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HomeMy WebLinkAbout2013-098 Council Resolution• • CITY OF LINO LAKES RESOLUTION NO. 13 -98 RESOLUTION APPROVING A SITE PERFORMANCE AGREEMENT WITH MCDONALD'S CORPORATION WHEREAS, the City has completed the review of the site and building plans for a McDonald's Restaurant, located at 7110 Otter Lake Road, and WHEREAS, Section 2, Subd. 6.E.4. of the Lino Lakes Zoning Ordinance requires the execution of a site performance agreement prior to issuance of a building permit, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lino Lakes that the Site Improvement Performance Agreement between the City of Lino Lakes and McDonald's Corporation is hereby approved , and the Mayor and City Clerk are authorized to execute such agreements on behalf of the City. Adopted by the Council of the City of Lino Lakes this 23 day of September, 2013. The motion for the adoption of the foregoing resolution was introduced by Council Member Roeser and was duly seconded by Council Member Stoesz upon vote being taken thereon, the following voted in favor thereof: Roeser, Stoesz, Rafferty, Reinert The following voted against same: none (Absent - O'Donnell) ATTEST: • acme Bartell, City Clerk and • CITY COUNCIL AGENDA ITEM 6A STAFF ORIGINATOR: Jason Wedel MEETING DATE: September 23, 2013 TOPIC: Resolution No. 13 -98: Approving a Site Performance Agreement with McDonald's Corporation VOTE REQUIRED: 3/5 BACKGROUND McDonald's Corporation has received administrative site plan approval for a proposed restaurant, on the corner of Main Street and Otter Lake Road. For all commercial and institutional projects, the City requires execution of a site performance agreement prior to issuance of a building permit to ensure that specific site work is completed. The attached performance agreement addresses the site work for the building and provides for submittal of all required fees and securities. • RECOMMENDATION Staff recommends approval of Resolution 13 -98. ATTACHMENTS 1. Resolution No. 13 -98 2. Site Performance Agreement • CITY OF LINO LAKES, MINNESOTA SITE IMPROVEMENT PERFORMANCE AGREEMENT THIS AGREEMENT made this day of , 2013, 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 McDonalds USA, LLC, whose address is One McDonald's Plaza, Oak Brook, Illinois 60523, Attention: Director, U.S. Legal Department #091, L /C: 022 -0538, hereinafter referred to as the "Tenant Developer ". WHEREAS, the Tenant Developer has received administrative approval of Site Development Plans, hereinafter called the "Plans ", by the City of Lino Lakes on the day of April 28th, 2013, and in accordance with the Plans all of which are made a part hereof by reference. In consideration of such approval, the Tenant 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: Lots 1, Block 1, MAIN STREET SHOPPES, according to the plat thereof on file and of record in Anoka County, Minnesota. NOW, THEREFORE, in consideration of the mutual promises of the parties made herein, IT IS AGREED BY AND BETWEEN THE PARTIES HERETO: Lino Lakes McD Changes Site Performance Agreement 091113 rev JW 091813 .doc page 1 of 9 • I. DESIGNATION OF IMPROVEMENTS. A. Improvements on the project site to be installed at the Tenant Developer's expense by the Tenant Developer as hereinafter provided are hereinafter referred to as "On -site Work ". B. Improvements off the project site to be installed at the Tenant Developer's expense, if any, by the Tenant Developer as hereinafter provided are hereinafter referred to as "Off -Site Work ". At the date of full execution of this agreement, Tenant Developer does not intend on any Off -site Work. C. Intentionally Deleted. 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: landscaping, private driveways, parking areas, storm drainage systems, water mains, sanitary sewers, hydrants, curbing, lighting, fencing, fire lanes, sidewalks, trails, 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 IV herein. B. Cost Estimates. The Tenant 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 Tenant Developer's On -site Work are as follows: Lino Lakes McD Changes Site Performance Agreement 091113 rev JW 091813 .doc page 2 of 9 • Description of Improvements Estimated Costs 1. Lighting $15,000.00 2. Trash Disposal Structure $20,000.00 3. Curbing / Islands / Delineators $15,000.00 4. Storm Drainage Systems / Sewers / Catch $25,000.00 Basins / Culverts / Swales 5. Private Trials and / or Sidewalk $12,000.00 6. Driveway / Curbcut / Parking Lot / Fire Lane $60,000.00 7. Watermains / Hydrants / Sanitary Sewers $25,000.00 8. Landscaping $35,000.00 9. Site Grading $0.00 10. Erosion Control $8,000.00 Total Estimated Cost of Developer $215,000.00 Improvements Security Requirement (Total * 35 %) $75,250.00 III. As -Built Survey The Tenant Developer's engineer shall certify, in writing with an as -built survey, that all site grading complies with the grading plan prior to issuance of building permits. The as -built survey must include, but is not limited to, proposed and final contours with adequate elevation shots to show conformance, property irons (to be exposed in field), low floor and low opening elevations, and the 100 -Year High Water Level (HWL) of all ponds, lakes, and wetland areas if applicable. IV. COMPLETION DATE. If the activities authorized by site and building plan approval are not initiated within twelve (12) months from the final execution of this agreement, then Developer Tenant will need to start the site and building plan approval process from the beginning. V. GUARANTEE. A. The Tenant Developer will fully and faithfully comply with all terms and conditions of any and all contracts entered into by the Tenant Developer. Concurrently with the execution hereof by the Tenant Developer, the Tenant 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 Tenant's Developer's On -site Work. An Irrevocable Letter of Credit shall be for the Lino Lakes McD Changes Site Performance Agreement 091113 rev JW 091813 .doc page 3 of 9 • 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 Tenant 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, if Tenant Developer has been found to be in default of this agreement and only after providing Tenant Developer with written notice and opportunity to cure any default. 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 or overnight mail that the Letter of Credit will not be renewed. B. Upon written request, The City will grant a 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. The Tenant Developer may make such requests three times throughout the life of this agreement, with the third and /or final request being at the completion of the project. The City will respond to such request within 30 days time. Prior to the final acceptance of the Tenant Developer's Improvements the City shall require a Letter of Credit or Cash Escrow to cover the warranty provisions of the agreement. The amount shall be agreed to by the City Engineer and Tenant Developer and Tenant Developer may use the Letter of Credit discussed in Section V.A above. VI. REIMBURSEMENT OF COSTS. A. The Tenant Developer agrees to pay by check to the City, an amount reasonably 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 Work, including, but not limited to, the following: 1. Site Plan Review Fee (Existing escrow deficit) 2. Administration (Legal, Engineering, Planning, and Contract administration) 3. Sanitary Sewer Trunk Unit Fee ( 7 units @ $2,911 per unit) 4. Water Trunk Unit Fee (7 units @ $3,854 per unit) 5. Surface Water Management Fee (paid with Main Street Shoppes plat)* Total Estimated (Budget) Costs for Escrow Account * ** B. If it appears that the actual costs incurred will exceed the estimate or that the actual costs incurred will be less than the estimate, then Tenant Developer and City shall review the costs required to complete the project. $1,500.00 $1,500.00 $20,377 $26,978 $.00 $50,355 Lino Lakes McD Changes Site Performance Agreement 091113 rev JW 091813 .doc page 4 of 9 • In such case, if the actual costs exceed the estimate, then Tenant Developer shall promptly pay the additional sums to the City to pay for the agreed upon increase. However, in such case where the actual costs are less than the estimate, the City shall promptly reimburse to Tenant Developer any amounts overpaid by the Tenant Developer. The Tenant Developer may request a statement of the account each month for review. C. Intentionally Deleted. VII. REMEDIES FOR BREACH A. The City shall give prior written notice to the Tenant 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 twenty (20) days after receipt of such written notice to it, the Tenant 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 reasonably 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 reasonably 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 Tenant Developer to cause the Work to be undertaken and completed within a specified reasonable time. If the Tenant Developer fails to cause the Work to be done and completed in a manner and time reasonably 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 written notice, may enter the premises and proceed to have the Work done either by contract, by day labor or by regular City forces. The Tenant Developer may not question the manner of doing such work or the letting of any such contracts for the doing of any such work; provided that all such work is performed in a reasonable manner, the costs are reasonable and the work is completed in a good and workman -like manner and in accordance with the approved plans and specifications. Upon completion of such work, the Tenant Lino Lakes McD Changes Site Performance Agreement 091113 rev JW 091813 .doc page 5 of 9 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 reasonably estimated cost of completing the Work, plus the City's reasonably estimated expenses as defined herein, including any other reasonable 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 reasonable costs incurred in completing the Work as hereinafter specified. Any funds remaining after completion of the project shall be promptly returned to the Tenant Developer. VIII. OCCUPATION OF PREMISES The Tenant 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 and following issuance of a Certificate of Occupancy. IX. INSURANCE Tenant Developer, or its contractor, or all of 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 Tenant 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 (not all City employees but the term "employees), its agents and assigns shall be named as an additional insured on the policy, and the Tenant 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. Lino Lakes McD Changes Site Performance Agreement 091113 rev JW 091813 .doc page 6 of 9 • X. REIMBURSEMENT FOR LITIGATION EXPENSES The City and Tenant Developer agree that the prevailing party in any litigation pertaining to the enforcement of this Agreement shall be entitled to reimbursement from the non - prevailing party for all reasonable costs incurred by said prevailing party including court costs and reasonable engineering and attorneys' fees. 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. D. 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 (i) mailed by United States mail by certified mail (return receipt requested)or (ii) sent by nationally recognized overnight carrier to the addresses hereinbefore set forth on Page 1 . Such notice or demand shall be deemed timely given when delivered personally or when deposited in the mail or the overnight carrier 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. E. 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. F. 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 Lino Lakes McD Changes Site Performance Agreement 091113 rev JW 091813 .doc page 7 of 9 • XIII. VIOLATIONSBUILDING PERMITS In the event that Tenant Developer violates any of the covenants and agreements contained in this Site Improvement Performance Agreement and to be performed by the Tenant Developer, the City, at its option, and after providing written notice and opportunity to cure to Tenant Developer 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. Lino Lakes McD Changes Site Performance Agreement 091113 rev JW 091813 .doc page 8 of 9 • TENANT DEVELOPER CITY OF LINO LAKES TENANT Developer STATE OF MINNESOTA COUNTY OF ANOKA By Mayor ATTEST: By City Clerk On this day of , 2013, 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 , 2013, before me, a Notary Public within and for said County, personally appeared (Tenant 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 Lino Lakes McD Changes Site Performance Agreement 091113 rev JW 091813 .doc page 9 of 9