by Resolution No. 10 -1 (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: THAT PRT OF SW1 /4 OF SW1 /4 OF SEC 17 TWP 31 RGE 22 DESC AS FOL: BEG AT INTER OF S LINE OF N 300 FT OF SD 1/4 1/4 & WLY R/W LINE OF LAKE DR, TH S 25 DEG 20 MIN 49 SEC W, ASSD BRG, ALG SD R/W LINE 127.34 FT, TH N 64 DEG 39 MIN 11 SEC W 272.63 FT, TH N 25 DEG 20 MIN 49 SEC E 160 FT, TH S 64 DEG 39 MIN 11 SEC E 272.63 FT TO SD WLY R/W LINE, TH S 25 DEG 20 MIN 49 SEC W ALG SD WLY R/W LINE 32.66 FT TO POB, (AKA PRT OF LOTS 1 & 2 AUD SUB NO 54), 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 ". 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. January 11, 2010 The Boarhouse at 7317 / 7319 Lake Drive - Performance Agreement Page 1 of 8 • 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, outside trash disposal enclosures, exterior building architectural design and building elements, site grading and erosion control measures. Such improvements shall be completed in accordance with Section W 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 $ 5,000.00 2. Asphalt Paving/Curb & Gutter $ 20,000.00 Total Estimated Cost of Developer Improvements $ 25,000.00 Security Requirement $ 25,000.00 Note: Sanitary Sewer, Surface Water Management, and Water Connection charges were assessed to the property taxes on January 13, 1998. 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 January 11, 2010 The Boarhouse at 7317 / 7319 Lake Drive - Performance Agreement Page 2 of 8 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. IV. COMPLETION DATE. If the activities authorized by site and building plan approval are not completed within eighteen (6) months (July 11, 2010), the City may exercise any remedies as set forth in Section VII., unless an extension is granted by the City. 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 or a minimum of $25,000.00. 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. January 11, 2010 The Boarhouse at 7317 / 7319 Lake Drive - Performance Agreement Page 3 of 8 • 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 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 January 11, 2010 The Boarhouse at 7317 / 7319 Lake Drive - Performance Agreement Page 4 of 8 • 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. Any funds remaining after completion of the project shall be returned to the Developer. VIII. OCCUPATION OF PREMISES The developer may occupy any portion of the building or improvements throughout construction. If completion of the building and site improvements as more fully described in the approved plans is not completed by June 1, 2010 the developer will not be allowed to further occupy the building or improvements. • 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 January 11, 2010 The Boarhouse at 7317 / 7319 Lake Drive - Performance Agreement Page 5 of 8 • 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. 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 January 11, 2010 The Boarhouse at 7317 / 7319 Lake Drive - Performance Agreement Page 6 of 8 • XIII. CONDITIONS OF APPROVAL 1. The Conditions associated with both Automobile /Truck Repair and Accessory Retail Sales shall be attached to the approval of the Conditional Use Permits and must be complied with at all times. 2. The comments made by the City Engineer shall be addressed prior to the City Council consideration of this request. 3. The paving and curb required on the rear of the lot shall be completed by June 1, 2010, and appropriate financial securities shall be submitted to the city to guarantee that the work is completed. 4. Hours of Operation for this use shall be limited to lam — 7pm Monday through Saturday and 9am — 5pm on Sunday. 5. All repair or installation work shall be completed inside the building with all doors closed to limit impacts on the surrounding area. XIV. 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, 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. January 11, 2010 The Boarhouse at 7317 / 7319 Lake Drive - Performance Agreement Page 7 of 8 • DEAN QUIMBY CITY OF LINO LAKES By: By Mayor Its: ATTEST: By City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) On this day of , 2010, before me, a Notary Public within and for said County, personally appeared Jeff Reinert 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 ) ) ss. COUNTY OF HENNEPIN ) On this day of , 2010, before me, a Notary Public within and for said County, personally appeared , of the 7317 and 7319 Lake Drive who executed the foregoing instrument. Notary Public This instrument was drafted by: City of Lino Lakes 600 Town Center Parkway Lino Lakes, Minnesota 55014 January 11, 2010 The Boarhouse at 7317 / 7319 Lake Drive - Performance Agreement Page 8 of 8