HomeMy WebLinkAbout2008-08-05 2008 Maintenance & Security Agreement - 58th St. TunnelWITNESSETH; That:
(the "Project"); and,
See Attached Exhibit A
Boutwell's Landing
Main Campus
58 Street Tunnel
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CITY OF OAK PARK HEIGHTS
WASHINGTON COUNTY, MINNESOTA
2008 MAINTENANCE AND SECURITY AGREEMENT
58 STREET TUNNEL
41 "i 6 c . /0
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THIS AGREEMENT, made and entered into this t.) day of August, 2008, by and
between the City of Oak Park Heights, a municipal corporation under the laws of the State of
Minnesota(the "City" ), and Valley Senior Services Alliance, a Minnesota Non-profit corporation,
VSSA Care Center LLC and VSSA Boutwells Landing, LLC, both Minnesota limited liability
Companies, the "Developers").
WHEREAS, the Developers have made application to the City Council for approval of an
amendment to the Planned Unit Development, Site Plan approval all related to the original December
30, 1998 Developer's Agreement and its subsequent amendments affecting land within the corporate
limits of the City described as follows:
111
„
WHEREAS, the City Council has on ri 1 Y LI , 2008, granted approval to the Project, on
the condition that the Developers enter into this Agreement stipulating the conditions for the
installation of the tunnel under 5g11 and its ongoing maintenance as well as the development of
on-site improvements hereinafter described, all in accordance with the terms and conditions hereinafter
set forth; and
WHEREAS, The property is zoned PUD District with an underlying zoning of R-B,
Residential Business.
NOW, THEREFORE, in consideration of the premises and of the mutual promises and
conditions hereinafter contained, it is hereby agreed as follows:
Designation of Improvements: improvements to be installed at Developer's expense by the
Developers as hereinafter provided are hereinafter referred to as "PLAN A IMPROVEMENTS", to be
installed by and paid for by Developers.
l.. PLAN A I is O N. N S: The Developers will const ruct at Developer's expense
the following improvements ments ac or ding to the Mowing trims and conditions:
A. The Developers shall prepare are and submit for review and approval plans and
specifications for the project to the City Engineer. Developer shall on
construction timetables approved by the City do all site grading, and
preparation, traffic management and control, construction management of the
project utility relocation, and other tasks specified by the City Engineer
according to approved plans. A grading plan with maximum two (2) foot
contours, pad elevations, drainage provisions, erosion control provisions and
cross sections, as necessary, shall be submitted to and approved by the City
prior to commencement of any site grading. Any changes to the grading or
elevations during construction shall be submitted to the City for approval. The
tunnel site must conform to the approved plan approved by the City Engineer
of the City of Oak Park Heights prior to any permit being issued.
13. The Developers shall control soil erosion ensuring:
1. All development shall conform to the natural limitations presented by
the topography and soil of the project in order to create the best
potential for preventing soil erosion. The Developers shall submit an
erosion control Ilan, 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.
2. Erosion and siltation control measures shall be coordinated with the
different stages of development. Appropriate control measures as
required by the City Engineer shall be installed prior to development
and as may be necessary to control erosion.
3. The Developers shall not locate its equipment within the right-of-way
of 58th Street North or Norwich Avenue North as acquired by
the City of Oak Park ,eights adjacent to this development without the
express written consent of the City Engineer.
4. 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.
5, 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 inches and shall be of a quality at least equal
to the soil duality prior to development.
;. The Developers shall be responsible for maintaining the location of and
protecting all utilities, curb stops, water services and sewer services. Any
service or curb stop damaged shall be repaired or replaced as specified by the
City. The Developers shall make all necessary adjustments to the curb stops to
bring them flush with the topsoil (after grading) or driveway surface.
D. The Developers shall be required to provide landscaping and screening as
determined by the City and as required by the ordinances of the City. Final
landscaping plans must be submitted to the office of the City Planner for
approval .
E. The Developers shall be responsible for traffic control and street maintenance,
including barriers, curbs, boulevards, sod and street sweeping until the project
is complete. All streets shall be maintained free of debris and soil until the
project 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. The repair of any damage done to the streets or public utilities by
Developers or any of its Contractors or Subcontractors, shall remain the
financial responsibility of the Developers.
F. The Developers shall furnish construction lighting in accordance with the City
Ordinance requirements pursuant to a plan which must receive the approval of
the City Engineer.
0, Traffic control on and off site. Developers, its agent's, contractors and
employees shall follow all directives of the City Engineer relative to traffic
management ment arnd access to the construction site. Developers shall install .
construction since, maintain traffic control personnel and devices to
minimize e disruption to the public use of 58 Street North. Detours approved
by the City Engineer shall be implemented on site and maintained by Developer-
during the course of construction all as directed by the City Engineer. The
traffic control plan is subject to review and approval of the City Engineer
Prior to receiving permission to close 58 Street North the
Developer shall have on adjacent site the pre-constructed, pre-cast
concrete forms that are assembled within for tunnel opening to create the
walls and ceiling of the tunnel shaft.
H. Developers shall be responsible for storm sewer cleaning and holding pond
dredging related to construction activities as required by the City prior to
completion of the project,
1. The Developers shall be responsible for securing all necessary approvals,
PUDs, Cs and permits from al_l appropriate federal, state, regional and local
jurisdictions prior to the commencement of site grading or construction.
Developer shall perform ail periodic inspections required by State and City
permitting authorities maintaining the tunnel in a waterproof and safe
condition.
J. Wetland Protection. All areas classified as wetlands shall be protected during
construction, Developers shall strictly adhere to and follow directives of the
City Engineer relative to construction activities and practices to be
implemented on site
K. Tree Protection and Relocation. The Developers shall follow the directives of
the City Arborist or a person under her designation providing on -site
supervision and direction during the clearing and tree relocation process.
L. Warranty of Title. By its execution hereof Developers hereby warrants and
represents that it has the exclusive and marketable fee title to the subject
property. Developers further warrant and represent that there are no liens or
encumbrances against the title or if there are liens and encumbrances that those
lienholders will subordinate their interests to this Developer's Agreement.
Developer's representative executing this Developer's Agreement also
represents that he /she is fully authorized to execute this agreement as the fee
owner of the subject lands.
Fire Hydrants. All fire hydrants throughout the development shall
incorporate an AFC —Waterous Storz Nozzle. The hydrant pumper nozzle
shall be of one-piece design, compatible with a five inch Storz hose
coupling. The nozzle shall be an integral part of the fire hydrants and must
he furnished by the manufacturer or authorized distributor designated by the
manufacturer. Storz adapters will not be accepted.
P. Utility Locations in City Right of Way. In order to maintain compliance with
regulations promulgated from the Minnesota Office of Pipeline Safety the
Developers, its contractors, subcontractors, and agents shall comply with the
following recluuiremtints:
1. All right of way work shall require an application with a plan that
shall be submitted for city review prior to any work performed in
the right of way areas.
2. The layout of utilities, including depths, of sets and materials shall
be documented during construction and confirmed with city staff
during the installation process.
3. Single family residential lots are required to submit an accurate tie
card showing the utilities installed and measurements from fixed
objects (corner of house, fire hydrants, etc.) to the curs stop,
location pins, clean outs and tie in points for all utilities,
4. Multi- family and commercial lots must provide, in addition to the
above, professional as built drawings confirmed by 'old survey,
showing the required information. in addition Engineering grade
BPS coordinates in the Washington County coordinate system
shall be supplied by the builder. These will allow the coordinates to
be electronically incorporated in to future city mapping.
5, All installations will require pins be installed directly above all utility
lines where they cross lot lines. A corrosion protected trace wire
shall be installed six inches below final grade directly above all new
utility installations at a minimum through the right of var. The
trace wire and tail shall be terminated in a capped vertical conduit
that is within two inches of the final grade and pin located at the lot
line.
6. The Developers shall hold harmless and indemnify the City of Oak
Park Heights from any and all loss or damage resulting from its
failure to comply with these requirements including but not limited
to expenses the City incurs in correcting errors in information
provided by Developers its agents or contractors or rercdiating
problems resulting therefrom in the right of var.
7. Upon failure to provide full documentation as required the City
shall notify the Developers who shall have 30 days to secure full
compliance. Failure of the Developers to comply will result in the
work Being assigned by the City to an outside professional for
completion of the necessary work. Any costs incurred in resolving
these requirements shall be assessed to the property or offset from
security required under this agreement.
8. City staff shall document the time and materials required to review,
confirm and accept the installation documentation and shall invoice
Developers lopers for the costs used on the actual work involved or on a
fee schedule adopted by the City Council.
f ai1:l fill Performance ce of Construction Contracts. The Developer er will
fully and faithfiully comply with all terms and conditions of any and all
contracts entered into by the Developer for the installation and
construction of all Plan A Improvements and hereby guarantees the
workmanship and materials for a period oftwo years fol owin the
City's final acceptance of the Plan A Improvements and as to settling of
soils in the project area will be responsible to remedy any settling for a
5 year period
2. DE SC .R. I. PT] _ ON OE PLAN A .Y PROVEM .E T ' 1. ATE ATED COS
1. Landscaping
2. Removals and Grading (public)
3. Removals and Grading (private)
4. Erosion Control (public)
5. Erosion Control (private)
6. Streets and pathways (public)
7. Parking lots and pathways (private)
8. Tunnel
9. Storm Sewer(private
1. . Storm sewer (public)
11. Water Main(public)
12. Pond Protection and Restoration
13. Utility Protection and repair
14. Street Protection and Repair
1.5. City inspection
TOTAL ESTIMATED COST
OF PLAN A IMPROVEMENTS:
SECURITY REQUIREMENT (25%)
TOTAL PLAN A ESCROW
3. CONSTRUCTION OF PLAN A IMPROVEMENTS.
A.
13.
TOTAL ESTIMATED CONSTRUCTION COST
OF .l PLAN A IMPROVEMENTS:
ESTIMATED ENGINEERING, LEGAL AND
ADMINISTRATIVE 25% :
58400.00
$20,030.00
$48,1 00.00
` 1 720.00
$5250.00
514,000.00
5156,100.00
5297,250.00
59,000.00
$11,100.00
510,100.00
52,400.00
53,500.00
5,.00
532,000.00
5624,000.00
5156,000.00
5780,000.00
$195,000.00
5975,000.00
Construction. The construction, installation, materials and equipment shall be
in accordance with the plans and specifications approved by the City at the Site
specified in Exhibit 13.
Inspection. All of the work shall be under and subject to the inspection and
approval of the City and, where appropriate, any other governmental agency
having jurisdiction.
C. Faithfid. Performance of Construction Contracts. The lol rs will fully and
faithfully comply ly with all terms and conditions of any and all contracts entered
into by the Developers for the installation and construction of all Improvements
and hereby guarantees the workmanship and materials. Concurrently with the
execution of this Agreement, Developers elopers or its general contractor shall provide
security to the City of Oak Park Heights in a form to be approed by the City
Attorney, guaranteeing the timely performance by Developers of the
construction of the Improvements ements in a timely and proper manner. Additionally,
Developers guarantees and agrees that, should the City of Oak :Park. Heights
need to apply on such security, that Developers shall pay all reasonable
attorney's fees and administrative expenses associated with said action.
D. Security. No work shall be commenced under this Agreement until the
Developers 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 improvements plus security
requirement of 25% in the total amount of $975,000.00. The City shall have
the right to apply against the Letter of Credit all bills incurred by the City with
regard to the improvements in the event of Default as provided herein.
E. Easements. The Developers shall dedicate to the City, upon approval of the
final Plat, at no cost to the City, all permanent or temporary easements
necessary for the maintenance of City Water and Sewer utilities impacted by
the Plan A Improvements. All such easements shall be as determined by the
City. Alt such easements required by the City shall be in writing, and in
recordable form, containing such terms and conditions as the City shall
determine.
4. INSURANCE REQUIREMENTS
TS
Developer further agrees that in order to protect itself as well as the City under the
indemnity provision set forth above, it will at all times during the term of this Contract
keep in force the following minimal insurance protection in the limits specified:
A. A single limit or combined limit or excess umbrella general liability insurance
policy of an amount of not less than $500,000 for property damage arising from
one occurrence, $5,000,000 for total bodily or personal injuries or death and/or
damages arising from one occurrence. Such policy shall also include contractual
liability coverage by specific endorsement or certificate acknowledging the
contract between the Consultant and the County.
13. A single limit or combined limit or excess umbrella automobile liability insurance
policy, if applicable, covering owned, non- owned and hired vehicles used regularly
in the provision of services under this Agreement, in an amount of not less than
$300,000 per accident for property damage, $1,000,000 for bodily injuries and/or
damages to any one person, and $1,000,000 for total bodily injuries and/or
damages arising from any one accident.
C. A professional liability insurance policy covering consulting personnel of the
Developer while performing services under this Agreement in the following
amounts: Errors and omissions $300,000 per occurrence and $1,000,000 in total
for any individual occurrence.
D. Workers Compensation Insurance and employers liability as required by law
including all states endorsement in an amount of $100,000 for each. occurrence.
Prior to the effective date of this Agreement, the Developer will furnish the City with
certificates of insurance as proof of insurance for general Liability and Auto Liability.
Any policy obtained and maintained under this clause shall provide that it shall not be
cancelled, materially changed, or not renewed without thirty days notice thereof to the
City.
5. ANNUAL TUNNEL L MAINTENANCE. Annual and periodic maintenance
obligations for Developer on the Tunnel shall be as specified by the City Engineer and may
be modified or changed periodically.
6. Council Imposed Conditions: The City Council has imposed the following
conditions:
Engineer
a. A tunnel easement, to allow placement of a private access under
the City right-of-way, shall be executed with the applicant subject
to review and approval of the City Engineer and City Attorney.
h. The applicant shall provide a security plan for the tunnel subject to
review by City staff
es The tunnel segments shall be on site prior to closing 58 Street and
digging the construction trench.
d. The traffic control plan is subject to review and approval of the City
7 . PAYN1-1 T FOR 1 1_ 11 .1 T ACQUISITION. 'Me Developers shall
provide a cash payment to the City of Oak Park Heights in the amount of
S10,000.00 in consideration of this .non-exclusive Tunnel easement
8. GEN r RAL:
A. Binding .g 1effect. 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 .Project and shall be deemed covenants running
with the land. References herein to Developers, if there be more than
one, shall mean each and all of then. The Agreement, at the option 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
Project and all recording fees, if any, shall be paid by the Developers.
1, Final Permits and Approvals. The City has given final approval to the
Project upon execution and delivery of this Development Agreement,
and of all required documents and security, subject to compliance with
the Ordinances of the City and terns and provisions hereof, permits
may be issued by the City.
C. incorporation of 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. Specifically
the following Planning g Reports and Engineering files and final
documentation approved by the City Planner and the City Engineer are
specifically incorporated by reference herein and included herein as if
originally made part of this agreement.
a) July 10, 2008 Letter from Karen S. Erickson P.E. Bonestroo to
the City of Oak Park Heights. Requirements recommended therein
are hereby imposed as a condition of this Agreement.
b). April 30, 2008 Planners Report to the City of Oak Park Heights
from Northwest Associates Consulting.
c). PRIVATE P E ESTRI N UNDERGROUND TUNNEL AND
WALKWAY HA M NT AND AGREEMENT
dated August_
2
D. Administrative nd Miscellaneous Expenses. As to any and all
administrative, legal or engineering costs which the Developers is
expected to pay ' to the City of Oak Park Heights, which costs may be
ofThet against the security which the Developers has filed and provided
to the City of oak Park Heights, the Developers shall be given the
opportunity to review and comment on such costs prior to the
application by the City of Oak Park Heights to the bonding company
for the pa r of same. Should the Developers rs disput the
reasonableness of any of the City's charges, Developers lopers shall have the
right to submit any such dispute to arbitration at Developer's sole and
exclusive expense. Arbitration shall be conducted by the American
Arbitration Association and shall be initiated and paid for by
Developers.
E. Establishment of Construction Schedules. The City Engineer shall
have the right to approve and establish all construction schedules for all
Plan A improvements and shall consult with Developers prior to
establishing same. The construction contracts issued by Developers
shall impose penalties and/or incentives to complete the project in a
timely manner as establish) by the City Engineer. All penalties for
failure to meet completion dates shall be paid to the City as liquidated
damages under this agreement.
F. Indemnification. To the fullest extent permitted by law, the
Developers shall indemnify and hold harmless the City of Oak Park
Heights, its agents and employees from and against any and all
claims, damages, losses or expenses, including but not limited to
reasonable attorney's fees, arisi. ng out of the issuance of this
Developer's Agreement by the City of Oak Park Heights and/or
arising out of the performance or no -per orrance of its
obligations hereunder by Developers. The foregoing provision shall
not include any loss resulting from the indemnified parties own
gross negligence or willful . misconduct.
IN WITNESS WHEREOF, the City and Developers have caused this Agreement to be duly
executed on the date and year first above written.
In the presence on CITY OF OAK PARK HEIGHTS
In the presence of.
In the presence of
David Beaud
Mayor
Eric John
City As istrator
VALLEY SENIOR SERVICES ALLIANCE, A
MINNESOTA NON-PROFIT CORPORATION
By: Mark Meyer
Its: Chief Financial Officer
VSSA BOUTWELLS LANDING, LLC, A
MINNESOTA LIMITED LIABILITY COMPANY
By: Mark Meyer
Its: Chief Financial Manager
In the presence of VSSA CARE CENTER, LLC, A
MINNESOTA LIMITED LIABILITY COMPANY
STATE OF MINNESOTA )
COUNTY OF WASHINGTON)
On this g of t 44 , 2008 before me a Notary Public, within and for said
County personally appeared David P. audet and Eric Johnson, to me personally known, being each by
S.
me duly sworn did say that they are respectively the Mayor and the Administrator of the City of Oak
Park Heights, the municipal corporation named in the foregoing instrument; and that the seal affixed to
said 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 instillment to be the free act and deed of said municipal corporation.
JENNIFER M. THOEN
NOTARY PUBLIC - MINNESOTA
My Commisslon Expires Jan. 31, 2012
By: Mark Meyer
Its: Chief Financial Manager
STATE OF MINNESOTA
ss.
C OUNTY OF WASHINGTON)
On this 0 day of _AW ' r , 2008, before me a Notary Public, within and for said
County personally appeared Mark Meyer, to me personally known, being the Chief Financial o fficer of
Valley Senior Services Alliance, a Minnesota Non-Profit Corporation, named in the foregoing
instrument; and that the seal affixed to said instrument is the corporate seal of said corporation, and
that said instrument was signed and sealed on behalf of said corporation by Mark Meyer with the
authority of its Board of Directors acknowledging his execution of said instrument to be the free act
and deed of said Lilted Liability Company.
JENNIFER M.
NOTARY � w MINNESOTA
T
yC0mmission Expires ,fan, 31, 2012
N i)y Publi ' .. �....
STATE OF MINNESOTA
s l .
COUNTY OF WASHINGTON)
On this day of " .` ..... -= . , 2008, before me a Notary' Public, within and for said
County ersoi al appeared Mark Meyer, to me personally known, being the Chief Financial Manager
f yfp �
of V S. Boutwells Landing, LLC, a Minnesota Limited Liability Company, named in the foregoing
instrument; and that the seal affixed to said instrument is the corporate seal of said limited liability
company, and that said instrument was signed and sealed on behalf of said Limited
Liability Company by Mark Meyer with the authority of its Board of Governors acknowledging his
execution of said instrument to be the free act and deed of said Limited Liability Company.
tiLli ' 'del.
c i
JENNIFER M. THOEN
i ; NOTArtif PUBLIC - MINNESOTA
fiy C0111MiSSiOfi Expires Jan. 31, 2012
SS,
JENNIFER PA, THOEN
}
NOTARY PURIC MINNESOTA
J � # oil Expires Jan. 31, 2012
7
Notary Public
STATE OF MINNESOTA
COUNTY OF WASHINGTON)
f *y. ; before e a Notary Public within and for said
Cry. this �� of � ���. .�� , 2008, y ,
County personally appeared Mark M ' er, to me !personally l no n, being the Chief Financial Manager
of VSSA Care Center, LLC, a Minnesota Limited Liability Company, named in the foregoing
instrument; and that the seal affixed to said instrument is the corporate seal of said limited liability
company, and that said instillment was signed and sealed on behalf of said Limited
Liability Company by Mark Meyer with the authority of its Board of Governors acknowledging his
execution of said instrument to be the free act and deed of said Limited Liability Company.
tv .
y Public
THIS INSTRUM ENT WAS DRAFTED BY:
Mark J. Vierling
Eckberg, Lammers, Bri gs, Wolf
Vier ling, .L. L.P.
1809 Northwestern . Avenue
Stillwater, MN 55082
( 612) 439-2878
8
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