3719 Denmark Ct - Cost Share Operation & Maint Agenda Information Memo
October 3, 2017 Eagan City Council Meeting
CONSENT AGENDA
N. Cost-Share, Operation and Maintenance Agreement
3719 Denmark Court West
Action To Be Considered:
Approve a Cost Share, Operation and Maintenance Agreement with Robert and Gloria
Levine (3719 Denmark Court West) for a Shoreland and Upland Buffer Project at City
Pond JP-15 (adjacent to Fish Lake) through the Water Quality Cost-Share Partnership
Program and authorize the Mayor and City Clerk to execute all related documents.
Facts:
> On December 4, 2012, the City Council approved a Water Quality Cost-Share
Partnership Program (Program), the purposes of which are to: 1) improve water
quality in downstream public waterbodies; 2) reduce stormwater runoff into the
storm sewer system and public waterbodies; 3) preserve, protect and enhance
native plant communities around public waterbodies; and 4)educate and engage
the public on the value of improving public water resources, and to develop
empowerment and partnership opportunities.
> The Program is funded from the stormwater utility fund and is being
administered by Water Resources staff according to City Council priorities as
designated in approved capital improvement programs, lake management plans,
and development agreements. The Program is provided up to $50,000 annually
in the 2017-2021 Public Works Department's Capital Improvement Program.
> The owners will engage a specialized contractor to prepare, plant, and establish
a shoreland buffer at City Pond JP-15 (adjacent to Fish Lake), on approximately
700 square feet of the parcel, and along approximately 70 total linear feet of
shoreline, to protect shoreland and upland soils from erosion, reduce
stormwater runoff and nutrient impacts to JP-15 and Fish Lake, and enhance
native plant communities. The property owners will be responsible for long-term
maintenance of the project for a minimum of 10 years.
➢ This project will be a lake-viewable demonstration of effective shoreland
buffer/restoration practices that may influence other shoreland residents to
follow suit.
➢ The project should be substantially completed by the end of 2017 at a total
estimated cost of approximately $3,700. An estimated cost-share of $2,775
(75% of project costs) from the City will be matched by approximately $925 of
funding(25%of project costs)from the Owners.
Attachments(1)
CN-1 Cost-Share, Operation and Maintenance Agreement
CITY OF EAGAN WATER QUALITY COST SHARE PARTNERSHIP PROGRAM
COST SHARE,OPERATION AND MAINTENANCE AGREEMENT
This Cost Share, Operation and Maintenance Agreement ("Agreement") is made this
day of , 2017, by and between Robert G. Levine and
Gloria Q.Levine,husband and wife(the"Owners"),and the City of Eagan,a Minnesota municipal
corporation(the"City"),(collectively the"Parties").
WHEREAS, the Owners are the fee title holder of real property located at 3801 North
Ridge Drive,Eagan,Minnesota,and legally described as follows:
Lot 4, Block 3, PILOT KNOB HEIGHTS FOURTH ADDITION, Dakota County,
Minnesota
(the"Property");
WHEREAS, the Owners desire to perform a water quality improvement project (the
"Project")to install Shorel;and and Upland Buffer Protection(the "Improvements"), as depicted
on and in accordance with the proposal attached hereto as Exhibits A&B and incorporated herein
(the Exhibits will be referred to as the"Plans and Specifications");
WHEREAS, the Owners have submitted an application for assistance with the Project
under the City's Water Quality Cost Share Partnership Program(the"Program");
WHEREAS, the City finds that the Project will serve a public purpose by supporting one
or more of the following public water resource priorities:
a. improving water quality in downstream public waters;
b. reducing stormwater runoff into the public storm-sewer system and public waters;
c. preserving,protecting and enhancing native plant communities around public waters; and
d. educating and engaging the public on the value of improving public water resources, and
empowerment and partnership opportunities;
WHEREAS, the City finds that the Owners and the proposed Project meet the eligibility
requirements for participation in the Program; and
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WHEREAS, the City agrees to provide the Owners with certain financial and technical
assistance for the Project through the Program, subject to the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
obligations of the Parties hereinafter set forth,the Parties agree as follows:
1. Plans and Specifications.
a. Owners' Responsibility. The Owners shall be responsible for development of the
plans/design, specifications and itemized cost estimate for the Improvements (the
"Plans and Specifications").
b. City Review. The Owners shall submit the Plans and Specifications to the City for
review and written approval by the City Engineer or his designee prior to
installation of the Improvements.Notwithstanding the foregoing,the Owners shall
be solely responsible to determine the adequacy of the Plans and Specifications and
to comply with all applicable laws and regulations, and the City shall have no
liability for the Plans and Specifications or the Improvements.
c. Modification of Plans and Specifications. Any modification to the approved Plans
and Specifications must be approved in writing by the City Engineer or his
designee.
2. Installation.
a. Standards. The Improvements shall be installed in accordance with the approved
Plans and Specifications.
b. Labor and Materials. The Owners shall select, obtain and pay for all labor and
materials for the Project, consistent with the Plans and Specifications, subject to
partial reimbursement as provided in this Agreement.
c. Photographs. The Owners shall take photographs to document the Project.
d. Time for Completion.The Project must be completed within one year from the date
of execution of this Agreement,unless an extension has been requested and granted
by amendment of this Agreement.
e. Report. Within 30 days after completion of the Project,the Owners shall submit to
the City Engineer or his designee a project completion summary in a form
acceptable to the City Engineer(including supporting photographs).
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3. Reimbursement.
a. Reimbursement Request. After the Improvements are completed and approved by
the City Engineer or his designee,the Owners shall submit to.the City Engineer or
his designee a written request for reimbursement including(i)a detailed itemization
of costs, (ii)original receipts or paid invoices and (iii) itemization and
documentation of the Owners' Match as defined below (collectively the
"Reimbursement Request").
b. Reimbursement Amount. The City shall reimburse the Owners pursuant to the .
Reimbursement Request for up to $2,775.00 for eligible Project costs, and not to
exceed seventy-five percent(75 %) of total Project costs.
c. Reimbursement Schedule.The City shall issue reimbursement to the Owners within
thirty(30)days of receipt of a completed Reimbursement Request.
d. Eligible Costs. All Project costs will be reviewed and verified by the City Engineer
or his designee as eligible,practical and reasonable. The City reserves the right to
make adjustments to the Project costs submitted for reimbursement based on this
review. Subject to the foregoing, the following Project costs are eligible for
reimbursement:
i. Materials for the Improvements.
ii. Contracted labor costs for site preparation, installation and establishment
period(2 years maximum period post-installation)of the Improvements.
iii. Contracted design/engineering fees,and soil-analysis,but only if approved
in writing by the City Engineer or his designee before contracted design/
engineering/soil-analysis work begins.
e. Ineligible Expenses.
i. Notwithstanding any provision of this Agreement to the contrary, purely
aesthetic components of the Improvements are not eligible for
reimbursement and shall not be considered part of the Project costs.
ii. Funding will only cover work performed after this Agreement has been
signed, with the exception of pre-project planning / design / engineering
costs that may be allowed to be included, determined on a case-by-case
basis, if pre-approved in writing by the City Engineer or his designee.
f. Owners' Match.
i. The Owners shall be responsible for a minimum of twenty-five percent
(25%)of Project costs,which can include in-kind labor value.
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4. Maintenance.
a. Maintenance Obligation.For a period of ten(10)years commencing on the date the
Improvements are completed and approved by the City Engineer or his designee,
the Owners shall maintain and repair, when necessary, the Improvements in
accordance with the Plans and Specifications.
b. Maintenance Costs.The Owners shall be solely responsible for all costs associated
with long-term maintenance and repairs of the Improvements.
5. Inspections and Reports.
a. Annual Inspections. The Improvements shall be inspected annually, between
May 15 and October 15,by a Qualified Person selected by the Owners to determine
whether or not the Improvements are functioning in accordance with the Plans,
Specifications and this Agreement. As used in this Agreement,the term"Qualified
Person" shall mean a person approved by the City Engineer based on wetland and
upland buffer best management practice training and experience. City Water
Resources staff are considered Qualified Persons, with no fee to Owners. If
choosing to use an independent Qualified Person, the Owners' responsibilities
under this Section shall be at the Owners' sole cost and expense. If, as a result of
the inspection, the Improvements are determined not to be functioning in
accordance with the Plans and Specifications and this Agreement,the Owners shall
restore/repair the Improvements to function as specified herein.
b. City Notification and Independent Inspection. The City shall be notified at least
24 hours prior to independent annual inspections or any significant maintenance of
the Improvements and,at the sole cost of the City,a representative of the City may
observe any inspection or maintenance. The City shall have right of entry onto the
Property to inspect the Improvements at any time to evaluate the installation and
maintenance of the Improvements.
c. Inspection and Maintenance Report. If using an independent Qualified Person,the
Owners shall submit a report to the City Engineer or his designee by e-mail or mail,
no later than thirty(30)days after any annual inspection and/or maintenance of the
Improvements,providing the following information:
i. Date and time of inspection.
ii. Log of findings.
iii. Date and time of maintenance.
iv. Details of maintenance performed.
v. Photographic documentation.
6. Standards for Performance. Any act of construction,installation,maintenance,or repair
to be performed under this Agreement shall be performed in a good and workmanlike
manner pursuant to sound engineering practices and in compliance with all applicable
governmental requirements.
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•
7. Richt of Entry. The City,its agents and employees shall have the right to enter the Property
to inspect and to implement the terms of this Agreement.The City,its agents and employees
shall not be subject to or liable for any claims of trespass in connection with such entry.
8. Indemnification. The Owners shall indemnify and hold the City and its City Council
members, officers, employees, agents, representatives, attorneys, successors and assigns,
harmless from any and all claims arising out of or related to (i) the installation, use,
maintenance,repair,removal,damage or destruction of the Improvements,(ii)injury to the
Owners or any third party caused by or related to the Improvements, and (iii) damage to
real property or personal property of the Owners or any third party caused by or related to
the Improvements.
9. Amendment.Release or Termination. Notwithstanding anything herein to the contrary,
no amendment,release or termination of any of the provisions of this Agreement shall be
effective or may be filed of record unless the City consents to the amendment, release or
termination. Such consent must be evidenced by a resolution duly approved by the City
Council,or successor body. The Owners,on behalf of themselves and their successors and
assigns, expressly acknowledge and agree that the City has no obligation whatsoever to
approve or act upon any proposed amendment, release or termination, may withhold or
delay consent for any reason or no reason whatsoever, and may condition consent upon
such terms as the City deems desirable. The Owners, on behalf of themselves and their
successors and assigns, further agree and covenant, consistent with this acknowledgment,
not to institute any legal proceedings against the City on the grounds that the City failed to
respond appropriately to a proposed amendment, release or termination and to indemnify
the City against any expense,including litigation costs,which the City incurs as a result of
any violation by that party of this covenant. The City may, at any time, give up the right
to approval granted hereunder, said action to be evidenced by City Council resolution or
other format approved by the City Attorney.
10.Remedies for Default.
a. Termination. If the Owners fail to perform the Owners' obligations as and when
required under this Agreement(a"Default"), and fails to cure such Default within
thirty (30) days after the City gives written notice to the Owner specifying the
Default, subject to such extension as may be reasonably necessary due to weather
conditions, then the City may terminate this Agreement by written notice to the
Owners.
b. Repayment.Upon termination of this Agreement,the City Engineer or his designee
shall determine the amount,if any, by which the reimbursement to the Owners for
Project costs under this Agreement exceeded the public benefit received by the City
from the Project(the "Overage"). The Owners shall repay the Overage to the City
within thirty (30) days after receipt of an invoice from the City describing the
calculation and the amount of the Overage. If the Owners fail to timely repay such
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funds, the Owners shall be responsible for the City's attorneys' fees and costs
enforcing this Agreement,including costs of collection.
c. Force Majeure.Notwithstanding the foregoing, the Owners shall not be liable for
repayment of funds received under this Agreement if the failure was caused by
reasons proven to be beyond the Owners' control.
11.Duration. This Agreement shall be for a term of ten (10) years and shall constitute a
covenant running with the land and shall be binding upon and inure to the benefit of the
Parties,and any and all of their successors and assigns.
12. Recording Agreement. The City will record this Agreement against the Property with the
Dakota County Recorder's Office within thirty (30) days of full execution of this
Agreement,and shall provide the Owners with verification of this recording.
13. Governing Law; Venue. The laws of the State of Minnesota shall govern the
interpretation, validity, performance, and enforcement of this Agreement. Any dispute
regarding this Agreement shall be venued in the State of Minnesota District Court in
Dakota County.
Owners' (or Representative's) Contact Information for Long-Term Inspection/Maintenance:
Owners: Robert G. Levine
3719 Denmark Court W
Eagan,MN 55123
Gloria Q.Levine
3719 Denmark Court W
Eagan,MN 55123
Telephone:
Email:
IN WITNESS WHEREOF,the undersigned have executed this Agreement effective as of the
date first listed above.
[Signature pages follow]
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CITY OF EAGAN WATER QUALITY COST SHARE PARTNERSHIP PROGRAM
COST SHARE,OPERATION AND MAINTENANCE AGREEMENT
Signature Page of Owners
OWNERS:
Robert G. Levine
,e7h.
Gloria Q. Levine
STATE OF MINNESOTA )
)ss.
COUNTY OF DAKOTA )
The foregoing was acknowledged before me this?day of $rr, 2017,by Robert G.
Levine and Gloria Q.Levine,husband and wife.
.01111
GREGG ALAN THOMPSON IFF
' � k NOTARY PUBLIC-MINNESOTA
G';'<WP My Conmissaon Expires Jan.31,2021
7
CITY OF EAGAN WATER QUALITY COST SHARE PARTNERSHIP PROGRAM
COST SHARE,OPERATION AND MAINTENANCE AGREEMENT
Signature Page of City
CITY:
CITY OF EAGAN,
a Minnesota municipal corporation
tlit
By:
Mike Ma •
Its: Mayor
By:21 14 . _ . .
Christina M. Scipioni
Its: City Clerk
STATE OF MINNESOTA )
)ss.
COUNTY OF DAKOTA )
The foregoing was acknowledged before me thisYl day of Darter , 2017, by
Mike Maguire and Christina M.Scipioni,the Mayor and City Clerk of the City of Eagan,a Minnesota
municipal corporation,on behalf of the municipal corporation.
CjL
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Dougherty,Molenda, Solfest,Hills&Bauer P.A. s CAROL SUE TUMINI
14985 Glazier Avenue, Suite 525 t- , Notary pubtio.hthnesota
Apple Valley,MN 55124 `
`moi''My Commission 6xgNw Jan 31.2021
(952)432-3136
(RBB: 206-4768)
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City Council Meeting Minutes
October 3,2017
2 page
7. It was recommended to authorize/acknowledge military leave for George Wexler,SLETA
Police Officer.
C. It was recommended to ratify the check registers dated September 15 and 29, 2017.
D. It was recommended to approve the ordinary and customary contracts from Michael Neisius,
Nancy Raddatz Dance Studio, Bandon C Fay D.B.A.WPV, and Minnesota Park.
E. It was recommended to direct preparation of an ordinance amendment to City Code Chapter
6.39 regarding massage therapy regulations.
F. It was recommended to adopt a resolution approving a Premise Permit for the Prior Lake-Savage
Hockey Association to conduct lawful gambling at Axel's Bonfire, 1555 Cliff Road.
G. It was recommended to approve an On-Sale Liquor and Sunday License for Frank Eagan LLC
doing business as R Taco, located at 3345 Central Park Village Drive.
H. It was recommended to approve the final payment for Contract 17-04(Fitz Lake/Ponds LP-
26.3/26.5 improvements) in the amount of$8,000.00 to Alcon Construction, Inc.,and terminate
Contract 17-04 with Alcon Construction Inc.
I. It was recommended to approve a resolution in support of Dakota County's draft 5-year
Transportation Capital Improvement Program for 2018-2022.
J. It was recommended to receive the petition to vacate portions of public drainage and utility and
sidewalks,trailway and snow storage easements on Lot 1, Block 1, Eagan Place 4th Addition and
schedule a public hearing to be held on November 6, 2017.
K. It was recommended to approve a Change Order No.9 for Contract 16-04(Central Maintenance
Facility Renovations)and authorize the Mayor and City Clerk to execute all related documents.
L. It was recommended to approve the final payment for Contract 16-04(Central Maintenance
Facility Renovations) in the amount of$357,748.67 to Ebert Construction, Inc.,and accept the
improvements for perpetual City maintenance subject to warranty provisions.
M. It was recommended to approve Change Order No. 1 for Contract 16-21 (Central Area Street
Light Improvements)and authorize the Mayor and City Clerk to execute all related documents.
N. It was recommended to approve a Cost Share,Operation and Maintenance Agreement with
Robert and Gloria Levine (3719 Denmark Court West)for a Shoreland and Upland Buffer Project
at City Pond JP-15 (adjacent to Fish Lake)through the Water Quality Cost-Share Partnership
Program and authorize the Mayor and City Clerk to execute all related documents.
O. It was recommended to authorize submittal of a grant application for$7,200 to Dakota County
to control an aquatic invasive species(AIS) in Holz Lake and to conduct AIS prevention activities
and related public education and outreach in southeast Eagan.
P. Item was removed.
Q. It was recommended to approve a Conditional Use Permit for outdoor storage of a storage silo
on property located at 940 Lone Oak Road, subject to the following conditions:
1. This Conditional Use Permit shall be recorded at Dakota County within 60 days of approval
by the City Council.
2. The silo shall be maintained at the specified location on the Site Plan received August 29,
2017.
R. It was recommended to adopt the 5-year Capital Improvement Plan for Parks(2018-2022)as
presented to City Council on Tuesday,September 12,2017,and authorize the initiation of
the public improvement process for the 2018 programmed improvements.
S. It was recommended to accept the resignation of Advisory Planning Commission member
Matthew Woebke.