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HomeMy WebLinkAbout2003-091 Council Resolution• CITY OF LINO LAKES RESOLUTION NO. 03-91 RESOLUTION APPROVING THE PERFORMANCE AGREEMENT AND STORMWATER FACILITIES MAINTENANCE AGREEMENT WITH ROBERT MUELLER FOR A BUILDING AT 7960 LAKE DRIVE WHEREAS, the City Council approved a site and building plan with Resolution 03-45 on April 14th, 2003, and; WHEREAS, Section 2, Subd. 6.E.4. of the Lino Lakes Zoning Ordinance requires a performance agreement for all site plans, and Resolution 03 -45 such an agreement as a condition of approval, and; WHEREAS, the NPDES requirements and Lino Lakes surface water management plan include the requirement for a maintenance agreement for stormwater facilities; NOW, THEREFORE, BE IT RESOLVED that the Lino Lakes City Council hereby approves the Site Improvement Performance Agreement and the Operation and Maintenance Agreement for Stormwater Treatment Facilities between the City of Lino Lakes and Robert Mueller, and authorizes the Mayor and City Clerk to execute such agreements on behalf of the City. .1 Adopted by the Lino Lakes City Council this .23 - day of 2003 Al PEST: John J : erges n, Ma ' or EXHIBIT A: MUELLER PERFORMANCE CITY OF LINO LAKES AGREEMENT RESOLUTION NO. 03-45 RESOLUTION APPROVING A SITE AND BUILDING PLAN AND 1'hE ALLOCATION OF 0.73 ACRES OF COMMERCIAL MUSA WHEREAS, the City has received an application for a site and building plan to allow a the construction of an office building; and WHEREAS, the legal description of the property is: (see ATTACHMENT A) WHEREAS, the subject property currently is zoned CB Central Business; and WHEREAS, the site and building plan approval request is based on the following plans and related correspondence: Plan Set, Sheets 1 -3 (Grading, Drainage, and Erosion Control Plan; Site and Utility Plan; Landscaping and Tree Preservation Plan), prepared by Glenn Rehbein Companies, revised March 24, 2003. Certificate of Survey for Robert A. Mueller, prepared by Glenn Rehbein Companies, dated February 6, 2003. Architectural Plans, prepared by RJM and received by the City on February 10, 2003. Photometric Lighting Plan, prepared by RJM and received by the City on February 10, 2003. • TKDA Engineering Comments dated 3/6/03 WHEREAS, the site currently is not within the existing boundaries of the Metropolitan Urban Service Area (MUSA) but the requested MUSA allocation is consistent with the comprehensive plan and growth management policy because: • the site is guided for commercial use in the comprehensive plan, • the site is in a Stage 1 growth area • the City has MUSA reserve available for commercial development • the .proposed development is not premature and WHEREAS, at their meeting on March 12, 2003, the Planning & Zoning Board considered the site and building plan application and MUSA allocation and recommended approval subject to the conditions listed in the meeting minutes; and NOW, THEREFORE, BE IT RESOLVED that the Lino Lakes City Council hereby approves the allocation of 0.73 acres of commercial MUSA for the site, and BE IT FURTHER RESOLVED that the Lino Lakes City Council hereby approves the site and building plan and proposed project, with the following conditions: 1. The trash screening enclosure will use the same brick as the principal building. 2. Lighting must meet ordinance requirements of no more than 0.4 foot candles at the residential property line to the east, and no more than 1 0 at street centerlines. The applicant shall submit a new photometric plan that complies with these standards prior to commencement of site work. 3. The utility related modifications and comments as set forth in the City Engineer's memo, dated March 6, 2003, shall be incorporated into the final plans prior to commencement of site work. Plans shall be subject to City Engineer approval. 4. The grading and drainage related modifications and comments as forth in the City Engineer's memo, dated March 6, 2003, 4)a11 be incorporated into the plans prior to . commencement of site work. Plans shall be subject to City Engineer approval. 5. The grading and drainage plans shall be revised to include tree protection measures and measures to avoid soil compaction in designated infiltration areas New plans that include these must be submitted prior to commencement of site work. 6. The Landscaping Plan shall be revised to include City native seed schedule for all infiltration and ponding areas. The new plan must be submitted prior to commencement of site work. 7. Prior to commencement of site work, the applicant shall enter into a Site Performance Agreement with the City and any financial securities shall be submitted. Such agreement shall provide for ongoing maintenance of ponding and infiltration areas. Adopted by the Lino Lakes City Council this Pr:- day of ,Qr 2003 ATTEST: ohi T Bergeson, Mayor ATTACHMENT A City of Lino Lakes Resolution 03-45 Property Description That part of the north half of the north half of the Northwest. Quarter of Section 9, T. 31, R. 22, Anoka county Minnesota described as beginning at the intersection with the south line of said tract and the easterly right -of -way line of C.S.A.H. No. 23 (old highway No. 8) as now established; (said one -half right -of -way being 50 feet); thence east along said south line 288.70 feet; thence north at right angles 146.02 feet; thence west parallel with first described course 211.87 feet to said easterly right -of -way line of C.S.A.H. No. 23; thence southwesterly along said line 165 feet to the point of beginning. Except the north 77 feet of the east 62 feet thereof. Subject to easements, conditions, or restrictions of record. • • STAFF ORIGINATOR: C. C. MEETING DATE: TOPIC: VOTE REQUIRED: BACKGROUND AGENDA ITEM 7 C Jeff Smyser June 23, 2003 Resolution No. 03 -91: Approving the Performance Agreement and Stormwater Facilities Maintenance Agreement With Robert Mueller 3/5 The City Council approved the site and building plan for Robert Mueller's office building, on the comer of Lake Drive and James St., on April 14th of this year (Resolution 03 -45). For all commercial and institutional projects, the City requires a performance agreement to ensure that specific site work is completed. The attached performance agreement addresses the site work for the building. The new surface water management requirements of the NPDES (National Pollutant Discharge Elimination System) program also include a maintenance agreement for on site stormwater facilities. The City's surface water management plan incorporates those requirements. The attached agreement fulfills this need. OPTIONS 1. Approve Resolution 03 -91, approving the performance agreement and the stormwater facilities agreement with Robert Mueller. 2. Return to staff with direction. RECOMMENDATION Option 1 • • CITY OF LINO LAKES RESOLUTION NO. 03-91 RESOLUTION APPROVING THE PERFORMANCE AGREEMENT AND STORMWATER FACILITIES MAINTENANCE AGREEMENT WITH ROBERT MUELLER FOR A BUILDING AT 7960 LAKE DRIVE WHEREAS, the City Council approved a site and building plan with Resolution 03-45 on April 14th, 2003, and; WHEREAS, Section 2, Subd. 6.E.4. of the Lino Lakes Zoning Ordinance requires a performance agreement for all site plans, and Resolution 03-45 such an agreement as a condition of approval, and; WHEREAS, the NPDES requirements and Lino Lakes surface water management plan include the requirement for a maintenance agreement for stormwater facilities; NOW, THEREFORE, BE IT RESOLVED that the Lino Lakes City Council hereby approves the Site Improvement Performance Agreement and the Operation and Maintenance Agreement for Stormwater Treatment Facilities between the City of Lino Lakes and Robert Mueller, and authorizes the Mayor and City Clerk to execute such agreements on behalf of the City. Adopted by the Lino Lakes City Council this ,23 day of 2003 A'1"1'EST: CAE --,. Ann Blaic:ity Clerk EXHIBIT.A: MUELLER PERFORMANCE CITY OF LINO LAKES •AGREEMENT RESOLUTION NO. 03-45 RESOLUTION APPROVING A SITE AND BUILDING PLAN AND THE ALLOCATION OF 0.73 ACRES OF COMMERCIAL MUSA WHEREAS, the City has received an application for a site and building plan to allow a the construction of an office building, and WHEREAS, the legal description of the property is: (see ATTACHMENT A) and WHEREAS, the subject property currently is zoned CB Central Business; and WHEREAS, the site and building plan approval request is based on the following plans . and related correspondence: Plan Set, Sheets 1 -3 (Grading, Drainage, and Erosion Control Plan; Site and Utility Plan; Landscaping and Tree Preservation Plan), prepared by Glenn Rehbein Companies, revised March 24, 2003. Certificate of Survey for Robert A. Mueller, prepared by Glenn Rehbein Companies, dated February 6, 2003. Architectural Plans, prepared by RJM and received by the City on February 10, 2003. Photometric Lighting Plan, prepared by RJM and received by the City on February 10, 2003. TKDA Engineering Comments dated 3/6/03 WHEREAS., the site currently is not within the existing boundaries of the Metropolitan Urban Service Area (MUSA) but the requested MUSA allocation is consistent with the comprehensive plan and growth management policy because: • the site is guided for commercial use in the comprehensive plan, the site is in a Stage 1 growth area • the City has MUSA reserve available for commercial development • the .proposed development is not premature and WHEREAS, at their meeting on March 12, 2003, the Planning & Zoning Board considered the site and building plan application and MUSA allocation and recommended approval subject to the conditions listed in the meeting minutes; an NOW, THEREFORE, BE IT RESOLVED that the Lino Lakes City Council hereby approves the' allocation of 0.73 acres of commercial MUSA for the site, and BE IT FURTHER. RESOLVED that the Lino. Lakes City Council hereby approves the site and building plan and proposed project, with the following conditions: 1...: The trash screening enclosure will, use the same. brick as the principal building. 2. Lighting must meet ordinance requirements of no more than 0.4 foot candles . at the residential property line to the east, and no more than 10 at street centerlines. The applicant shall submit a new photometric plan that complies with these standards prior to commencement of site work. 3...The utility related modifications and comments as set forth in the City Engineer's memo, dated March 6, 2003, shall be incorporated into the final plans prior to commencement of site work. Plans shall be subject to City Engineer approval. 4. The grading and drainage related modifications and comments as forth in the City Engineer's memo, dated March 6, 2003, shall be. incorporated into the plans prior to . commencement of site. work. Plans shall be subject to City Engineer approval. 5. The grading and drainage plans shall be revised to include tree protection measures and measures to avoid soil compaction in designated infiltration areas. New plans that include these must be submitted prior to commencement of site work. 6. The Landscaping Plan shall be revised to include City native seed schedule for all infiltration and ponding areas. The new plan must be submitted prior to commencement of site work. 7. Prior to commencement of site work, the applicant shall enter into a Site Performance Agreement with the City and any financial securities shall be submitted. Such agreement shall provide for ongoing maintenance of ponding and infiltration areas. ATTACHMENT A City of Lino Lakes Resolution 03-45 Property Description That part of the north half of the north half of the Northwest. Quarter of Section 9, T. 31, R. 22, Anoka county Minnesota described as beginning at the intersection with the south line of said tract and the easterly right -of -way line of C.S.A.H. No. 23 (old highway No. 8) as now established; (said one -half right-of-way being 50 feet); thence east along said south line 288.70 feet; thence north at right angles 146.02 feet; thence west parallel with first described course 211.87 feet to said easterly right -of -way line of C.S.A.H. No. 23; thence southwesterly along said line 165 feet to the point of beginning. Except the north 77 feet of the east 62 feet thereof. Subject to easements, conditions, or restrictions of record. . • AGENDA ITEM 7 C STAFF ORIGINATOR: Jeff Smyser C. C. MEETING DATE: June 23, 2003 TOPIC: Resolution No. 03 -91: Approving the Performance Agreement and Stormwater Facilities Maintenance Agreement With Robert Mueller VOTE REQUIRED: 3/5 BACKGROUND The City Council approved the site and building plan for Robert Mueller's office building, on the corner of Lake Drive and James St., on April 14th of this year (Resolution 03 -45). For all commercial and institutional projects, the City requires a performance agreement to ensure that specific site work is completed. The attached performance agreement addresses the site work for the building. The new surface water management requirements of the NPDES (National Pollutant Discharge Elimination System) program also include a maintenance agreement for on site stormwater facilities. The City's surface water management plan incorporates those requirements. The attached agreement fulfills this need. OPTIONS 1. Approve Resolution 03 -91, approving the performance agreement and the stormwater facilities agreement with Robert Mueller. 2. Return to staff with direction. RECOMMENDATION Option. 1 CITY OF LINO LAKES, MINNESOTA SITE IMPROVEMENT PERFORMANCE AGREEMENT THIS AGREEMENT made this day of , 2003, 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 Robert A. Mueller, whose address is 1283 Mound Trail, Centerville, Minnesota, 55038, hereinafter referred to as the "Developer ". WHEREAS, the Developer has received approval of Site Development Plans, hereinafter called the "Plans ", by the City Council of the City on the 14th day of April, 2003, by Resolution No. 03-45 (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: That part of the North Half of the North Half of the Northwest Quarter of Section 9, T. 31, R. 22, Anoka County Minnesota described as beginning at the intersection with the south line of said tract and the easterly right -of -way line of C.S.A.H. No. 23 (old highway No. 8) as now established; (said one -half right -of- way being 50 feet); thence east along said south line 288.70 feet; thence north at right angles 146.02 feet; thence west parallel with first described course 211.87 feet to said easterly right -of -way line of C.S.A.H. No. 23; thence southwesterly along said line 165 feet to the point of beginning. Except the north 77 feet of the east 62 feet thereof. Subject to easements, conditions, or restrictions of record. NOW, THEREFORE, in consideration of the mutual promises of the parties made herein, MuellerPerformAgmt page 1 of 10 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 ". C. Developer shall enter into an operation and maintenance agreement for stormwater treatment facilities on the site. II. ON -SITE WORK. 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, tree preservation work 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. Lighting $ 4,200 2. Parking Lot Improvements $ 15,000 (curbing & bituminous) MuellerPerformAgmt page 2 of 10 3. Storm Drainage System $ 1,000 4. Landscaping $ 11,750 5. Site Grading/Erosion Control/Restoration $ 34,250 Total Estimated Cost of Developer $ 66,200 Improvements Security Requirement (Total * 125 %) $ 82,750 . OFF- Sl'1'E WORK A. Off -site Work. The Developer shall design and install, at the Developer's Expense, certain Off -site Work as follows: 1. Excavation, construction, restoration for driveway /access within James Street right of way. 2 Excavation, construction, restoration, for utilities connection (sanitary sewer, water) within Lake Drive right of way. Such improvements shall be completed in accordance with Section IV., set forth herein. B. Right- of -Way. The Developer shall be responsible for acquiring any right -of -way, temporary easements, or permanent easements necessary for the making of such improvements. 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 and Anoka County. 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 and County standards as a condition of City /County acceptance. In addition, the City and or County, shall have one or more City 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 /County 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 MuellerPerformAgmt page 3 of 10 by the City to review the program for the construction work. E. Record Plans. Within thirty (30) days after the completion of the improvements the Developer shall supply the City with a complete set of reproducible mylar "Record" drawings, and two complete sets of paper copy "Record" drawings, all prepared in accordance with City standards. An electronic copy of the plans shall also be submitted in an AutoCad DWG format. F. Cost Estimates. The Developer shall provide the City with a written estimate of all applicable costs of the Off -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 of and estimated Costs of Developer's Off- Site Work is as follows: Estimated Costs Excavation, construction, restoration for $ 2,500 driveway /access within James Street right of way. 2. Excavation, construction, restoration, for utilities connection (sanitary sewer, water) within Lake Drive right of way. $ 1,500 Total Estimated Cost of Developer Off -Site Work $ 4,000 Security Requirement (Total * 125 %) $ 5,000 COMPLETION DATE. 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 VII., unless an extension is granted by the City. 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 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 MuellerPerformAgmt page 4 of 10 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 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. B. 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 the requested reduction. 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 determined by the City Engineer. . REIMBURSEMENT OF COSTS. A. The Developer agrees to establish a noninterest 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: MuellerPerformAgmt page 5 of 10 1. Site Plan Review Fee (Existing escrow deficit) 2. Administration (Legal, Engineering, Planning, and Contract administration) 3. Engineering (Off -Site Improvements) a. Administration b. Plan Review c. Inspection Sanitary Sewer Trunk Area Fee (0.73 acres @ $2,270.00 per acre) Sanitary Sewer Trunk Unit Fee ($984.00 per unit)* 6. Water Trunk Area Fee (0.73 acres @ $2,421.00 per acre 7. Water Trunk Unit Fee ($1,588 per unit)* 8. Surface Water Management Fee (0.73 acres @ $0.075 per sq. ft.) ** ** Total Estimated (Budget) Costs for Escrow Account * ** To Be Determined (TBD) and collected upon Building Permit Issuance Includes subwatershed improvement credit of $0.065 per square foot * ** Total does not include Sanitary and Water Trunk unit fees $ 791.95 $ 1,500.00 $1,500.00 $ 1,657.10 TBD $ 1,767.33 TBD $ 2,384.91 $ 9,601.29 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. VII. REMEDIES FOR BREACH 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. MuellerPerformAgmt page 6 of 10 L 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 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 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 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 MuellerPerformAgmt page 7 of 10 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. 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 anyy portion thereof, including court costs and reasonable engineering and attorneys' fees if the City prevails in such action. 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. 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 notice given as above. 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. MuellerPerformAgmt page 8 of 10 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, 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 asj . City Clerk MuellerPerformAgmt page 9 of 10 STATE OF MINNESOTA ) )ss. COUNTY OF ANOKA ) On this d� C day of �i Q , 2003, before me, a Notary Public � (� �y within and for said County, personally appeared John Bergeson and Ann Blair, 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. STATE OF MINNESOTA ) COUNTY OF ANOKA ) On this r 3"day of , 2003, before me, a Notary Public within and for said County, personally appeared Robert A. Mueller (Developer), who executed the foregoing instrument. This instrument was drafted by: City of Lino Lakes 600 Town Center Parkway Lino Lakes, Minnesota 55014 USA M. HOGSTAD NOTARY PUBLIC- MINNESOTA My Commission Expires Jan. 31, 2005. MuellerPerformAgmt page 10 of 10 CITY OF LINO LAKES RESOLUTION NO. 03-45 RESOLUTION APPROVING A SITE AND BUILDING PLAN AND 'nit ALLOCATION OF 0.73 ACRES OF COMMERCIAL MUSA EXHIBIT A: MUELLER PERFORMANCE AGREEMENT WHEREAS, the City has received an application for a site and building plan to allow a the construction of an office building; and WHEREAS, the legal description of the property is (see ATTACHMENT A) and WHEREAS, the subject property currently is zoned CB Central Business; and WHEREAS, the site and building plan approval request is based on the following plans and related correspondence: • Plan Set, Sheets 1 -3 (Grading, Drainage, and Erosion Control Plan; Site and Utility Plan; Landscaping and Tree Preservation Plan), prepared by Glenn Rehbein Companies, revised March 24, 2003. • Certificate of Survey for Robert A. Mueller, prepared by Glenn Rehbein Companies, dated February 6, 2003. • Architectural Plans, prepared by RJM and received by the City on February 10, 2003. • Photometric Lighting Plan, prepared by RJM and received by the City on February 10, 2003. • TKDA Engineering Comments dated 3/6/03 and WHEREAS, the site currently is not within the existing boundaries of the Metropolitan Urban Service Area (MUSA) but the requested MUSA allocation is consistent with the comprehensive plan and growth management policy because: • the site is guided for commercial use in the comprehensive plan, • the site is in a Stage 1 growth area • the City has MUSA reserve available for commercial development the proposed development is not premature and WHEREAS, at their meeting on March 12, 2003, the Planning & Zoning Board considered the site and building plan application and MUSA allocation and recommended approval subject to the conditions listed in the meeting minutes; and NOW, THEREFORE, BE IT RESOLVED that the Lino Lakes City Council hereby approves the allocation of 0.73 acres of commercial MUSA for the site, and; BE IT FURTHER RESOLVED that the Lino Lakes City Council hereby approves the site and building plan and proposed project, with the following conditions: 1. The trash screening enclosure will use the same brick as the principal building. 2. Lighting must meet ordinance requirements of no more than 0.4 foot candles at the residential property line to the east, and no more than 1.0 at street centerlines. The applicant shall submit a new photometric plan that complies with these standards prior to commencement of site work. 3. The utility related modifications and comments as set forth in the City Engineer's memo, dated March 6, 2003, shall be incorporated into the final plans prior to commencement of site work. Plans shall be subject to City Engineer approval. 4. The grading and drainage related modifications and comments as set forth in the City Engineer's memo, dated March 6, 2003, shall be incorporated into the plans prior to commencement of site work. Plans shall be subject to City Engineer approval. 5. The grading and drainage plans shall be revised to include tree protection measures and measures to avoid soil compaction in designated infiltration areas New plans that include these must be submitted prior to commencement of site work. 6. The Landscaping Plan shall be revised to include City native seed schedule for all infiltration and ponding areas. The new plan must be submitted prior to commencement of site work. 7. Prior to commencement of site work, the applicant shall enter into a Site Performance Agreement with the City and any financial securities shall be submitted. Such agreement shall provide for ongoing maintenance of ponding and infiltration areas. Adopted by the Lino Lakes City Council this / y'= day of ,4r-i1 . 2003 ATTEST: Jo . Ber eson, Mayor ATTACHMENT A City of Lino Lakes Resolution 03-45 Property Description That part of the north half of the north half of the Northwest. Quarter of Section 9, T. 31, R 22, Anoka county Minnesota described as beginning at the intersection with the south line of said tract and the easterly right -of -way line of C.S.A.H. No. 23 (old highway No. 8) as now established; (said one -half right -of -way being 50 feet); thence east along said south line 288.70 feet; thence north at right angles 146.02 feet; thence west parallel with first described course 211.87 feet to said easterly right -of -way line of C.S.A.H. No. 23; thence southwesterly along said line 165 feet to the point of beginning Except the north 77 feet of the east 62 feet thereof. Subject to easements, conditions, or restrictions of record. OPERATION AND MAINTENANCE AGREEMENT FOR STORMWATER TREATMENT FEATURES THIS AGREEMENT made and entered into this day of 2003, by and between Robert A. Mueller , hereinafter referred to as "Owner" of the Property described below; and the City of Lino Lakes, a political subdivision of the State of Minnesota, hereinafter referred to as "City". That part of the North Half of the North Half of the Northwest Quarter of Section 9, T. 31, R. 22, Anoka County Minnesota described as beginning at the intersection with the south line of said tract and the easterly right -of -way line of C.S.A.H. No. 23 (old highway No. 8) as now established; (said one -half right -of -way being 50 feet); thence east along said south line 288.70 feet; thence north at right angles 146.02 feet; thence west parallel with first described course 211.87 feet to said easterly right-of-way line of C.S.A.H. No. 23; thence southwesterly along said line 165 feet to the point of beginning. Except the north 77 feet of the east 62 feet thereof. Subject to easements, conditions, or restrictions of record. WHEREAS, the City has required the Owner to provide onsite infiltration swales, stormwater pond, and associated facilities to manage runoff on the above described Property and do all related grading, slope work, and restoration in compliance with approved plans, and WHEREAS, the Lino Lakes City Council approved a site and building plan for the project with Resolution 03-45. NOW THEREFORE IT IS AGREED AS FOLLOWS: 1. The Owner assumes the full and sole responsibility for the condition, operation, repair, maintenance and management, at no cost to the City, for an on -site infiltration swales, stormwater pond, and associated facilities (System) which comply with the approved plans and Resolution 0345 for the purpose of receiving, retaining, treating and transporting all storm sewer water which may be collected within the System. 2. The City shall not under any circumstances be responsible for the on -going physical performance of any repairs, changes or alterations whatsoever to the System and . appurtenances and the City shall not be liable for the cost thereof. 3. The Owner agrees, at no cost to the City, to regularly: (1) Remove accumulated sediment from the System to maintain dead storage volume equivalent to the volume approved by the City, (2) maintain all native perennial vegetation in the System area in a way which does not comprise the effectiveness of the infiltration System, (3) maintain and trim all other shrubs and vegetation in the System are, (4) remove all litter and debris from the System, (5) repair or replace any grass or other vegetation in the System area disturbed by maintenance, (6) maintain the System outlet structure, page 1 of 3 (7) maintain soil infiltration capacity in infiltration swales, and (8) take all other and further steps which would be reasonably necessary for the purpose of maintaining the stormwater management feature. 4. The Owner agrees to indemnify, and hold harmless and defend the City from all present and future claims that may arise from the construction and maintenance of the System located on the Owner's property. 5. In the event that the City believes that the Owner is not maintaining the System in a fashion reasonably consistent with this Agreement, then the City may give written notice to the Owner detailing the deficiency in the manner in which the owner is maintaining the Pond. If, within 60 days after receipt of this notice, the deficiency described in the notice has not been corrected by the Owner, then the City may, without further notice, take any steps which it deems reasonably necessary in order to correct the deficiency; provided, however, that if the deficiency complained of in such notice is of such a nature that the same can be rectified or cured, but cannot with reasonable diligence be completed within said 60 -day period, then such deficiency shall be deemed to be rectified or cured if Owner shall, within said 60 -day period, commence to rectify and cure the same and shall thereafter complete such rectification and cure with all due diligence. If the Owner does not rectify or cure as provided herein, and the City corrects the deficiency, the Owner agrees to then reimburse the City within 30 days of receipt of invoice for all reasonable costs incurred, to include administrative overhead, by the City in correcting the deficiency. If this invoice is not paid within 30 days of receipt, or the Owner has not commenced an action to contest the reasonableness of the invoice, then the Owner agrees that the City may assess the cost against the Owner's property. In the event that it becomes necessary for the City to assess the cost of correcting the deficiency as provided herein, then the City is authorized to direct the County Assessor to certify this assessment against the Owner's real property described above, and the Owner waives any right to a public hearing and appeal of such assessment which may statutorily or constitutionally provided for. 6. That any notices required under this agreement shall be sent by certified mail, return receipt requested, or by personal service at the following address: Robert A. Mueller 1283 Mound Trail Centerville, MN 55038 FURTHER, IT IS AGREED that the provisions of this agreement shall be binding upon and enforceable against the parties hereto, their successors and assigns and all subsequent owners of the property here described. An executed copy of this agreement shall be filed with the Anoka County Recorder's Office/Registrar and be made a part of and be binding upon the above described property. This instrument will be unlimited in duration without being re- recorded. page 2 of 3 Dated: ‘1-497 - 4;7,3 Dated: Robert A. Mueller CITY OF LINO LAKES By: Its: ' Mannyor Gam By: - &.. • Its: City elerk 1 The foregoing instrument was acknowledged before me this 2003 by Robert A. Mueller (notary signature) (stamp) day of c„,),, LISA M. HOGSTAD f NOTARY PUBLIC - MINNESOTA My Commission Expires Jan. 31.2005 8 The foregoing instrument was acknowledged before me this day of c N1e._ 2003 by John Bergeson and Ann J. Blair of the City. of Lino Lakes, a political subdivision of the State of Minnesota, on behalf of the City of Lino Lakes (notary signature) (stamp) This instrument was drafted by: City of Lino Lakes 600 Town Center Parkway Lino Lakes, Minnesota 55014 USA M. HOGSTAD NOTARY PUBLIC - MINNESOTA My Commission Expires Jan. 31, 2005 page 3 of 3