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.
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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.
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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)
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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
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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
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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.
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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.
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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.
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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
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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.
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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
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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
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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
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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.
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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
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