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HomeMy WebLinkAbout2012-069 Council ResolutionCouncil Member °' Donnellintroduced the following resolution and moved its adoption: CITY OF LINO LAKES RESOLUTION NO. 12 -69 RESOLUTION AUTHORIZING EXECUTION OF A SITE PERFORMANCE AGREEMfWITH ENCOMPASS DIGITAL MEDIA TO ALLOW GRADING AND EARTH REMOVAL AT 6221 HOLLY DRIVE. WHEREAS, Encompass Digital Media at 6221 Holly Drive wishes to remove an earthen berm from the south side of their property, and; WHEREAS, a Conditional Use Permit was approved by the City Council with Resolution Number 12 -68, on July 23, 2012. NOW, THEREFORE, BE IT RESOLVED that the Lino Lakes City Council hereby authorizes execution of a Site Improvement Performance Agreement (ATTACHMENT A). ATTEST: �}_ - e Bartell, City (�lerk Adopted by the Lino Lakes City Council this 24rd day of July , 2012. 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: O'Donnell, Roeser, Rafferty, Stoesz, Reinert The following voted against same: none Jeff R- i e ayor Whereupon said resolution was declared duly passed and adopted. • • ATTACHMENT A CITY OF LINO LAKES, MINNESOTA SITE IMPROVEMENT PERFORMANCE AGREEMENT THIS AGREEMENT made this th day of , 2012 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 Encompass Digital Media, whose address is 6221 Holly Drive Lino Lakes, Minnesota 55014, hereinafter referred to as the "Developer ". WHEREAS, the Developer has received approval of a Conditional Use Permit hereinafter called the "Plans ", by the City Council on the 23rd day of July, 2012 with the adoption of Resolution Number 12 -68 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: THE NW1 /4 OF SEC 33 TWP 31 RGE 22, EX S 110 FT OF E 254 FT OF SE1 /4 OF SD 1/4, ALSO EX THAT PRT OF E1 /2 OF SD 1/4 DESC AS FOL: BEG AT INTER OF C/L OF HOLLY DR WITH A BRANCH OF CO DITCH NO 25, SD INTER BEING ON E LINE OF SD 1/4, TH NWLY ALG SD DITCH 700 FT +OR- TO INTER/W ANOTHER DITCH RUN IN NLY DIRECTION, TH NELY ALG SD DITCH 918 FT +OR- TO SD E LINE TH SLY ALG SD E LINE 907 FT +OR- TO POB, ALSOEX NW1 /4 OF SD NW1 /4, ALSO EX THAT PRT OF NE1 /4 OF SD NW1 /4 DESC AS FOL: BEG AT NW COR THEREOF, TH S 89 DEG 52 MIN 21 SEC E, ASSD BRG, ALG N LINE OF SD 1/4 1/4 450 FT, TH S 15 DEG 58 MIN 24 SEC W 1008 .32 FT, TH N 89 DEG 52 MIN 21 SEC W 160 FT TO W LINE OF SD 1/4 1/4, TH N 0 DEG 44 MIN 23 SEC W ALG SD W LINE 970.11 FT TO POB, ALSO EX THAT PRT OF SW1 /4 OF SD NW1 /4 DESC AS FOL: BEG AT NW COR OF SD1/ 4 1/4, TH S 89 DEG 57 MIN 28 SEC E, ASSD BRG, ALG N LINE OF SD .SW1 /4 OF NW1 /4 1304.74 FT TO NE COR OF SD SW1 /4 OF NW1 /4 TH S 25 DEG 18 MIN 53 SEC W 387.05 FT, TH N 22 DEG 0 MIN 26 SEC W 377.62 FTTO S D N LINE, TH N 89 DEG 57 MIN 28 SEC W ALG SD N LINE 332.74 FT, TH S 64 DEG 53 MIN 35 SEC W 729.37 FT TO W LINE OF SD S W 1 /4 OF NW 1 /4, TH N 0 DEG 50 MIN 22 SEC W ALG SD W LINE 310 FT TO POB, TOG /WN 50 FT OF NE1 /4 OF SW1 /4 OF SD SEC, EX E 254 FT THEREOF, 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 ". 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: site grading 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. Grading $35,000 2. Erosion Control $5,000 Total Estimated Cost of Developer Improvements $40,000 Security Requirement (Total * 35 %) $14,000 C. 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. D. 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 standards as a condition of City acceptance. In addition, the City 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. 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. III. COMPLETION DATE. A. The activities authorized by site and building plan approval shall be initiated within six (6) months. If such activity is not completed within eighteen (18) months, the City may exercise any remedies as set forth in Section IX., unless an extension is granted by the City. IV. 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. • • V. 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: Total Estimated (Budget) Costs for Escrow Account Administration (Legal, Engineering, Planning, and Contract administration) Existing project escrow as of June 19, 2012 $5,000 $5,000 Additional escrow deposit required: $0 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 Developer and 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. VI. FUTURE RECLAMATION AND PAVING FEE A. The Developer agrees to provide the City a cash fee in the amount of fifteen thousand dollars ($15,000) for the future reclamation and paving of the existing Holly Drive pavement from Holly Court to County Road J. This fee represents the Developers proportional cost of the above described improvements. 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 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. VIII. OCCUPATION OF PREMISES The Developer agrees that it will not cause to be occupied any portion of the improvements to be constructed upon the premises until completion of the site improvements as more fully described in the approved plans and following issuance of a Certificate of Occupancy. IX. 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. X. 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. • • XI. 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 notices 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 XII. 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. • DEVELOPER CITY OF LINO LAKES By Developer Mayor ATTEST: By STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) On this day of , 2012, 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 , 2012, 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 • CITY COUNCIL AGENDA ITEM 6C STAFF ORIGINATOR: Paul Bengtson MEETING DATE: July 23, 2012 TOPIC: Public Hearing: Conditional Use Permit — Grading and Earth Removal i. Resolution No. 12 -68, Approving Conditional Use Permit ii. Resolution No. 12 -67, Authorizing Site Performance Agreement VOTE REQUIRED: 3/5 INTRODUCTION Encompass Digital Media, operators of the satellite farm at 6221 Holly Drive are in the process of securing additional contracts that would necessitate expansion of the facility. While finalizing the details on the expansion plan, they have applied to remove a large portion of a earth berm on the south side of the site and do some preliminary grading work on the rest of the site. SCHEDULE OF ACTIONS: Planning & Zoning Board City Council (Public Hearing) Action Deadline July 11, 2012 July 23, 2012 September 1, 2012 (may be extended) BACKGROUND The amount of material proposed for removal from the site is approximately 20,000 cubic yards, with the material being hauled south from the site on Holly Drive and then the majority east on County Road J /Ash Street then out of the city. Less than ten percent of the material would be taken west on County Road J /Ash Street. A grading plan prepared by ICECOR dated June 28, 2012, identifies the site layout, proposed excavation area, silt fence locations, and existing wetlands has been provided for staff review. The applicant estimates that it will take approximately 1,200 truck trips to remove the excavated material from their property. The proposed haul route for the excavated materials from the Encompass excavation site is south on Holly Drive and either east or west on County Road J. Per the applicant, the vast majority of the truck trips will go east on County Road J to 35E; however, there will be approximately 20 trips that will travel west on County Road J. A grading plan for the earth materials excavation site was provided by the applicant's engineer. The plan identifies the existing and proposed contours for the site, proposed drainage patterns, and locations for silt fence and hay bale check dams for erosion control purposes. The City will conduct regular inspections of the site to ensure that all NPDES General Permit requirements are being met. The wetlands on the site have been delineated and are shown on the grading plan submitted by the applicant. Wetlands will not be affected by the excavation or grading. The grading plan and conditional use permit has been submitted to the Rice Creek Watershed District (RCWD) for their review and approval. A conditional use permit may be issued if all the criteria have been met as defined in the resolution of this report. Section 3, Subdivision 11 of the zoning ordinance for Earth Moving and Land Reclamation provides a list of conditions as a prerequisite that the City may use for granting a permit. Those conditions that the City may deem necessary are as follows: 1. Properly fence any pit or excavation, and barricade entrances to prevent the general public from depositing garbage or refuse. The site is fenced and occupied by the facilities' staff. 2. Slope the banks, and otherwise guard and keep any pit or excavation in such condition as not to be dangerous because of sliding or caving banks. There will be no pits and excavation shall be staged to prevent large banks. 3. Properly drain, fill, or level off any pit or excavation so as to make the same safe and healthful as the permitting authority may determine. Again, no open pits are proposed for this project /site. 4. Limit the depth of such excavation to an elevation no lower than the minimum floor elevation for building construction as established by the City Engineer, so as not to diminish development potential of the parcel. There is not excavation below the surrounding grade, and the potential development of the site will not be diminished. 5. Limit any fill material to clean fill, defined as rock, sand, gravel, clay, or other like and similar non - decomposable material. Concrete, asphalt, metal, wood, and other debris shall be prohibited. All fill used on the site will be inspected to determine that it meets city standards. 6. Require that all decomposable material, or other unsuitable foundation material, be removed from an area before deposition of fill begins. All construction will be done on suitable fill materials. 7. Prepare a site plan showing existing and proposed grade elevations and effect of storm water drainage on adjacent areas. The submitted plans show the existing and proposed grade elevations as well as drainage directions. 8. Specify a time when the excavation or land reclamation project shall be completed. The project is proposed to be completed within a 3 week period (weather permitting) after approval by the City Council. 9. Place a minimum of four (4) inches of top soil over the completed project and establish appropriate ground cover within sixty (60) days of completion, or in a time period consistent with the City's storm water management and pollution prevention plan. This will be a condition of approval for the request. 10. Reimburse the City for the cost of periodic inspections by the City for the purpose of determining that the terms under which the permit has been issued are being complied with. A Site Performance Agreement shall be required to outline financial securities and an appropriate escrow deposit to cover inspections. 11. Implement the tree preservation plan. There is no tree preservation plan for the site as there are not significant trees within the grading area. 12. In addition to a conditional use permit, the City Engineer may determine that permits in excess of twenty -five thousand (25,000) cubic yards require the applicant to conduct a neighborhood meeting and to notify affected property owners within one - quarter (1/4) mile The proposed removal will not exceed 25,000 cubic yards and therefore a neighborhood meeting is unnecessary. 13. Post a form of security and sum as the permitted authority may require, running to the City, conditioned to pay the City the cost and expense of repairing or cleaning any highways, streets, or other public ways within the City made necessary by the special burden resulting from transporting thereon by the applicant material to or from the site, the amount of such cost to be determined by the Council; and conditioned further to comply with all the requirements of this Ordinance and the particular permit, and to save the City free and harmless from all suits or claims for damages resulting from the negligent excavation, removal, storage, or filling of rock, sand, dirt, gravel, clay, or other like material within the City. A Site Performance Agreement shall be required to outline financial securities and an appropriate escrow deposit to cover inspections. 14. Other conditions deemed appropriate to the application by the permitting authority. Any other conditions appropriate for this request will be added to the approval of the conditional use permit. The City has sent a public hearing notice to surrounding home owners to inform them of the proposed Conditional Use Permit, but due to the timelines the applicant is facing, the public hearing will need to be held at the City Council on July 23, 2012. The mailed notice indicated both the City Council and Planning and Zoning Board meetings so that neighbors may attend either or both. Staff recommends that the Planning and Zoning Board allow public comment even without the official public hearing. The Site Performance Agreement outlines the requirements of the project and establishes financial security requirements for the project. RECOMMENDATION Staff and the Planning and Zoning Board recommend approval of the Conditional Use Permit with the conditions included in Resolution Number 12 -68. ATTACHMENTS 1. Resolution Number 12 -68, Conditional Use Permit 2. Resolution Number 12 -69, Site Performance Agreement • •