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HomeMy WebLinkAbout2011-068 Council ResolutionCouncil Member° ' Donnellintroduced the following resolution and moved its adoption: CITY OF LINO LAKES RESOLUTION NO. 11 -68 RESOLUTION AUTHORIZING EXECUTION OF PERFORMANCE AGREEMENT, 2209 PHELPS ROAD, `ARNT TEMPORARY BATCH PLANT' WHEREAS, the City Council approved Ordinance Number 13 -11, approving a zoning ordinance amendment creating `Temporary Batch Plant' as an interim use in certain zoning districts, and WHEREAS, the City Council adopted Resolution Number 11 -64, approving an interim use permit at 2209 Phelps Road for a Temporary Batch Plant. NOW, THEREFORE BE IT RESOLVED THAT the Lino Lakes City Council approves the Performanc Agreement ,attached to this resolution as Attachment A, with the property owner of 2209 Phelps Road and the developer of the project, and authorizes the Mayor and City Clerk to execute such agreement on behalf of the city. • AT ST u i Bartell its y Adopted by the Lino Lakes City Council this 27th day of June 2011. 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: O'Donnell, Roeser, Rafferty, Reinert The following voted against same: None, (Absent - Gallup) Whereupon said resolution was declared duly passed and adopted. • 410 r �� CITYy4��� �,�,�OF IN ! ' KE • • Memorandum To: City Council From: Paul Bengtson Date: June 24, 2011 Re: Item 6Dii — Arnt Temp. Batch Plant Performance Agreement The following Performance Agreement should be attached as Attachment A to Resolution Number 11 -68, which will authorize execution of the agreement. In the process of negotiating the agreement, the developer has identified two issues they would like to discuss with the City Council. 1. Hours of Operation — the developer is proposing to operate between the hours of 5:00 am and 8:00 pm. Staff has included the standard 7:00 am — 7:00 pm hours of operation as included in most development agreements /performance agreements. (Page 8) 2. Securities — Staff has included a $500,000 letter of credit as a financial surety that the site is returned to its original state and the surrounding roads are repaired if damage occurs. The developer has agreements with MnDOT that may provide some security, but has not supplied to staff any documentation proving what mechanisms are in place. (Page 5) • • • CITY OF LINO LAKES, MINNESOTA SITE IMPROVEMENT PERFORMANCE AGREEMENT THIS AGREEMENT made this day of , 2011, 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 ", whose address is , hereinafter referred to as the "Property Owner" and , whose address is , hereinafter referred to as the "Developer ". WHEREAS, the Developer has received approval of an Interim Use Permit, hereinafter called the "Plans ", by the City Council of the City on the 27t day of June , 2011, by Resolution No.11 -60 (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: Insert legal description here Page 1 of 12 • • 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. DEVELOPER'S IMPROVEMENTS A. The Developer's Engineer shall prepare, at the Developer's expense, a Grading Plan. The Developer shall secure a contractor to install these improvements; said contractor shall be approved by the City at its ABSOLUTE discretion. All Developer improvements shall require City inspection and approval and, where appropriate, the approval of any other governmental agency having jurisdiction. The Developer will construct and install at Developer's expense the following improvements according to the following terms and conditions: 1. Grading Plan a. A final site grading plan shall be submitted and approved by the City prior to commencement of any site grading. b. The grading plan and all site grading shall be provided and conducted in accordance with the plan as approved by the City, NPDES requirements and the Rice Creek Watershed District. The Developer shall perform the work in accordance with a Stormwater Pollution Prevention Plan in accordance with Minnesota Pollution Control Agency (MPCA) requirements. c. The Developer shall be responsible for securing all required site grading and development approvals and permits from all Federal, State, Regional and Local agencies with jurisdiction or as applicable prior to the commencement of site grading or construction. 2. Erosion Control Plan Page 2of12 • • • a. The Developer shall submit an erosion control plan, detailing all erosion control measures to be implemented during construction. Said plan shall be approved by the City prior to commencement of site grading or construction. The erosion control plan shall also be subject to the approval of any other governmental agency having jurisdiction. b. The Developer shall submit a Turf Establishment Plan which details topsoil placement, seeding, mulching, fertilizing and watering. Said plan shall be approved by the City prior to commencement of site grading or construction. 3. Grading and Erosion Control Construction and Maintenance a) Prior to the commencement of site grading and erosion control, the Developer shall complete items II.A.l and II.A.2 as listed above. b) The Developer shall grade the site to within 0 2 foot of the grades shown on the approved Grading plan. No deviations will be allowed unless a revised plan is submitted and approved by the City and all other regulatory agencies. c) All development shall conform to the natural limitations presented by the topography and soil of the property in order to create the best potential for preventing soil erosion. d) Erosion and siltation control measures shall be coordinated with the different stages of development as applicable. Appropriate control measures as required by the City shall be installed prior to development when necessary to control erosion. e) Land shall be developed in increments of workable size such that adequate erosion and siltation controls can be provided as construction progresses. The smallest practical area of land shall be exposed at any one period of time. f) Where the topsoil is removed, sufficient arable soil shall be set aside for respreading over the developed area. The topsoil shall be restored to a depth of at least four (4) inches and shall be of a quality at least equal to the soil quality prior to development. Page 3 of 12 • • • g) All disturbed areas shall be seeded using City seed specifications or sodded as designated per the plans. h) The storm water storage ponds and surface water drainage ways shall be graded prior to commencement of utility construction. i) Protect streets from erosion deposits. This should include a combination of roadside silt fences, roadside sod strips, catch basin rock bale inlet protection, rock construction entrances, straw mulch, and/or street sweeping. j) The developer shall be responsible for ascertaining that site geotechnical and groundwater conditions are adequate and conforming with the grading and site improvements as proposed. k) The Developer shall restore the site to existing soil conditions. 4. The Developer shall promptly clear dirt and debris, within public right -of -ways, and drainage and utility easements, resulting from construction by the Developer, builders and contractors within five (5) days after notification by the City. The Developer or its assigns shall be responsible for all necessary street and storm sewer maintenance including street sweeping, storm sewer cleaning, ditch cleaning and pond dredging, resulting from the accumulation of said dirt and debris, until project completion. Warning sign shall be placed when hazards develop in streets to prevent public from traveling on same and directing attention to detours. If and when the streets become impassable, such streets shall be barricaded and closed. The Developer shall maintain a smooth, hard driving surface and adequate drainage on all temporary streets. 5. Other Construction a) In the event that damage to the streets or other City infrastructure result from said improvement work, the Developer shall be responsible for effecting said repairs, or the City shall withhold escrows or deposits as the City deems appropriate and necessary. b) The Developer shall provide a financial security or cash escrow to assure completion of the grading and restoration, in the event that the work is not completed by the Developer. Page 4 of 12 • • • c) No burning of vegetation cleared during construction shall be allowed. 6. Developer's Improvements and estimated costs: Site Grading Site Restoration Road Repair /Maintenance Stormwater System Repair/Maintenance $ 50,000 $ 25,000 $ 400,000 $ 25,000 Total $ 500,000 7. Construction of Developer's Improvements a) The construction, installation, materials and equipment shall be in accordance with the plans and specifications approved by the City. b) All of the work shall be under and subject to the inspection and approval of the City and, where appropriate, any other governmental agency having jurisdiction. c) All Construction debris and trash shall be properly disposed of at the developer's expense and in a timely manner as determined by the City. 8. Construction Observation. a) 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. b) The Developer, its contractors and subcontractors, shall follow all reasonable instructions received from the City's /County inspectors. c) Prior to construction, the Developer or its engineer shall schedule a preconstruction meeting at a mutually agreeable time at the Lino Lakes City Hall, located at 600 Town Center Parkway, Lino Lakes, Minnesota with contractors, subcontractors, the City staff, and other parties specified by the City to review the program for the construction work. Page 5 of 12 • • • 9. The Developer shall be required to obtain all necessary permits and approvals from all governmental agencies as required, including necessary right -of -way, temporary easements, or permanent easements for the construction. 10. Guarantee a) Faithful Performance of Construction Contracts and Letters of Credit (1) 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 Improvements and hereby guarantees the workmanship and materials for a period of one year following the City's final acceptance of the Developer's Improvements. 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 one hundred twenty -five (125 %) percent of the total estimated cost of Developer's Improvements. 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) Reduction of Escrow Guarantee. (1) 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 Page 6 of 12 • • • the requested reduction. Prior to the final acceptance of the Developer's Improvements the City shall require a Performance Bond or Cash Escrow to cover the warranty provisions of the agreement. The amount shall be determined by the City Engineer. III. CITY IMPROVEMENTS A. No City improvements are proposed under this project IV. RECORDING AND RELEASE A. The Developer agrees that the City shall have the right to record a copy of this Development Contract with the Anoka County Recorder to give notice to future purchasers and owners. This shall be recorded against the property described on Page 1 hereof Upon completion of the project to the City's satisfaction, the City shall provide to Developer release from the terms and conditions of this Development Contract subject to provisions contained in this contract. V. REIMBURSEMENT OF COSTS A. The Developer agrees to establish a non - interest bearing escrow account with the City in an amount determined by the City Administrator or his designee for the payment of all costs incurred by the City related to the development of this project and the Developer Improvements including, but not limited to, the following: Administration (Legal, Engineering, Planning, $5,000 Environmental, and Contract Administration) Land Use Application Review (Estimate) $400 Total Escrow Required: $5,400 Total Escrow Required: Less the Balance of Existing Escrow $5,400 $4,900 Escrow Deposit Required: $ 500 B. If the above escrow amounts are insufficient, the developer shall make such additional deposits as required by the City. The City shall have a right to reimburse itself from the Escrow. Page 7 of 12 • VI. HOURS OF CONSTRUCTION ACTIVITY A. All construction activity shall be limited to the hours set out by City Council as follows: Monday through Friday 7:00 a.m. to 7:00 p.m. Saturday 9:00 a.m. to 4:30 p.m. Sunday and Holidays No working hours allowed VII. INSURANCE A. 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 his 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 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. VIII. REIMBURSEMENT OF COSTS A. The Developer agrees to reimburse the City for all costs incurred by the City in defense of enforcement of this contract, or any portion thereof, including court costs and reasonable engineering and attorneys' fees if the City prevails in such action. IX. VALIDITY A. If a portion, section, subsection, sentence, clause, paragraph or phrase in this contract 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 Development Contract. X. GENERAL A. Binding Effect Page 8 of 12 • • 1. The terms and provisions hereof shall be binding upon and insure 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 Subdivision and shall be deemed covenants running with the land. B. Notices 1. 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. Conditions Staff will insert conditions of approval from the City Council upon approval of the Interim Use Permit and Zoning Ordinance Amendment XI. VIOLATIONS/BUILDING PERMITS A. In the event that Developer violates any of the covenants and agreements contained in this Development Contract 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 and/or Certificate of Occupancies to any property within the project until such time as such default has been corrected to the satisfaction of the City. XII. COMPLETION DATE. All activity associated with this project, including restoration of the site to its original state, shall be completed by either October 15, 2011 or 30 days after the completion of the project for which the plant is intended to serve, whichever comes sooner. If such activity is not completed, the City may exercise any remedies as set forth in Section VII., unless an extension is granted by the City. XIII. REMEDIES FOR BREACH Page 9 of 12 • • • 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 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 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. 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 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. XIV. OCCUPATION OF PREMISES Page 10 of 12 • • 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. DEVELOPER CITY OF LINO LAKES By Developer Mayor PROPERTY OWNER ATTEST: By Property Owner City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) On this day of , 2011, 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 ANOKA ) On this day of , 2011, before me, a Notary Public within and for said County, personally appeared (Property Owner), who executed the foregoing instrument. Page 11 of 12 • • • Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) On this day of , 2011, 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 Page 12 of 12