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HomeMy WebLinkAbout2003-178 Council Resolution.r • CITY OF LINO LAKES RESOLUTION NO. 03-178 RESOLUTION APPROVING APOLLO CENTER SITE IMPROVEMENT PERFORMANCE AGREEMENT WHEREAS, the City Council approved a Conditional Use Permit and associated Site and Building Plans for the Apollo Center commercial development on October 13, 2003, and WHEREAS, the City's zoning ordinance and conditions of approval provide for the execution of a performance agreement to insure satisfactory completion of the improvements, NOW, THEREFORE BE IT RESOLVED THAT Lino Lakes City Council approves the Site Improvement Performance Agreement with McCollough and Sons, Inc., and authorizes the Mayor and City Clerk to execute such agreement on behalf of the City. • Adopted by the Lino Lakes City Council this 13th day of October, 2003. John J. Ber son, Mayor ATTEST: 4!. Ann Blair, City Clerk • • • STAFF ORIGINATOR: C. C. MEETING DATE: TOPIC: VOTE REQUIRED: BACKGROUND: AGENDA ITEM 7E (i) Michael Grochala October 13, 2003 Consideration of Resolution No. 03-178 Approving Apollo Center Site Improvement Performance Agreement Simple Majority The City Council is considering approval of a Conditional Use Permit for an Automobile and Truck Repair Facility as part of an approximately 15,000 square foot retail and service center, with conditions per Resolution No. 03-177 on October 13, 2003. In accordance with the condition of approval staff has prepared a Site Improvement Performance Agreement. The agreement provides for the following: 1. Submittal by the developer of a Letter of Credit representing thirty-five (35) percent of the site improvement costs to insure completion of the project in accordance with the approved plans. 2. Deposit of a cash escrow to reimburse the City for costs incurred by the City related to the development and improvement of the site and assessments for previously installed public improvements. The developer has reviewed the agreement and is aware of the conditions setforth. RECOMMENDATION: Staff is recommending approval of Resolution No. 03-178 approving the Site Performance Agreement. ATTACHMENTS 1. Resolution No. 03-178 2. Site Performance Agreement • 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 McCullough and Sons, Inc., whose address is 20335 Forest Boulevard, Forest Lake, Minnesota, 55025 hereinafter referred to as the "Developer". WHEREAS, the Developer has received approval with conditions of a Conditional Use Permit for an Automobile Repair Facility by the City Council of the City on the 13th day of October, 2003 by Resolution No. 03-178 (Exhibit A) in accordance with the Site Development Plans, hereinafter called the "Plans" all which are made a part hereof by reference. In consideration of such approval, the Developer, its successors and assigns, does covenant and agree to perform the work as set forth in the Plans, in the aforesaid approval, and as hereinafter set forth upon the real estate (hereinafter referred to as "Property") described as follows: [INSERT LEGAL DESCRIPTION] NOW, THEREFORE, in consideration of the mutual promises of the parties made herein, IT IS AGREED BY AND BETWEEN THE PARTIES HERETO: THE WORK Developer's Work The 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, site grading, and erosion control measures. COST ESTIMATES The Developer shall provide the City with a written estimate of all applicable costs of the 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. Cost of Developer's Improvements, and description are as follows: Description of Improvements Estimated Costs 1. Earthwork $29,255.00 2. Lighting $4,000.00 3. Trash Disposal Enclosures, sign base $21,000.00 4. Curbing/Islands/Delineators $17,550.00 5. Storm Drainage System/ Sewers/ Catch B asins/Culverts/S wales $21,734.00 6. Driveway/Curbcut/Parking Lot/Fire Lane Sidewalk Construction $93,157.00 7. Watermains/Hydrants/Sanitary Sewers $24,249.00 8. Landscaping $17,500.00 9. Demolition $5,000.00 10. Erosion Control $3,300.00 Total Estimated Cost of Developer Improvements $236,745.00 Security Requirement (Total x .35) $82,861.00 • 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 (except as to landscaping and similar site improvements that cannot reasonably be completed due to weather or seasonal conditions), the site approval shall no longer be in effect, and application and approval of site and building plans shall be required. GUARANTEE 1. Faithful Performance of Construction Contracts and Letters of Credit. The Developer will fully and faithfully comply with all terms and conditions of any and all contracts entered into by the Developer for the installation and construction of all Developer's improvements and hereby guarantees the workmanship and materials for a period of one year following the City's final acceptance of the Developer's improvements. Concurrently with the execution hereof by the Developer, the Developer will furnish to, and at all times thereafter maintain with the City, a cash deposit, certified check, or Irrevocable Letter of Credit, based on thirty-five (35%) percent of the total estimated cost of Developer's improvements. An Irrevocable Letter of Credit shall be for the exclusive use and benefit of the City of Lino Lakes and shall state thereon that the same is issued to guarantee and assure performance by the Developer of all the terms and conditions of this Site Improvement Performance Agreement 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 Agreement. The Irrevocable Letter of Credit shall be renewed or replaced by not later than thirty (30) days prior to its expiration with a like letter. • 2. Reduction of Escrow Guarantee. The Developer shall be entitled to 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 amount of reduction will be reasonably determined by the City Engineer. REIMBURSEMENT OF COSTS 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 costs incurred by the City related to the development and improvement of the site, Public Improvements and Developer improvements, including, but not limited to, the following: 1. Administration (Planning, Engineering, Legal, etc.) $2,000.00 2. Sanitary Sewer Trunk unit charge (5of units @$984 per SAC unit). $4,920.00 • 3. Water Trunk Area Changes 1.61 acres @ 2,421 per acre $3,897.81 3. Water Trunk unit charge (6 of units @ $1,588 per SAC unit). $9,528.00 4. Water Main Front Foot Charge (280 ft at $23 per Foot) $6,440.00 Total Estimated (Budget) Costs for Escrow Account $26,785.81 If the above escrow amounts are insufficient, the Developer shall make such additional deposits as required by the City. The City shall have a right to reimburse itself from the Escrow. 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 in writing of its intention to cure the default within 10 days thereafter (or such longer period as may be reasonably required to cure the default if such cure cannot reasonably be completed within such 10 -day period), the City may proceed with the remedy it deems appropriate. • 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 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 not less than 10 days' prior written notice (or such longer period as may be reasonably required to cure the default if Developer has commenced cure of such default and such cure cannot reasonably be completed within such 10 - day period), 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,. 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. • • • 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 (other than landscaping and similar site improvements that cannot reasonably be completed due to weather or seasonal conditions) as more fully described in the approved plans and following issuance of a Certificate of Occupancy. 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 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 any 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. 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. 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. 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. CERTIFICATES City without charge shall from time to time, upon not less than 15 days' written request by Developer, certify to the Developer and any other party having or acquiring an ownership, leasehold or security interest in the Property, to the extent true, that this Site Improvement Performance Agreement has not been supplemented or amended, specifying the amount of cash or letter of credit that is on deposit under this Agreement, that neither City nor Developer is in default under this Agreement, and containing such other information as may be reasonably requested. Upon completion of the Work and expiry of the Developer's one-year guarantee period following the City's final acceptance of the Developer's improvements, City without charge shall issue a certificate of completion in recordable form confirming that Developer has performed all of its obligations under this Site Improvement Performance Agreement and this Site Improvement Performance Agreement is of no further force or effect. • r DEVELOPER CITY OF LINO LAKES Developer By ATTEST: / Mayor By / Clerk • STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) On this day of , 20, before me, a Notary Public 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. Notary Public STATE OF ) ) ss. COUNTY OF ) On this day of , 20, before me, a Notary Public within and for said County, personally appeared (Developer), to me known to be the , of , a corporation under the laws of the State of , and that they/he executed the foregoing instrument and acknowledged that they/he executed the same on behalf of said corporation. Notary Public This instrument was drafted by: William G. Hawkins and Associates 2140 Fourth Avenue North Anoka, MN 55303