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
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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.
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•
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
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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
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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.
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•
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
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