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HomeMy WebLinkAbout8D - Wilds Phase ISTAFF AGENDA REPORT AGENDA #: PREPARED BY: SUBJECT: DATE: BACKGROUND: DISCUSSION: FRANK BOYLES, CITY MANAGE CONSIDER AMENDMENTS TO DEVE~)PMENT AGREEMENT FOR PHASE I OF THE WILDS BETWE.,EN' CITY OF PRIOR LAKE AND PRIOR LAKE DEVELOPMENT L.P.-~ AUGUST 1, 1994 On October 22, 1993 the City Council, on behalf of the City of Prior Lake and Dick Burtness, on behalf of Prior Lake Development LP, entered into a development agreement for Phase I of The Wilds. Development of Phase I has generally proceeded in accordance with the original agreement. However, there are a number of areas which the Council may wish to consider amendments to the developers agreement. Changes to the original developers agreement may require amendments to the plat which would likely include the necessity for public hearings in accordance with the ordinance. At the August 1 Council meeting, the developer and City staff would like to receive feedback from the Council with respect to the following possible amendments to the Phase I, The Wilds development agreement. Potential amendments are as follows: Security_ for Sterling South- Allow the one million dollar Letter of Credit and four million, eight hundred thousand dollar Performance Bond originally authorized to secure the improvements in Phase I to also secure the improvements for Sterling South. An estimated five hundred and fifty thousand dollars of improvements will be taking place in Sterling South. It is the City's practice to require that a developer provide a letter of credit to guarantee 125% of the estimated cost of improvements or $687,500. This is a safeguard to assure that if the developer experiences financial problems, that the prerequisite public improvements are completed in accordance with City requirements. The developer of The Wilds secured the improvements for Phase I of the project through a one million dollar Letter of Credit and four million, eight hundred thousand dollar Performance Bond. The distinction between the two securities is that a Letter of Credit is callable by the City at virtually any time without substantial legal intervention. Accordingly, it is a far more expensive security from the developer's perspective but a far more effective one from the City's. A Performance Bond, while 4629 Dakota St. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER AGWILD.WRT being relatively less expensive, is substantially more expensive to collect on from the City's perspective in terms of both time and money. Of these original securities, we estimate that approximately three million of public utilities have been installed. The only function of the securities with respect to these installed utilities is to guarantee them during the one year warranty period. We do not expect warranty work to exceed one hundred thousand dollars. In order to save money, the developer has requested that the City reallocate a portion of the four million, eight hundred thousand dollar Performance Bond and Letter of Credit of $1,000,000 for Phase I to guarantee improvement work associated with the Sterling South project. From a staff perspective, this is a reasonable re-authorization of these securities provided that the development agreement and securities require that the developer be responsible for any and all costs which the City may incur if it is necessary to call upon them. Deadline Date and Cost for Sanitary Sewer Installation - The permanent water and sewer connections were to have been completed by September 1, 1994. Through subsequent negotiations we have agreed with the developer that the permanent water supply and streets (which were to have been done by June 1) will be completed by that deadline. The depth of the sewer, its cost and the associated safety complications have resulted in a delay in completion of these improvements. In the meantime, sewer will be provided by allowing The Wilds to connect to the Dakota Community interceptor. Bill Rudnicki has given a verbal approval to this connection provided there is a written guarantee that there will be no negative impact upon the Dakota Community facilities and sewer capacity as a result of this temporary action. We have agreed to allow The Wilds a one year period for installation of the permanent gravity sanitary sewer. The delay would require that work be initiated not later than June 1, 1995 and completed not later than August 1, 1995. No extensions from these dates are possible. Failure to conform to either deadline would result in the City bidding the work. Taking this action should improve the developer's cash flow and his ability to make arrangements for this project. It will also allow him to arrange for the relocation of an electrical transmission line, which is in the way on the north side of C.R. 82. The developer initially requested that the City pay more for the installation of trunk sanitary sewer line than the amounts set forth in the developers agreement. By providing an extension in time to August 1, 1995, the developer agrees to complete the work in accordance with the developers agreement, including cost. 2 AGWILD.WRT Payment for Watermain - Another minor amendment to the contract provides that the City will waive a $42,000 fee for installation of water on the north side of County Road 82 in exchange for a looping connection down Fremont Road. This connection has been completed and waiver of this fee is appropriate. Relocation of water on the ~side allows the sewer work to take place on the north. In exchange for the fee waiver, the developer installed the watermain loop to Fremont Road. Security for C.R. 83 and Intersection Improvements City Council approval of Sterling North was conditioned on the requirement that the existing $1,000,000 Letter of Credit and $4,800,000 Performance Bond be revised to secure this work. It was our understanding that this condition was to be met. Subsequently, Duininck Brothers who provided the securities elected not to allow this change. Consequently, a new security is needed. We have discussed numerous alternatives with the developer. The developer has asked whether the City would delete this requirement if the Dakota Community concurred. I have discussed this request with Bill Rudnicki. Bill indicates that when C.R. 83 is constructed, they will be looking for the developer's share of the costs. From their perspective, they do not care whether the City pays those costs or the developer, but they will insist upon complete payment. With this in mind, I would not recommend that the City become the guarantor of this payment. In short, securities should be required. The developers agreement requires the developer to pay for improvements to County Road 83 and the intersections when completed based upon a specified formula. In lieu of a Letter of Credit, I have suggested that the developer provide a $500,000 Performance Bond. While this still involves cost to the developer it is substantially more "affordable" than a Letter of Credit. The Performance Bond would provide that the developer pay any and all cost which the City incurs to collect on the Performance Bond should that become necessary. The developer would prefer that the City either waive any form of security, or require the security on subsequent additions of The Wilds. I do not believe that either option is prudent public policy. Streets In The Wilds - As Council is aware, the streets in The Wilds are public except for private streets associated with the townhomes. Accordingly, they are constructed to public road standards. Dick Burtness has asked the City to consider making the roads private in order that a security gate can be installed. He also argues that privatizing the streets will result in a higher level of maintenance, both summer and winter, can be provided for the owners in this area than the City can provide. Larry Anderson and I have discussed the subject, together with Glenn Kessel. If the streets are shifted from public to private, arrangements must be made to allow the City access to the 3 AGWILD.WRT public sewer and water system which lies below them. The homeowners and Association must recognize their responsibilities to maintain and ultimately replace them in perpetuity. The Council should recall that The Wilds Golf Course was included as public and accessible to all. By making the access roads private and installing a security fence has the possible impact of creating a more private, less accessible area. This would eliminate the general public from enjoying the golf course and unique topographic features of the area. Because the golf course was considered public no park dedication fee was levied against it. At this late date there may not be other land available which would satisfy the park dedication requirements. A second problem is connection of Wilds Parkway and White Trail Ridge to other public roads. Since the Wilds is a PUD, the streets may be private under the City Code. We expect that this action would amount to an amendment to the PUD which requires a public hearing. MSA Consulting Engineers - Because the unique build/design nature of The Wilds, MSA Consulting firm has been employed both by the City and by The Wilds to conduct specific work. For example, the temporary water system was designed by MSA because of their unique project knowledge and of water related facilities generally. Dick Burtness has asked that MSA not be designated as Consulting Engineer for future phases of this project. He does not question the capabilities of the firm. Instead, he believes that the firm's decision to place a lien on all properties within The Wilds was "mean spirited" and he does not want to do business with them. There also appears to be a personality conflict. The liens were placed against the property after bills had become seven months delinquent. The developers agreement requires that Prior Lake L.P. pay the City's engineering costs. Because The Wilds is an extraordinarily complex and large design/build project, it is essential that the engineer involved in the project be aware of all aspects of the project and the changes which have taken place since the project began. For this reason, and the fact that MSA is seen as a fully competent firm by all parties, I believe that MSA should remain as a consulting engineering firm. They would have no direct working relationship with The Wilds. Any change in the firm would result in substantial increases in time and dollar expenditures, both by the City and by Mr. Burtness. There is no justification to change based upon performance. -4- AGWILD. hq{T ISSUES: ALTERNATIVES: RECOMMENDATION: ACTION REQUIRED: Each of the amendments has ramifications as discussed above. The City Council should consider each and provide direction accordingly. No further amendments to the developers agreement should be considered before August 1, 1995. Nor should the Council be willing to discuss any financial aspect of the original agreement at any time. The City Council should provide staff with direction on each of these issues. Staff would revise the developer's agreement and return to the City Council with amendments on August 15. Provide City staff direction on each of the above issues. Dependent upon Council discussion. AGWILD.WRT -5- CONDITIONAL USE PERMIT August 1, 1994 THIS CONDITIONAL USE PERMIT (the "Permit") is granted by the City of Prior Lake, a Minnesota municipal corporation ("City") to Eagle Creek Properties, Inc., a Minnesota corporation ("Marina"). RECITALS WHEREAS, Marina is the owner of a public, commercial marina on the premises hereinafter described ("Premises") pursuant to a zoning certificate effective on January 5, 1981 as amended by an Order for Judgment and Judgment dated February 17, 1981 (collectively "Zoning Certificate"); and WHEREAS, Marinas are allowed as conditional uses in a R-2 Urban Residential Zone as defined in the Prior Lake City Code Section 5-3-3; and WHEREAS, Marina has made an application to change its current legal non-conforming zoning status pursuant to the Zoning Certificate to a conditional use status as permitted by Prior Lake City Code Section 5-6-5; and WHEREAS, Marina has met the criteria for approval as required by Prior Lake City Code Section 5-6-5 and has been granted all necessary variances; and WHEREAS, the City Council has approved the Conditional Use Permit as contained herein, after recommendation by the City of Prior Lake Planning Commission, subject to the conditions as contained in this Conditional Use Permit, following a public hearing on the Marina's application, on August __, 1994. NOW, THEREFORE, Marina is hereby granted a Conditional Use Permit to operate a marina in the R-2 Residential District, subject to all of the terms, conditions, and criteria contained in this permit: 1. Definitions. "City" means the City of Prior Lake. "City Council" means the City Council of the City 1.1 1.2 of Prior Lake. 1.3 "Dock" means any wharf, pier, or other structure or combination of wharfs, piers, or other structures constructed or maintained in the lake, whether floating or not, including all "L's", "T's", or posts which may be a part thereof whether affixed or adjacent to the principal structure. 1.4 "Fall" means September 15 to Ice-In. 1.5 "Food and Beveraqes" means convenience-type foods and beverages, which, by way of example, include, but are not limited to pop, candy, "Stewart" sandwiches, and the like. 1.6 "Fuel and Service Dock" means a dock used only for transient uses of the Marina. 1.7 "Lake" means Prior Lake. 1.8 "Lakeshore Association" means any recognized Prior Lake Lakeshore Association with legal access to dockage and lakefront on Prior Lake. 1.9 "Marina" means a commercial establishment adjacent to a navigable lake providing moorings for boats and offering other supplies and services accessory to the principal use. 1.10 "Recreational Vehicle" means any boat or vessel, personal water craft ("PWC") as defined in Minnesota Statutes § 86B.005, subd. 14a (a copy of which is attached hereto as Exhibit "A" and incorporated herein), snowmobile, 4-wheeler - - 2 - all-terrain vehicle ("ATV"), or similar type personal-sized recreational vehicle or watercraft for use on or upon the waters of Prior Lake. No restriction is given to season of the year. 1.11 "Slip" means a structure designed solely to secure a watercraft for the purpose of protecting it from damage from wind, storm, or rain; the term does not include boathouses, decks, roofs or similar structures. 1.12 "Spring" means Ice-Out to Memorial Day. 1.13 "Watercraft" means any boat or vessel for use on or stored on the public waters of the lake. 2. Statement of Purpose. This Conditional Use Permit is being issued pursuant to Section 5-6-5 of the Prior Lake City Code for the sole and exclusive purpose of permitting the continued operation of a public, commercial marina on the Premises. The issuance of this Conditional Use Permit has been based upon findings heretofore made by the City Planning Commission and the City Council that the continued operation of the public, commercial marina on the Lake promotes the public health, safety, and welfare of the citizens of the City. The City Council and Planning Commission further have found that to the extent consistent with the terms and conditions of this Conditional Use Permit, any such public, commercial marina should be a marina capable of providing services usual and customary to the operation of such a business, which may include dispensing of services, repairs, fuels, minor food items, and related lake use items. The City Planning Commission and the City Council further find that the Marina serves as a base of operations for the Scott County Sheriff's Department and assists in rescues as required by -- 3 -- the Sheriff's Department. The City Planning Commission and the City Council further find that it is the policy of the City that the sale of goods and services not necessary or incidental to the operation of a public, commercial marina shall not be permitted on the Premises. 3. Premises. The legal description of the Premises upon which the Marina operation may be conducted is as follows: All that part of Block 7 in Grainwood, Scott County, described as follows: Beginning at the Northwest corner of Lot 11 in said Block; thence Easterly along the Northerly line of said Lot 11 and the extension thereof to the Westerly right-of-way line of County Road No. 21; thence Southeasterly along said right-of- way line to the shore line of Prior Lake; thence Southerly and Westerly along said shore line to its intersection with the Southerly extension of the Westerly line of Lot 18 in said Block; thence Northerly along said Westerly line of Lot 18 as extended and the Westerly line of Lots 15, 14, and 11 to the point of beginning. 4. Repair Services. The Marina is authorized to conduct repairs and maintenance of watercraft, recreational vehicles and related products, incidental to the operation of a commercial marina, on the Premises. 5. Public Boat Launchinq. General, transient, boat launching is not allowed. Boat launching is restricted to service customers, lake shore owners, and members of any Lakeshore Association. 6. Docks and Slips (Usaqe). The Marina shall be authorized 94 slips for general, rental usage plus two additional lift slips and dock supplied by Scott County Sheriff in an area other than permitted slips. This area is strategically located - 4 - to allow for fast access to the lake in an area mutually agreed upon by the Sheriff and the Marina. The fuel and service dock shall be authorized per DNR approved drawings of dock layout. Fuel service will be composed on on-water distribution (whether the water is in a liquid or frozen form) of fuels and oils directly into recreational vehicles and watercraft. All docks and slips will conform to the detailed drawing as submitted and approved by the DNR and the City. Service and tour boat moorings (tie-alongs), are to be located per detailed drawing as submitted and approved by the DNR and the City. Moorings and tie-along's are synonymous. 7. Tour Boat. The Marina is authorized to operate a Coast Guard approved pontoon boat no larger than 45' x 14' from the Marina for the purpose of touring Upper and Lower Prior Lakes. Hours of operation are 8:00 a.m. to 10:00 p.m. The mooring space for this boat is shown on the DNR approved dock layout drawings. All tours will be captained and crewed by Marina personnel and insured by the Marina, a copy of this insurance will be available at the Marina to potential renters, the DNR, and the City. If meals are desired on board, it will be supplied by persons renting tour boat, or catered by firms other than the Marina. (NOTE: Deed restrictions prohibit the Marina premises from being used for public dining, or on-sale beer or liquor facilities). Additional traffic at the Marina will be minimal as parking for the tour boat will be handled off-site as much as possible, with riders picked up at other locations, or shuttle bus delivery and retrieval. Off season storage alongside the retaining wall -- 5 between the service facility and the access road to the Grainwood West Townhouse Association property is authorized. 8. Rental Craft. The Marina is authorized to provide a watercraft rental service in conjunction with the Marina operation to include, but not limited to recreational vehicles, boats, canoes, paddle boats, pontoon boats, sailboats and related windpowered watercraft, tour boat, all intended for summer usage. Winter usage is unknown at this time, but may include snowmobiles, 4-wheelers, snow-sail boats, and similar winter usage personal sized craft. The Marina anticipates no increase in transient traffic at the Marina due to these rentals, which are currently in place and allowed under the current permit. 9. Retail Sales. The Marina may engage in the retail sales of watercraft/personal sized recreational vehicles and related items, new and used; motors, new and used; marine parts, equipment and accessories; fishing bait, tackle and accessories; and other water sports equipment and accessories with no limit to season. The Marina may engage in the retail sales of food and beverages and related services, incidental to the operation of a commercial marina including: coffee, pop, candy, doughnuts, chips, snacks and other similar convenience type items; hot dogs, bratwurst, pizza, Stewart sandwiches, and other similar pre-processed food items. 10. Parkinq - Storaqe. All parking upon or blocking of the designated driveways and access easements located within or about the premises is prohibited. The designated driveways and access - 6 - easements shall be properly posted with "No Parking" and/or other signs which are consistent with State requirements. On premises parking will be confined to the areas specifically designated for public parking. Parking areas will be delineated with striping where applicable and designated with concrete curb blocks where other delineation is not possible. Parking area in front of the buildings will be striped on blacktop/concrete, with designated spot(s) for handicap parking and required signage. All parking areas shall be'delineated as described herein by September 1, 1995. Overflow parking and storage are permitted in the areas designated and as shown on Exhibits B and C, attached hereto and incorporated herein. Related items and unloaded trailers will be stored off-site whenever possible. 11. Pre-Season and Post-Season on Premises StoraGe. During the Spring and Fall, as defined herein, the Marina shall have the right to temporarily store customer watercraft and/or trailers on the Premises when such storage is incidental to the process of (a) transporting such watercraft and/or trailers between the winter storage areas and the lake, and (b) launching or removing such watercraft therefrom. During the aforementioned periods, the Marina may store such watercraft and/or trailers on any designated parking area located on the Premises and may perform service and repairs thereto in place without removing them to areas specifically reserved for on-premises Marina storage. In the event that weather or other conditions require either the continuation of such on-premises storage after Memorial Day in -- 7 -- the Spring, or the commencement of such on-premises storage prior to September 15th in the Fall, specific authority must be obtained by application to the City Manager. On land, storage shall be at grade level only. 12. OverniGht Moorinq or Storaqe on Fuel and Service Dock. The mooring and storage of watercraft on the side of the fuel and service dock facing the channel is prohibited any time after the usual and customary business hours of the Marina. The Marina is authorized to moor overnight on the side of the fuel and service dock opposite the channel, such watercraft being in the custody and control of the Marina for the purpose of maintenance, service, or rental. 13. Special Events. The Marina may have periodic special events, promotions, or City-wide celebrations. These periodic events will not exceed four (4) per year, and not exceed longer than one (1) day per event from sunrise to 10:00 p.m. These events, by way of example, can include: handicapped fishing tournament held in conjunction with the Prior Lake Sportsman's Club, customer appreciation days, or boat shows. 14. Applicable Law. Unless otherwise modified, waived, enumerated or excepted herein, the operation of a public, commercial Marina on the Premises shall comply with all laws, regulations, ordinances, and deed restrictions applicable thereto. 15. Persons Bound. The terms and conditions of this Conditional Use Permit shall run with the Premises and shall be binding upon and inure to the benefit of the present owner of the Premises, its successors and assigns; provided, however, that - 8 - nothing in this Conditional Use Permit shall otherwise prevent the City from enacting or amending official controls to change the status of the conditional uses. 16. Filing. A certified copy of this Permit shall be filed with the County Recorder or Register of Titles of Scott County by the Marina. CITY OF PRIOR LAKE By Frank Boyles, City Manager By Lee Andren, City Mayor EAGLE CREEK PROPERTIES, INC. By. Its S: \SHDATA\ 16772G\GRK\MARINA. CUP - 9 - · Tv I STATE OF MINNESOTA) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this day of July, 1994, by Frank Boyles and Lee Andren, respectively the City Manager and City Mayor, of the City of Prior Lake, a Minnesota municipal corporation, on behalf of said corporation. Notary Public STATE OF MINNESOTA) ) SS. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this day of July, 1994, by the of Eagle Creek Properties, Inc., a Minnesota corporation, on behalf of said corporation. Notary Public THIS INSTRUMENT WAS DRAFTED BY: Lommen, Nelson, Cole & Stageberg, P.A. 1800 IDS Center (GRK) 80 South 8th Street Minneapolis, MN 55402 (612) 339-8131 - 10 - § 86 ,oo5 ~Or ~.- ,,., . :; ~. '. · _'" " '~ ' ' ' · (2) ~g ~ ea~b~ed pl~e of b~ for ~e 'a~e; ~e, ~d ~p~y 0f ~e ~d Su~ 5. Ho~w~,.-"Ho~ep~ me~s ~e'~r ~g ~b~hed for a moor by · e m~~ or,.{ ff. a..~g ~ not ~hed, ~e foremost p~. of. ~e ~ ~ ~e ~ost p~ of ~e' ~ m~ed p~ .~' ~e centre, ~du~g she~. 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Suba S ow.no "Slo.-no means i slowest possible speed 'nec'ess~ ~ mdn~n s~e~ge, b~t in no ~e ~ea~r ~an fi~e ~es per.ho~[- · .. ...... ~ ~ ...... .. 155 [XHIBIT "A"