HomeMy WebLinkAboutVIII-06 Authorize Signature - Waiver of Assessment - Hastings Creamery
City Council Memorandum
To: Mayor Fasbender & City Councilmembers
From: John Hinzman, Community Development Director
Date: September 5, 2023
Item: Authorize Signature: Assessment Appeal Waiver Agreement – Hastings
Creamery
Council Action Requested: Authorize signature of the attached Assessment
Appeal Waiver Agreement between the City of Hastings and 3D LLC for
sanitary sewer cleaning and gate valve replacement at the Hastings Co-op
Creamery located at 1701 Vermillion Street. A simple majority of Council is
necessary for action.
Background Information: The City would clean the private sewer line and
replace the water gate valve and 3D LLC agrees to authorize the City to certify
the cost of work completed as a Special Assessment against the property and to
waive appeal of the assessment.
Financial Impact: The City would recoup expenses upon sale of the property.
Advisory Commission Discussion: N\A
Council Commission Discussion: N\A
Attachments:
• Assessment Waiver Appeal Agreement
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CITY OF HASTINGS
ASSESSMENT APPEAL WAIVER AGREEMENT
FOR 1701 VERMILLION STREET
THIS AGREEMENT FOR AN ASSESSMENT APPEAL WAIVER (“Agreement”) is
entered into and effective as of the _____ day of __________, 2023 (“Agreement Date”), by and
between the City of Hastings, a Minnesota municipal corporation (“City”), and 3D LLC, a Minnesota
limited liability company (“Owner”).
WITNESSETH:
WHEREAS, the Owner is the fee simple Owner of property located at 1701 Vermillion
Street, Hastings, Dakota County, Minnesota, legally described on the attached Exhibit A (“Property”);
and
WHEREAS, the Owner has been cited by the City for City Code violations involving its
defective gate valve and sanitary sewer line at the Property; and
WHEREAS, the City Code violations impact the public health, safety and general welfare of
the public, such that the expediency of correcting the violations is in the best interest of the City; and
WHEREAS, the Owner is not in a financial position to pay for the corrections necessary at
this time but is willing to enter into this Agreement to reimburse the City for the costs of the
corrections over a period of time; and
WHEREAS, the City has agreed to directly contract with a contractor who will correct the
City Code violations; and
WHEREAS, in an effort to remove the blight, the City is willing to pay the contractor directly
and levy the costs against the Property as provided herein; and
WHEREAS, the Owner is willing to agree to the levy of the costs against the Property, in an
amount that equals the Assessment Waiver Amount for the Assessment Term with interest accrual at
the Assessment Interest Rate to pay for the cost of the Project; and
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WHEREAS, the Owner is willing to waive his assessment appeal rights up to the Assessment
Waiver Amount which constitutes an estimated benefit pursuant to Minnesota Statutes, Chapter 429
in the manner authorized by Minnesota Statutes § 462.3531 in return for the City’s agreement to pay
for the costs of the Project.
NOW, THEREFORE, in consideration of the mutual promises and covenants of each to the
other contained in this Agreement and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto do covenant and agree as follows:
ARTICLE I
THE AGREEMENT
Section 1.01 Purpose. The purpose of this Agreement is to memorialize the covenants and
agreements between the Owner and the City with regard to the Property and the Project including the
Owner’s waiver of assessment appeal rights up to the Assessment Waiver Amount which constitutes
an estimated benefit pursuant to Minnesota Statutes, Chapter 429 in the manner authorized by
Minnesota Statutes § 462.3531 in return for the City’s efforts to facilitate the collection of funding for
the Project.
Section 1.02 Term. The term of this Agreement shall commence on the Agreement Date and
shall terminate upon the expiration of the Assessment Term (or upon prepayment of the levied
assessment).
ARTICLE II
DEFINITIONS
Section 2.01 Definitions. The following are terms used in this Agreement. His meanings as
used in this Agreement shall be expressly indicated below, unless the context of this Agreement
requires otherwise:
(a) Agreement: This Agreement to memorialize the covenants and agreements between
the Owner and the City with regard to the Property and the Project including the
assessment appeal waiver provided herein pursuant to Minnesota Statutes, Chapter
429 in the manner authorized by Minnesota Statutes § 462.3531.
(b) Agreement Date: The date written in the first paragraph of the Agreement.
(c) Assessment Interest Rate: The special assessment levied against the Property shall
accrue interest at a rate of three percent (3.00%) per year for the Assessment Term.
(d) Assessment Term: The term of the special assessment levied against the Property shall
be five (5) years.
(e) Assessment Waiver Amount: The total Assessment Amount is $16,258.88, which is
commensurate with the estimated special benefit of the Project to the Property.
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(f) City: The City of Hastings, a Minnesota municipal corporation.
(g) Project: The removal and replacement of the gate valve and cleaning of sanitary sewer
line located on the Property.
(h) Owner: 3D LLC, a Minnesota limited liability company.
(i) Property: The property located at 1701 Vermillion Street, Hastings, MN 55033,
(Dakota County Property Identification Number 19-03700-05-011) as legally
described in Exhibit A which is attached hereto and made a part hereof.
ARTICLE III
COVENANTS AND AGREEMENTS
Section 3.01 Covenants and Agreements of the Owner. The Owner covenants and agrees
with the City that:
(a) Assessment Appeal Waiver: Owner hereby authorizes the City to certify to the Dakota
County Auditor/Property Tax Assessor a special assessment against the Property up
to the Assessment Waiver Amount for Project.
The Owner hereby waives all rights to assessment notices, hearings and appeals, and
all other rights pursuant to Minnesota Statutes § 429.061, § 429.071 and § 429.081 for
the special assessment against the Property up to the Assessment Waiver Amount,
except as modified pursuant to Section 3.02(a). The Owner hereby waives any and all
procedural and substantive objections to the special assessment up to the Assessment
Waiver Amount against the Property, including, but not limited to, notice and hearing
requirements and any claim that any or all of the Assessment Waiver Amount against
the Property exceeds the benefit to the Property for the Project. The Owner
acknowledges and agrees that the benefit of the Project to the Property does in fact
equal or exceed the Assessment Waiver Amount. The Owner also acknowledges and
agrees that the Property receives a special benefit equal to or exceeding the
Assessment Waiver Amount.
The City and the Owner acknowledge and agree that the Owner’s waiver of
assessment appeal rights pursuant to Minnesota Statutes, Chapter 429, is capped at the
Assessment Waiver Amount by operation of Minnesota Statutes § 462.3531, except
as provided herein. The City and the Owner acknowledge and agree that the Owner
may appeal any special assessment above the Assessment Waiver Amount.
(b) Owner’s Covenant Not to Sue the City: Owner hereby covenants with the City not to
appeal or sue the City for a court to set aside, reduce, repeal, or invalidate the levied
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assessment, or for other relief from the payment of the City’s levy of a special
assessment up to the Assessment Waiver Amount against the Property.
(c) Owner’s Covenant that Owner is the Fee Owner of the Property: Owner hereby
covenants and warrants with the City that Owner is seized in fee of the Property
and has good right to enter into this Agreement with the City.
Section 3.02 Covenants and Agreements of the City. The City covenants and agrees with
the Owner that:
(a) City to Pay for Project: The City agrees to pay for the costs of the Project directly to
the contractor upon proof of invoices from the contractor based on a pre-approved
amount that is no greater than the Assessment Waiver Amount. If the amount of the
invoices from the contractor is more or less than the Assessment Waiver Amount, then
the Assessment Waiver Amount shall be increased or reduced accordingly and the
parties agree that the Section 3.01(a) still applies, in that the Property receives a special
benefit equal to or exceeding the revised Assessment Waiver Amount.
(b) Assessment Waiver Amount: The City agrees that the City will certify/levy a special
assessment against the Property only up to the Assessment Waiver Amount for the
Project pursuant to this Agreement.
(c) City’s Covenant to Construct the Project: City hereby covenants and warrants with
the Owner that City will contract directly with a contractor to construct the Project
. Owner shall coordinate all permits for the Project with the City.
(d) City Recording of this Agreement: The City will record this Agreement against the
Property and the costs of recording shall be included in the Assessment Waiver
Amount.
(e) Prepayment of Assessment: The City agrees that the Owner may prepay some or all
of the City’s assessment levy against the Property for the Project with no penalty and
only with interest accrual pursuant to Minnesota Statutes § 429.061.
ARTICLE IV
DEFAULT
Section 4.01 Default. If a party to this Agreement materially defaults in the due and timely
performance of any of its covenants, or agreements hereunder, the other party may give notice of
default of this Agreement. The notice shall specify with particularity the default or defaults on which
the notice is based. The notice shall specify a ten (10) day cure period within which the specified
default or defaults must be cured. If the specified defaults are not cured within the cure period, the
other party may pursue all remedies and sanctions available at law and in equity, including specific
performance.
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Section 4.02 Attorneys’ Fees, Costs and Expenses. The Owner agrees to pay the City the
amount of the City’s assessment levy up to the Assessment Waiver Amount with accrued interest
together with the City’s attorneys’ fees, costs and expenses to defend the special assessment levy by
the City pursuant to this Agreement. The Owner acknowledges and agrees that the Owner would be
unjustly enriched if the City’s assessment levy pursuant to this Agreement was set aside, reduced,
repealed or invalidated by a court with jurisdiction over the Property since the Owner requested the
Project and this assessment financing for the Project. The Owner agrees that the court with jurisdiction
over the Property shall award the City the assessment levy up to the Assessment Waiver Amount with
accrued interest together with the City’s attorneys’ fees, costs and expenses for breach of the Owner’s
covenant not to appeal or sue the City pursuant to Article III, Section 3.01(b).
ARTICLE V
GENERAL PROVISIONS
Section 5.01 Notices. All notices, requests, demands or other communications required or
permitted by this Agreement shall be in writing and delivery shall be deemed to be sufficient if
delivered personally or by registered or certified mail, return receipt accepted, postage prepaid,
addressed as follows:
If to the City: City of Hastings
Attn: City Administrator
101 4th Street East
Hastings, MN 55033
If to the Owner: 3D LLC
1702 Vermillion St.
Hastings, MN 55033
Section 5.02 Non-Assignability. Neither the City nor the Owner shall assign any interest in
this Agreement nor shall either party transfer any interest in the same without the prior written consent
of the other party.
Section 5.03 Binding Effect. This Agreement and the terms, conditions and covenants
contained herein and the transaction contemplated hereunder shall be binding upon and inure to the
benefit of the parties hereto and his respective successors, heirs, personal representatives, and
permitted assigns. This Agreement shall further be binding on subsequent purchasers of the Property
and shall run with the Property herein described.
Section 5.04 Severability. In the event any provision of this Agreement shall be held invalid
or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Section 5.05 Amendments, Changes and Modifications. This Agreement may be amended
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or any of its terms modified or changed only by a written amendment authorized and executed by the
City and the Owner.
Section 5.06 Counterparts. This Agreement may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the same
instrument.
Section 5.07 Entire Agreement. This Agreement shall constitute the entire agreement
between the parties and shall supersede all prior oral or written negotiations.
Section 5.08 Notice To Buyers. The Owner agrees to notify and provide any buyer of the
Property with an executed copy of this Agreement if the Owner sells any interest in the Property
following the execution of this Agreement by both the Owner and the City, but before the recording
of this Agreement with Washington County Recorder and/or Registrar of Titles.
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IN WITNESS WHEREOF, the City and the Owner have caused this Agreement to be executed by
his duly authorized representatives.
CITY OF HASTINGS
By: ____________________________
Mary Fasbender
Mayor
By: ____________________________
Kelly Murtaugh
City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
On this _____ day of _______________, 2023, before me a Notary Public within and for said
County, personally appeared Mary Fasbender and Kelly Murtaugh to me personally known, who
being each by me duly sworn, each did say that they are respectively the Mayor and the City Clerk of
the City of Hastings, the Minnesota municipal corporation named in the foregoing instrument, and
was signed on behalf of said municipal corporation by authority of its City Council and said Mayor
and City Clerk acknowledged said instrument to be the free act and deed of said municipal
corporation.
Notary Public
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OWNER
_____________________________
Chris Opitz
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
On this _____ day of _______________, 2023, before me a Notary Public within and for said
County, personally appeared , the of 3D LLC,
the Minnesota limited liability company named in the foregoing instrument, and was signed on behalf
of said company by its authority and said instrument to be the free act and deed of said company.
Notary Public
This instrument drafted by and after recording please return to:
Korine L. Land, #262432
LeVander, Gillen & Miller, P.A.
1305 Corporate Center Drive, Suite 300
Eagan, Minnesota 55121
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EXHIBIT A
LEGAL DESCRIPTION
Legal description to be confirmed:
North 150 feet of the west 330 feet of Lot 5, Block 5, Auditor’s Subdivision No. 9, Dakota County,
Hastings, Minnesota
PID: 19-03700-05-011
Torrens Property
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