HomeMy WebLinkAbout2013-105 Council Resolution•
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CITY OF LINO LAKES
RESOLUTION NO. 13 -105
RESOLUTION APPROVING A SITE PERFORMANCE AGREEMENT WITH
SUBWAY
WHEREAS, the City has completed the review of the site and building plans for a Subway
restaurant, located at 609 Apollo Drive, 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 Subway 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:
e Bartell, City Clerk
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CITY COUNCIL
AGENDA ITEM 6B
STAFF ORIGINATOR: Jason Wedel
MEETING DATE: September 23, 2013
TOPIC: Resolution No. 13 -105: Approving a Site Performance
Agreement with Subway
VOTE REQUIRED: 3/5
BACKGROUND
Subway has received administrative site plan approval for a proposed restaurant, on the corner of
Apollo Drive and Market Place Drive. 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 -105.
ATTACHMENTS
1. Resolution No. 13 -105
2. Site Performance Agreement
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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 Karen Vogl, whose address is 2
Robb Farm Road, St, Paul, Minnesota 55127, hereinafter referred to as the "Developer ".
WHEREAS, the Developer has received administrative approval of Site
Development Plans, hereinafter called the "Plans ", by the City of Lino Lakes on the
day of September 10th, 2013, 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:
Lots 1, Block 1, LINO LAKES MARKET PLACE 3RD ADDITION, 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:
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 ".
Subway Site Performance Agreement 091913.doc page 1 of 8
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B. Improvements off the project site to be installed at the Developer's
expense, if any, by the Developer as hereinafter provided are hereinafter
referred to as "Off -Site Work ".
C. Developer shall enter into a Declaration for Maintenance of Stormwater
Facilities.
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 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 are as follows:
Subway Site Performance Agreement 091913.doc page 2 of 8
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Description of Improvements Estimated Costs
1. Lighting $9,150.00
2. Trash Disposal Structure $4,270.00
3. Curbing / Islands / Delineators $9,750.00
4. Storm Drainage Systems / Sewers / Catch $3,712.00
Basins / Culverts / Swales
5. Private Trials and / or Sidewalk $0.00
6. Driveway / Curbcut / Parking Lot / Fire Lane $32,194.00
7. Watermains / Hydrants / Sanitary Sewers $18,458.00
8. Landscaping $6,900.00
9. Site Grading $17,095.00
10. Erosion Control $1,614.00
Total Estimated Cost of Developer $103,143.00
Improvements
Security Requirement (Total * 35 %) $36,100.05
III. As -Built Survey
An as -built survey of all storm water BMP's (ponds, rain gardens,
trenches, swales, etc.) is to be submitted to the City for verification of
compliance with the approved plans.
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 will need to start the site and building plan approval process from
the beginning.
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.
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
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
Subway Site Performance Agreement 091913.doc page 3 of 8
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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 Developer has
been found to be in default of this agreement and only after providing
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 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 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
Developer and Developer may use the Letter of Credit discussed in
Section V.A above.
• VI. REIMBURSEMENT OF COSTS.
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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 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 (4 units @ $2,911 per unit)
4. Water Trunk Unit Fee (4 units @ $3,854 per unit)
5. Surface Water Management Fee (paid with Lino Lakes Market Place)*
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 Developer and
City shall review the costs required to complete the project. In such case,
if the actual costs exceed the estimate, then 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 Developer any amounts overpaid by
$1,500.00
$1,500.00
$11,644
$15,416
$.00
$30,060
Subway Site Performance Agreement 091913.doc page 4 of 8
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the Developer. The 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 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 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 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
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 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 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
Subway Site Performance Agreement 091913.doc page 5 of 8
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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 Developer.
VIII. OCCUPATION OF PREMISES
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
and following issuance of a Certificate of Occupancy.
IX. INSURANCE
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 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 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 FOR LITIGATION EXPENSES
The City and 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
IIIAgreement is for any reason held to be invalid by a court of competent
Subway Site Performance Agreement 091913.doc page 6 of 8
jurisdiction, such decision shall not affect or void any of the other provisions of
10 the Site Improvement Performance Agreement.
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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
XIII. 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, and after providing written notice and
opportunity to cure to 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.
Subway Site Performance Agreement 091913.doc page 7 of 8
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DEVELOPER CITY OF LINO LAKES
By
Developer Mayor
ATTEST:
By
City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF ANOKA )
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 (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
Subway Site Performance Agreement 091913.doc page 8 of 8