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HomeMy WebLinkAbout2000-01-06 Attorney Clinton Ltr to OPH & Applicant01/06/00 11:39 FAX Dana1d J. Fiuegcl Shawn M. Moynihan Jack W. Clinton '`" Joan M. Fluegel January 6, 2000 Sent Via Fax Mr. Thomas M. Melena Administrator City of Oak Park Heights 14168 N 57' St PO Box 2007 Oak Park Heights MN 65082-2007 651-439-4439 Dear Mr. Melena & Mr. Muyskens: Very truly yours, FLUEGEL, MOYNIHAN & CLINTON, P.A. Jack VV, Clinton JWO /rl k OAK71 140 - 01 Enclosure FLUEGEL MOYNIHAN FLUEGEL, MOYNIHAN & CLINTON', P.A. Attorneys At Law 1303 South Frontage Road, Suite 5 Hastings, MN 55033 -2477 RE: Our Client: Oak Park Heights Project: USPS Annex Facility DICTATED BUT NOT READ Mr. Steve G. Muyskens 6800 West 54th St Building 8 #100 Overland Park KS 66202 -4179 913-261-2510 1 am enclosing the revised Development Agreement for your review and comment. 1 have incorporated the information that 1 received from Kim Richards and Tom Melena at a meeting with them on January 3. 1 am going to be in meetings and depositions all day today, thus if you have any revisions or changes, please call me on Friday and 1 will make any revisions after your respective reviews. lI002 Telephone 651- 438 -9777 Fax 651-438-9775 !spoke to Steve Muyskens on the afternoon of January 5. He explained to me the wording he was going to fax me relating to the escrow provisions contained in paragraph 6.6.2. As I understand it from Mr. Muyskens, that paragraph will be replaced by wording that will provide for payment after receipt of an invoice, after inspection and acceptance, and then within 30 days thereof pursuant to the prompt payment act, 1 will have to make further revisions to that wording and will forward that to you on Friday. *Also admitted to practice in Wisconsin :* Certified as a Real Property Law Specialist by Minnesota State Bar Association 01/08/00 11 :39 FAX WITNESSETH; That: (the "Property "), and 1/6/00 FLUEGEL MOYN I HAN ,✓ DICTATED BUT NOT READ CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA DEVELOPER'S AGREEMENT 1 003 THIS AGREEMENT, made and entered into this day of January, 2000 by and between the City of Oak Park Heights, a municipal corporation under the laws of the State of Minnesota (hereinafter the "City"), and United States Postal, (hereinafter "USPS"). WHEREAS, the seller of the Property proposed to be purchased by the USPS has made application to the City Council for vacation of drainage and utility easements between the real property described as follows: Lots 1 and 2. Block 2 Kern Center Second Addition WHEREAS, the City Council has agreed to undertake the process to vacate the drainage and utility easements between the two lots of the Property and approve the terms that USPS construct its facility on the Property and providing under the terms of this Agreement stipulating the conditions for the installation of private improvements as well as the development of on -site improvements hereinafter described, all in accordance with the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual promises mutual promises and conditions hereinafter contained, it is hereby agreed as follows: Designation of Improvements: Offsite Improvements to be installed at USPS's expense by USPS as hereinafter provided are hereinafter referred to as "Plan A Improvements" 1. PLAN A IMPROVEMENTS: USPS will construct at it's own expense the following improvements under Plan A as to Lot under which it is constructing its Facility according to the following terms and conditions: A. USPS shall do all site grading including building sites, common greenway and open spaces, storm water storage ponds, surface drainage ways and all private driveways including sodding of boulevards, all in accordance with the approved grading, , drainage and site plan. A grading plan with maximum two (2) foot contours, building elevations, drainage provisions, erosion control provisions and cross sections, as necessary, has been submitted to and reviewed by the City prior to commencement of any site grading. Any changes to the grading plan in excess of six inches during construction shall be submitted to the City for approval in a timely manner. 01/06/00 11:40 FAX FLUEGEL IiiOYN I HAN 1/6/00 2 contractor shall control soil erosion ensuring: r B. USPS's general . All development shall conform to the natural limitations presented by the topography and soil of the subdivision in order to create the best potential for preventing soil erosion. USPS shall submit an erosion control plan, detailing all erosion control measures to be implemented during construction, said plan shall be approved by the City prior to the commencement of site grading or construction. 2004 a Erosion and siltation control measures shall be coordinated with the different stages of construction. Appropriate control measures shall be installed prior to construction when necessary to control erosion and shall be maintained during construction. 3. Land shall be developed in increments of workable size such that adequate erosion and siltation controls can be provided as construction progresses. The smallest practical area of land shall be exposed at any one period of time. 4. Where the topsoil is removed, sufficient arable soil shall be set aside for respreading over the developed area. The topsoil shall be restored to a depth of at least four (4) inches and shall be of a quality at least equal to the soil quality prior to development. C. USPS has place iron monuments at all lot and block corners and at all other angle points on boundary lines. Iron monuments shall be replaced, if necessary, after all street and lawn grading has been completed in order to preserve the lot markers for future property owners. D. USPS shall be responsible for maintaining the location of and protecting curb stops, water services and sewer services. Any service or curb stop damaged shall be repaired or replaced as specified by the City. USPS shall make all necessary adjustments to the curb stops to bring them flush with the topsoil (after grading) or driveway surface. E. USPS shall be required to provide landscaping and screening in accordance with the site plan submitted as part of the application for the approval of the easement vacation and as required by the ordinances of the City. a USPS shall be responsible for street maintenance, including curbs, boulevards, sod and street sweeping until the project is complete. All streets shall be maintained free of debris and soil until the subdivision is completed. Warning signs shall be placed when hazards develop in streets to prevent the public from traveling on same and directing attention to detours. If and when the street becomes impassible, such streets shall be barricaded and closed. In the event buildings are occupied prior to completing streets, USPS shall maintain a smooth driving surface and adequate drainage on Memorial Drive and 55t Street 01/06/00 11:40 FAX 1 /6/00 FLUEGEL MOYNIHAN 005 extensions. USPS shall be responsible for the removal of snow from all gravel streets. The repair of any damage done to the streets or public utilities shall be the financial responsibility of USPS. H. USPS shall furnish lights and site improvements in accordance with the approved site plan and with the City's Design Guidelines and Zoning Ordinance. I, USPS shall be responsible for storm sewer cleaning and holding pond dredging, as required, by the City prior to completion of the development J. LISPS shall be responsible for securing all necessary approvals and permits for offsite improvements from all appropriate federal, state, regional and local jurisdictions prior to the commencement of site grading or construction . 2. DESCRIPTION OF PLAN A IMPROVEMENTS ESTIMATED COST 1. Boulevard and Swale sod $ 3,400.00 2. Landscaping $ 500.00 3. Street signs $ nia 4. Street lights 500 .00 5. Grading $ 1 5,000.00 6. Pond grading and seeding $ nia 7. Erosion Control $ 2,700 8. Pond Protection & Restoration $ 2,500.00 9 Utility Protection & Repair $ 500.00 10. Street Protection & Repair 2,000.00 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: $ 26,600.00 ESTIMATED ENGINEERING, LEGAL AND ADMINISTRATIVE (20%): $ 5,320.00 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: $ 31 ,920.00 TOTAL PLAN A ESCROW $ 32,420.00 3 01/06/00 11 :40 FAX 1 /6100 FLUEGEL MOYNIHAN Lots 1 & 2 $53,508.00 4 3. CONSTRUCTION OF PLAN A IMPROVEMENTS. AR Construction. The construction, installation, materials and equipment shall be in accordance with the plans and specifications and amendments submitted to the City. The construction shall conform to the Minnesota Uniform Building Code '1997 and amendments thereto, the Uniform Fire Code 1997 and amendments thereto, and NFPA 1 3, 6]006 B. Inspection,. USPS will allow the City to periodically inspect the construction. Under the authority of USPS, the City is hereby granted the opportunity to inspect the Facility as it is constructed, and provide comments to USPS and its general contractor concerning the methods of construction, and compliance to applicable codes, which codes are recited above. c. Faithful _Performance of Construction Contracts. USPS and will fully and faithfully comply with all terms and conditions of any and all contracts entered into by USPS for the installation and construction of all Plan A Improvements and hereby g uarantees the workmanship and materials for a period of one year following the City's final acceptance of the Plan A Improvements. Concurrently with the execution hereof by USPS it will furnish its contract with the general contractor and to the City a copy of the general contractors performance bond, which shall be for 100% of the total construction costs, including the Plan A improvements. 4. CONNECTION FEES /ASSESSMENTS /SAC CHARGE A. The City Engineer shall compute the connection fee as prescribed by ordinance /resolution *s to the facility and advise the City Clerk as to the appropriate fee to be collected. Connection fees for all lots and blocks are due and payable upon execution of this agreement and are as follows: B. Assessments_. The City has recently assessed the sum of $42,287.56 to the property for the Kern Center improvements, which USPS agrees to pay in accordance with the resolution adopting and levying said assessments. C. Sewer Availabi[it Char es. USPS agrees to pay the Metropolitan Council sewer availability charge that must be paid in order to connect the building to sanitary sewer services. 5. En • ineerin■ Le ■ al and Administrative Fees. USPS shall reimburse the City for engineering, legal and administrative costs relating to the public improvements involved and to be incurred by the City in connection with the Facility. 01 /06 /00 11 :41 FAX _ FLUEGEL MOYNIHAN 6. PLAN B IMPROVEMENTS. The following improvements will be installed by the City at USPS's expense according to the following terms and conditions: A. DESCRIPTION OF PLAN B IMPROVEMENTS ESTIIV1ATED COST 1/6/00 1. Base preparation /street /sidewalk TOTAL ESTIMATED CONSTRUCTION COST OF PLAN B IMPROVEMENTS ESTIMATED ENGINEERING, LEGAL AND ADMINISTRATIVE 5 W $43,280.00 $43,280.00 $ 8,660.00 Z007 07 TOTAL PLAN B ESCROW $51 ,940.00 prior That rior to the City ordering the installation and awarding the contracts as it relates to the Plan B improvements and the costs therefor, USPS shalt deposit with the Cit y of oak Park Heights, the total estimated cost of the Plan B improvements related thereto for a total of $51 ,94M0. The City shall pay from said deposit all expenses related to the construction of the Plan B improvements providing for the construction of same as - follows: 1. Construction., After the preparation of preliminary plans and estimates b y the City, the City Council shall take bids on the projects and thereafter award the contract pursuant to law for the installation of the Plan B improvements under the City's supervision. 2. Escrow. No work shall be commenced under this Agreement until USPS shall have filed with the City a cash deposit, certified check or Letter of Credit (in a form to be approved by the City Attorney) in the amount equal to the total estimated cost of the Plan 9 improvements in the total amount of $51,940.00. The City shall have the right to apply against the Letter of Credit all bills incurred by the City with regard to the Plan B improvements, however, the City shall provide USPS the opportunity to y a for said improvements as bills are incurred, in cash, rather than to p ay applying payments as against the Letter of Credit provided to the City, P Y if a Letter of Credit is used in lieu of a cash escrow by USPS. In such case, USPS shall have time allowed by the Prompt Payment Act to pay to the City such amount in cash so that the City can use the payment to pay a the amount due in lieu of drawing down on the Letter of Credit or other escrow on file with the City of Oak Park Heights -3. LISPS shall be provided with a copy of the plans and specifications as prepared by the office of the City Engineer for the Plan B improvements and shall be allowed the opportunity to comment on same prior to final 01/06/00 11:41 FAX FLUEGEL MOYN I HAN 116100 release of the bid specifications by the office of the City Engineer for purposes of receiving bid on the improvements. USPS shall also be notified of the bid opening date and provided the opportunity to comment on the bids received prior to the award of the bid on the Plan B im ip rovements. USPS may recommend rejection of all bids and the rebidding of the project or any portion thereof; however, such recommendation is not binding on the City of oak Park Heights and the Cit y may award the contract based upon .the bids received if it, in its y absolute discretion, determines that the bids so received are reasonable: USPS shall also be provided the opportunity to request that the City Engineer consider including certain contractors that USPS might suggest to be added to the proposed bidder's list. Final determination of the proposed bidder's list shall rest in the discretion of the City Engineer. .. Ali such improvements as constructed shall become the property of the City of Oak Park Heights, USPS shall dedicate to the City prior to approval of the final plat at no cost to the City all permanent and temporary easements necessary for the construction of such improvements as determined by the city, 5. Contracts. All such construction contracts as awarded by the City of Oak Park Heights to construct the Plan B improvements shall provide for a guarantee of the workmanship and materials for a period of one year following the completion of construction of the Plan B improvements. All such contracts shall also conform to the ordinances and specifications of the City in the construction of all Plan B improvements. 6 Reduction of Cash De■osit Letter of Credit. , The City shall be allowed to draw upon the cash deposit /Letter of credit /escrow for the payment of any and all construction contracts awarded as it relates to the Plan B improvements, or any portion or increment thereof, upon certification by the Cit y Engineer sneer of completion of construction of the Plan B improvements, or any portion or increment thereof. Upon final completion of the Plan B improvements and certification of same by the Cit y Engineer, ineer, any remaining funds on hand, provided as security to secure the construction of the Plan 13 improvements, shall be refunded to LISPS. 7. change orders. No change order increasing the contract expenSe shall be authorized by the City without USPS's written consent. 8. Estimates. The above estimates are engineering projects only. USPS shall be responsible for all actual expenses incurred in the securing and installing of all Plan B improvements. 7. SYSTEM CHARGE RECOVERY 6 Joo8 01/06/00 11:41 FAX 1/6/00 FLUEGEL, MOYN I HAN Z009 The Cit y may, at some future time in conjunction with adjacent development, recover y g systems charges that could include payment for cost of the road extensions being paid systems charges to cover the USPS. In the event that the City is able to recover sy for by road extension, the City will reimburse USPS for the life of the Plan B street improvements based on a 20 year life. The formula for reimbursement shall be as follows: 1 Y 2 of the current road construction costs shall be multiplied by a fraction, the denominator of which shall be 20, and the numerator of the number of years remaining deno to year 20. Thus, i if the road cost was $200 and the recovery by the city is made in year 5, � j of the cost is $100 times 15 /2Oths which would result in the post office being reimbursed $75. After year ar 20 if the City constructs a road overlay, the presumptive life of that is 10 y Y recovery An after construction of an overlay shall be based on a formula of Y Y y of the cost of the overlay times a fraction, the denominator of which is 10 and the numerator of which is the number of years remaining on the presumptive life of the overlay., The result of that formula shall equal the amount to be reimbursed to USPS. After period years a eriod of 20 ears has elapsed and there is no overlay constructed, no reimbursement will be due; if an overlay is constructed, after year 10, no reimbursement will be due to USPS. S. PAYMENT FOR FUTURE PROJECTED ASSESSMENTS. The p to e City plans upgrade the streets in the Kern Center Second Addition to add any P9 future infrastructure, including roads, curb, gutter, sewer, water, and storm sewer. USPS agrees to pay its pro -rated share of said assessment for the future improvements within the Kern Center Second Addition. 9. GENERAL. 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 Subdivision and shall be deemed covenants running with the land. The Agreement, option at th tion of the City, shall be placed on record so as to give notice hereof to subsequent purchasers and encumbrances of all or any part of the Subdivision and all recording fees, if any, shall be paid by USPS. final Plat Approval. The City agrees to give final approval to the replat of Outlot B. r o this of all required documents A upon execution and delivery of this Agreement and o q and security, subject to compliance with the Ordinances of the City and terms and provisions hereof. C. l ncor ora tion of Reference. The following conditions imposed by order of the city i council is annexed hereto as Exhibit A, and shall be complied with by USPS: A. 7 01/06/00 11:42 FAX 1/6/00 FLUEGEL MOYN I HAN f j 010 8 Exhibit A Memorandum from Cindy Sherman /Scott Richards, dated October 28, 1 999. The date on it is December 10, 11 The City o � f Oak Park Heights may file USPS's Agreement of record in the office of the County Recorder. E. As to any and all administrative, legal or engineering costs which USPS is expected t o pay a to the City, which costs are to be offset against the cash escrows ws or Letters of Credit which USPS has filed and provided to the City. F. Establishment of Construction Schedules. USPS or its generai contractor shall establish construction schedules for Plan A improvements and shah consult with the city engineer prior to implementing same. H. Water Marla ernent Or anizations. USPS shall secure approval from all water management organizations .affected by this development prior to final approval. g g 01/06/00 11:42 FAX FLUEGEL MOYN I HAN 1 1011 I n the presence of: 1 /6/00 IN WITNESS WHEREOF, the e Cit and USPS have caused this Agreement to be duly executed on the date and year first above written. In the presence of: 9 CITY OF OAK PARK HEIGHTS By Thomas Melena, Administrator United States Postal Service By By Its: 0 Its: 01 /06 /00 11:42 FAX FLUEGEL MOYNIHAN STATE OF MINNESOTA ) COUNTY OF WASHINGTON) On this day of 1999, before me David Schaaf and Thomas Melena, to me P ersonally known, being each by me duly sworn did say that they are respectively Mayor the Ma or and the City Administrator of the City of Oak Park Heights, the municipal corporation l oration named in the foregoing instrument; and that the seal affixed to said P p instrument is the corporate seal of said corporation, and that said instrument was signed and sealed on behalf of said municipal corporation by authority of its City Council and said Mayor and Administrator acknowledged said instrument Notary Public, within and for said County to be the free act and deed of said municipal corporation, STATE OF MINNESOTA 3 } § COUNTY OF WASHINGTON) his day of 1 999 before me appeared_ and On t Y and known to me to be the of United States Postal Service ; respectively, and the same signed the foregoing development agreement on behalf of United States Postal Service representing that 9 g P Y power had full authority and ower on behalf of said entitiy to do so and affixed their signitures hereon as their free act and deed on behalf of said entity= THIS INSTRUIVIENT WAS DRAFTED BY: Jack W. Clinton, .D. #17413 Fluegel, Moynihan & Clinton, P.A. 1 303 South Frontage Rd Hastings, MN 55033 651-438-9777 1/6/00 10 Notary Public Notary Public 2012 01/06/00 11 :42 FAX FLUECEL MOYNIHAN I a13 EXHIBIT A TO DEVELOPERS AGREEMENT BETWEEN THE UNITED STATES POSTAL SERVICE AND THE CITY OF OAK PARK HEIGHTS The following site plan alterations must be incorporated in the construction of the annex facility and USPS agrees to arrange for construction in accordance with the following conditions: 1. A wall extension shall be constructed to screen the loading dock area from the east in place of trees and chain link fencing. 2. A parking lot shall be designed with parking stalls at 90 degrees. 3. Two -way traffic access shall be provided to the northern parking area. 4_ The snorkel lane may encroach on the easement area to accommodate the parking lot reconfiguration. E. Chain link fencing shall be a maximum height of 6'8" and no barbed wire or raiser wire shall be used 6. A photometric Tight plan shall be included with the submitted plans. 7. The building facade will be enhanced with an expansion of a brick detail at the front entrance and more glass shall be used at the front entrance; The building facade will receive vertical articulation through additional brick and g g 9 Roof top mechanical equipment will not be metallic and will be a muted tone to match the building. Any exterior mechanical equipment shall be screened as provided in the Design Guidelines from the city. 10. Landscaping will be provided as a buffer along the western and northwestern are of the site 1 /6/00 stone treatment.