WILLMAR -- The Willmar City Council voted 7-0 Monday night to approve an agreement with Duininck Bros. Inc. of Prinsburg to develop the Water View Business Park in southeast Willmar.
Before the agreement was approved, the council voted 5-2 to defeat an amendment that would have removed a controversial "self-help'' provision requested by Duininck. City Attorney Richard Ronning said keeping the provision in the developer's agreement could lead to litigation against the city.
The agreement was recommended by the council's Community Development Committee, which asked the full council to discuss the agreement and asked Ronning to explain the legal issues related to the self-help provision.
Also during the three-hour meeting, the council approved the Finance Committee's recommendation to set the budget at $984,000 for construction of the connection between the Civic Center and the Blue Line Center.
The cost estimate is substantially higher than the $300,000 originally budgeted for the Civic Center a couple of years ago when the city was planning projects to be funded with the local option sales tax.
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Finance Committee Chairman Denis Anderson noted that the Willmar Regional Treatment Center land acquisition and development project as well as the bike path project -- also to be funded by the sales tax -- will be delayed until 2007 because Department of Natural Resources grant applications are being prepared, which could provide additional funding.
Anderson said the $700,000 budgeted for the regional treatment center land acquisition and bike paths could be transferred to the Civic Center budget, which then would cover the cost for that project.
Under the self-help provision, if the contractor that receives the construction bid does not complete the work on time, Duininck could substitute a contractor to finish the work, according to Ronning.
"I didn't like it. It smelled strongly of extensive litigation,'' he said. Any contractor that gets kicked off the job by another prominent contractor isn't going to like it and is probably going to sue, he said.
Ronning suggested a clause be added to hold the city harmless, or if Duininck exercised its clause that the city only be responsible for the unfinished work.
Ronning said he understood that Duininck Bros. is under obligation to Wal-Mart to get the project completed by a certain time. Wal-Mart will be located on a 25-acre parcel in the 113-acre business park, according to plans approved by the city.
Mayor Les Heitke asked how Duininck could enter into an agreement with Wal-Mart "before they had all their ducks in a row.'' Heitke said Duininck wants the city to cover a risk that the company was not willing to cover.
If Duininck is the low bidder for the development project, then the legal issue is moot, said Ronning.
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Ronning agreed with a comment by council member Steve Gardner that the clause could decrease the amount of competition for the work.
City Administrator Michael Schmit said the contract for the work is between the city and the successful contractor. "We will decide if they did not perform, and in the event that decision is made, Duininck has the right to come in,'' he said.
Schmit said he respected Ronning's opinion but said the city tried to reach a compromise with Duininck and limit the city's exposure.
Council members voting against the amendment were Anderson, Bruce DeBlieck, Ron Christianson, Cindy Swenson and Rick Fagerlie. Voting in favor were Gardner and Jim Dokken. Doug Reese was absent.
When Heitke called the roll for the agreement, the vote was unanimous.
