HomeMy WebLinkAboutItem 06.jAugust 12, 2015 a Item No.
SITE IMPROVEMENT PERFORMANCE AGREEMENT WITH HY-VEE, INC.
August 17, 2015 City Council Meeting
Proposed Action
Staff recommends adoption of the following motion: Move to approve Site Improvement
Performance Agreement with Hy -Vee. Inc.
Passage of this motion will allow Hy -Vee, Inc. to construct a commercial grocery building, gas
station, convenience store and car wash on Lots 1 and 2, Spirit of Brandtjen Farm Commercial
1St Addition.
Overview
Hy -Vee, Inc., property owner of Lots 1 and 2, Spirit of Brandtjen Farm Commercial 1St Addition,
is requesting approval of a Site Improvement Performance Agreement (SIPA) in combination
with their site plan application. Approval of the SIPA will allow public sanitary sewer and
watermain construction in coordination with the building improvements. Hy -Vee must
submit a security in the amount listed in the SIPA prior to constructing public utility
improvements. The public utility improvements will be tested and inspected by WSB and
Associates and the Public Works Department.
Primary Issues to Consider
• What is the status of the site plan application? The site plan application was approved
on July 28, 2015.
Supporting Information
• Site Improvement Performance Agreement
W-f-41�__ '
LGRA..
Financial Impact: $0 Budgeted:
Related Documents (CIP, ERP, etc.):
Community Values: Design that Connects the Commun
N/A Source:
(reserved for recording information)
SITE IMPROVEMENT PERFORMANCE
AGREEMENT
HY- VEE, INC.
AGREEMENT dated , 2015, by and between the CITY OF LAKEVILLE, a
Minnesota municipal corporation ("City") and HY-VEE, INC., an Iowa corporation ("Developer").
1. BACKGROUND.
A. Developer owns property in the City of Lakeville, Minnesota, legally described as
Lots 1 and 2, Block 1, SPIRIT OF BRANDTJEN FARM COMMERCIAL 1ST ADDITION, Dakota County,
Minnesota (hereinafter referred to as the "Subject Property").
B. Developer has submitted a site plan application for construction of a 89,411 square
foot Commercial Grocery Building with a 4,097 square foot Gas Station and Convenience store and 2,974
square foot car wash, a private shared access drive network and parking lots, private sidewalk, and the
installation of public sanitary sewer and watermain and private storm sewer improvements.
2. CONDITIONS OF APPROVAL. This Agreement is a condition of City site plan approval
and will be recorded against the Subject Property.
182839v2
3. PLANS. The Subject Property shall be developed in accordance with the following plans
which are on file with the City. The plans shall not be attached to this Agreement. If the plans vary from the
written terms of this Agreement, the written terms shall control. The plans ("Plans") are:
Plan A — Site Plan
Plan B — Erosion Control Plan
Plan C — Plans and Specifications for Public Improvements
No work shall occur outside of the areas indicated on the Plans without modifying this Agreement or
obtaining a separate grading permit.
4. EROSION CONTROL. Prior to initiating construction of public utilities, the Erosion Control
Plan, Plan B, shall be implemented by the Developer and inspected and approved by the City or Dakota
County Soil and Water Conservation District. The City or Dakota County Soil and Water Conservation
District may impose additional erosion control requirements if they would be beneficial. All areas disturbed
by the grading operations shall be stabilized per the Minnesota Pollution Control Agency ("MPCA")
Stormwater Permit for Construction Activity. Seed shall be in accordance with the City's current seeding
specification which may include temporary seed to provide ground cover as rapidly as possible. All seeded
areas shall be fertilized, mulched, and disc anchored as necessary for seed retention. The parties
recognize that time is of the essence in controlling erosion. If the Developer does not comply with the
MPCA Stormwater Permit for Construction Activity or with the Erosion Control Plan, Plan A, and schedule
or supplementary instructions received from the City or the Dakota County Soil and Water Conservation
District, the City may take such action as it deems appropriate to control erosion. The City will endeavor to
notify the Developer in advance of any proposed action, but failure of the City to do so will not affect the
Developer's and City's rights or obligations hereunder. If the Developer does not reimburse the City for any
cost the City incurred for such work within ten (10) days of receipt of notice thereof, the City may draw on
down the letter of credit to pay any costs. No development or utility construction will be allowed and no
building permits will be issued unless the Plat is in full compliance with the approved Erosion Control Plan.
182839v2 2
5. LICENSE. Developer hereby grants the City, its agents, employees, officers and
contractors a license to enter the Subject Property to perform all work and inspections deemed appropriate
by the City in conjunction with site development.
6. CONSTRUCTION ACCESS. Construction traffic access and egress for grading and public
utility construction will be as shown on the approved plans and minimize impacts to wetlands and
associated buffers.
7. PUBLIC IMPROVEMENTS. The improvements shall be installed in accordance with City
standard specifications for utility and street construction; and any other ordinances including Section 11-16-
7 of the City Code concerning erosion and drainage and Section 4-1-4-2 prohibiting grading, construction
activity, and the use of power equipment between the hours of 10 o'clock p.m. and 7 o'clock a.m. The
Developer shall submit plans and specifications which have been prepared by a competent registered
professional engineer to the City for approval by the City Engineer. The Developer shall instruct its
engineer to provide adequate field inspection personnel to assure an acceptable level of quality control to
the extent that the Developer's engineer will be able to certify that the construction work meets the
approved City standards as a condition of City acceptance. In addition, the City may, at the City's discretion
and at the Developer's expense, have one or more City inspectors and a soil engineer inspect the work on
a part-time basis. The Developer, its contractors and subcontractors, shall follow all instructions received
from the City's inspectors. The Developer's engineer shall provide for on-site project management. The
Developer's engineer is responsible for design changes and contract administration between the Developer
and the Developer's contractor. The Developer or its engineer shall schedule a pre -construction meeting
at a mutually agreeable time at the City with all parties concerned, including the City staff, to review the
program for the construction work. Within thirty (30) days after the completion of the improvements and
before the security is released, the Developer shall supply the City with a complete set of reproducible "as
constructed" plans and an electronic file of the "as constructed" plans in an AutoCAD .DWG file or a .DXF
file, all prepared in accordance with City standards.
182839v2 3
8. TIME OF PERFORMANCE. The Developer shall install all required public improvements
by November 30, 2016.
9. SANITARY SEWER. The Developer shall install sanitary sewer improvements within the
Subject Property and the public drainage and utility easements located within Outlots A and B, Spirit of
Brandtjen Farm Commercial 1St Addition as identified in the Plans consistent with the approved Plans and
Specifications for public utilities.
The Sanitary Sewer Connection Charge shall be collected for the proposed building expansion prior
to the issuance of a building permit.
10. WATERMAIN IMPROVEMENTS. The Developer shall install watermain improvements
within the Subject Property and within public easements located within Outlots A and B, Spirit of Brandtjen
Farm Commercial 1St Addition. The water service must be extended within the Subject Property to provide
water and fire suppression service to the proposed buildings.
11. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from
construction work by the Developer, subcontractors, their agents or assigns. Prior to any construction in the
plat, the Developer shall identify in writing a responsible party and schedule for erosion control, street
cleaning, and street sweeping.
12. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction
required by this Agreement and final acceptance by the City, the public improvements identified in the
Plans and Specifications for Public Utilities lying within public easements shall become City property
without further notice or action.
13. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. The
Developer shall pay a fee for in-house engineering administration. City engineering administration will
include monitoring of construction observation, consultation with Developer and its engineer on status or
problems regarding the project, coordination for final inspection and acceptance, project monitoring during
the warranty period, and processing of requests for reduction in security. Fees for this service shall be
three percent (3%) of construction costs identified in the Summary of Security Requirements if using a
182839v2 4
letter of credit, assuming normal construction and project scheduling. The Developer shall pay for
construction observation performed by the City's in-house engineering staff or consulting engineer.
Construction observation shall include part time inspection of proposed public utilities and street
construction and will be billed on hourly rates estimated to be seven percent (7%) of the estimated
construction cost.
14. SECURITY REQUIREMENTS. To guarantee compliance with the terms of this Agreement
and all of the Plans, payment of the costs of all public improvements, and construction of all public
improvements the Developer shall furnish the City with a letter of credit in the form attached hereto, from a
bank ("security") for $187,025.62, plus a cash fee of $4,816.11for City engineering administration. The
amount of the security was calculated as follows:
A. Sanitary Sewer
B. Watermain
CONSTRUCTION SUB -TOTAL
OTHER COSTS:
A. Developer's Design (6.0%)
B. Developer's Construction Survey (2.5%)
C. City Legal Expenses (Est. 0.5%)
D. City Construction Observation (Est. 7.0%)
E. Developer's Record Drawings (0.5%)
OTHER COSTS SUB -TOTAL
TOTAL PROJECT SECURITIES:
$56,956.00
103,581.00
$160,537.00
$9,632.22
4,013.43
802.69
11,237.59
802.69
$26,488.62
$187,025.62
This breakdown is for historical reference; it is not a restriction on the use of the security. The bank shall be
subject to the approval of the City Administrator. The City may draw down the security, on five (5) business
days written notice to the Developer, for any violation of the terms of this Contract or without notice if the
security is allowed to lapse prior to the end of the required term. If the required public improvements are not
completed at least thirty (30) days prior to the expiration of the security, the City may also draw it down
without notice. If the security is drawn down, the proceeds shall be used to cure the default. Upon receipt of
proof satisfactory to the City that work has been completed and financial obligations to the City have been
182839v2 5
satisfied, with City approval the security may be reduced from time to time by ninety percent (90%) of the
financial obligations that have been satisfied. Ten percent (10%) of the amounts certified by the
Developer's engineer shall be retained as security until all improvements have been complete, all financial
obligations to the City satisfied, the required "as constructed" plans have been received by the City, a
warranty security is provided, and the public improvements are accepted by the City Council. The City's
standard specifications for utility and street construction outline procedures for security reductions.
15. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash
requirements under this Contract which must be furnished to the City:
City Engineering Administration (3.00%) $4,816.11
TOTAL CASH REQUIREMENTS 14ME.11
16. WARRANTY. The Developer warrants all improvements required to be constructed by it
pursuant to this Contract against poor material and faulty workmanship. The warranty period for
underground utilities is two years and shall commence following completion and acceptance by City
Council. The Developer shall post maintenance bonds in the amount of twenty-five percent (25%) of final
certified construction costs to secure the warranties. The City shall retain ten percent (10%) of the security
posted by the Developer until the maintenance bonds are furnished to the City or until the warranty period
expires, whichever first occurs. The retainage may be used to pay for warranty work. The City's standard
specifications for utility construction identify the procedures for final acceptance of utilities.
17. SPECIAL PROVISIONS. Approval of the site plan and site development is subject to the
following conditions:
A. The Subject Property must be developed in accordance with the Plans approved by the
City.
B. Developer shall install and pay for the public improvements located within the Subject
Property and Outlots A and B, Spirit of Brandtjen Farm Commercial 1 st Addition.
C. Developer shall comply with requirements as stipulated by Dakota County,
18. RESPONSIBILITY FOR COSTS.
182839v2 6
A. The Developer shall pay all reasonable costs incurred by it or the City in conjunction
with the development of the site and installation of public improvements, including but not limited to legal,
planning, engineering and inspection expenses incurred in connection with approval of the site plan, the
preparation of this Agreement, review of any other plans and documents.
B. The Developer shall hold the City and its officers, employees, and agents harmless
from claims made by itself and third parties for damages sustained or costs incurred resulting from site
approval and development of the site and installation of public improvements. The Developer shall
indemnify the City and its officers, employees, and agents for all costs, damages, or expenses which the
City may pay or incur in consequence of such claims, including attorneys' fees.
C. In the event the City is successful in litigation to enforce the terms of this Agreement,
the Developer shall reimburse the City for costs incurred in litigation and subsequent enforcement of this
Agreement, including reasonable engineering and attorneys' fees.
D. The Developer shall pay in full all bills submitted to it by the City for obligations
incurred under this Agreement within thirty (30) days after receipt. If the bills are not paid on time, the City
may halt site development and construction until the bills are paid in full. Bills not paid within thirty (30)
days shall accrue interest at the rate of eight percent (8%) per year.
19. MISCELLANEOUS.
A. Third parties shall have no recourse against the City under this Agreement.
B. Breach of the terms of this Contract by the Developer shall be grounds for denial of
building permits, including lots sold to third parties.
C. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this
Agreement is for any reason held invalid, such decision shall not affect the validity of the remaining portion
of this Agreement.
D. If building permits are issued prior to the acceptance of public improvements, the
Developer assumes all liability and costs resulting in delays in completion of public improvements and
damage to public improvements caused by the City, Developer, its contractors, subcontractors, material
182839v2
men, employees, agents, or third parties. No sewer and water connections or inspections may be
conducted and no one may occupy a building for which a building permit is issued on either a temporary or
permanent basis until the streets needed for access have been paved with a bituminous surface and the
utilities are accepted by the City Engineer.
E. The action or inaction of the City shall not constitute a waiver or amendment to the
provisions of this Agreement. To be binding, amendments or waivers shall be in writing, signed by the
parties and approved by written resolution of the City Council. The City's failure to promptly take legal
action to enforce this Agreement shall not be a waiver or release.
F. This Agreement shall run with the land and may be recorded against the title to the
Subject Property. The Developer covenants with the City, its successors and assigns, that the Developer
has fee title to the Subject Property and/or has obtained consents to this Agreement, in the form attached
hereto, from all parties who have an interest in the property; that there are no unrecorded interests in the
property; and that the Developer will indemnify and hold the City harmless for any breach of the foregoing
covenants.
G. The Developer and its contractor shall acquire 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 their subcontractors or by one directly or indirectly employed by any of
them. The insurance must be maintained until six (6) months after the City has accepted the public
improvements. Limits for bodily injury and death shall be not less than $500,000 for one person and
$1,000,000 for each occurrence; limits for property damage shall be not less than $200,000 for each
occurrence; or a combination single limit policy of $1,000,000 or more. The City shall be named as an
additional insured on the policy on a primary and noncontributory basis, and the Developer and contractor
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 Developer and contractor must provide a Certificate of Insurance which meets the
following requirements:
182839v2 g
1. The Description section of the Accord form needs to read "City of Lakeville is named
as Additional Insured with respect to the General Liability and Auto Liability policies
on a Primary and Non -Contributory Basis." Each policy shall provide 10 days' notice
of cancellation to City of Lakeville.
2. Certificate Holder must be City of Lakeville.
3. Provide copy of policy endorsement showing City of Lakeville named as Additional
Insured on a Primary and Non -Contributory Basis.
H. The Developer and its contractor shall obtain Workmen's Compensation Insurance
in accordance with the laws of the State of Minnesota, including Employer's Liability Insurance, to the limit
of $100,000.00 each accident.
Each right, power or remedy herein conferred upon the City is cumulative and in
addition to every other right, power or remedy, express or implied, now or hereafter arising, available to
City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein
set forth or otherwise so existing may be exercised from time to time as often and in such order as may be
deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any
other right, power or remedy.
J. The Developer may not assign this Contract without the written permission of the
City Council. The Developer's obligation hereunder shall continue in full force and effect even if the
Developer sells one or more lots, the entire plat, or any part of it.
K. Breach of the terms of this Agreement by the Developer, including nonpayment of
billings from the City, shall be grounds for denial of building permits and certificates of occupancy, and the
halting of all work on the property.
L. The Developer represents to the City that the development complies with all city,
county, metropolitan, state, and federal laws and regulations, including but not limited to: subdivision
ordinances, zoning ordinances, and environmental regulations. If the City determines that the development
does not comply, the City may, at its option, refuse to allow construction or development work in the
development until the Developer does comply. Upon the City's demand, the Developer shall cease work
until there is compliance.
182839v2 9
20. DEVELOPER'S DEFAULT. In the event of default by the Developer as to any of the work
to be performed by it hereunder, the City may, at its option, perform the work and the Developer shall
promptly reimburse the City for any expense incurred by the City, provided the Developer, except in an
emergency as determined by the City, is first given notice of the work in default, not less than ten (10) days
in advance. This Agreement is a license for the City to act, and it shall not be necessary for the City to seek
a Court order for permission to enter the land. When the City does any such work, the City may, in addition
to its other remedies, assess the cost in whole or in part.
21. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand
delivered to the Developer, its employees or agents, or mailed to the Developer by certified mail at the
following address: 5820 Westown Parkway, West Des Moines, Iowa 50266, Attn: Legal Dept. Notices to
the City shall be in writing and shall be either hand delivered to the City Administrator, or mailed to the City
by certified mail in care of the City Administrator at the following address: Lakeville City Hall, 20195
Holyoke Avenue, Lakeville, Minnesota 55044.
[The remainder of this page has been intentionally left blank.
Signature pages follow.]
182839v2 10
(SEAL)
STATE OF MINNESOTA
)ss.
COUNTY OF DAKOTA
CITY OF LAKEVILLE
X31
The foregoing instrument was acknowled
2015, by Matt Little and by Charlene Friedges,
Lakeville, a Minnesota municipal corporation, on
granted by its City Council.
Matt Little, Mayor
Charlene Friedges, City Clerk
ged before me this
respectively the Mayor
behalf of the corporation
NOTARY PUBLIC
182839v2 11
—, day of ,
and City Clerk of the City of
and pursuant to the authority
DEVELOPER:
HY-VEE, INC.
BY:
J5r ar , ' Vice President
By:
Nathan Allen, its Assistant Secretary
'OWa-
STATE OF #f##4ES&T4 )
COUNTY OF k ))ss.
To
The foregoing instrument was acknowledged before me this ( O day of Q u ck u VT ,
2015, by Jeffrey Markey and Nathan Allen, the Sr. Vice President and Assistant Secretary of -Vee, Inc.,
an Iowa corporation, on its behalf.
=�PVOL VICKI K. ARCHER NOTARY PUBLIC
COMMISSION NO. 190092
MY COMMISSION EXPIRES
gown 5 . 1'�- 07 b I
DRAFTED BY:
CAMPBELL, KNUTSON
Professional Association
1380 Corporate Center Curve, Suite #317
Eagan, MN 55121
Telephone: 651-452-5000
AMP/cjh
182839v2 12