HomeMy WebLinkAboutVIII-14 Authorize Signature - Long Term Stormwater BMP Agreement - Custom Sawdust (525 East 31st St)
City Council Memorandum
To: Mayor Fasbender and City Council From: John Hinzman, Community Development Director Date: June 21, 2021 Item: Authorize Signature: Long Term Stormwater BMP Agreement - Custom Sawdust
- 525 East 31st Street.
Council Action Requested: Authorize signature of the attached Long Term Stormwater BMP Agreement between the City and Custom Sawdust, LLC for the development of a new office\warehouse building
located at 525 East 31st Street. A simple majority is necessary for action.
Background Information: The Agreement memorializes obligations for the private maintenance of stormwater management facilities and grants permission for City maintenance of facilities under
certain conditions at the cost of the developer or future owners. The City Council Site
Plan approval on March 22, 2021 and authorized sale of the property through HEDRA on April 5, 2021. Financial Impact:
Construction of the building will increase the tax base. Advisory Commission Discussion: N\A
Council Committee Discussion:
N\A
Attachments:
• Long Term Stormwater BMP Agreement
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LONG-TERM STORMWATER BMP MAINTENANCE AGREEMENT
This Long-Term Stormwater BMP Maintenance Agreement (“Agreement”) is made and entered into
this day of ________, 2021, by and between the City of Hastings, a Minnesota municipal
corporation, having a principal address of 101 East 4th Street, Hastings, Minnesota, 55033 (“City”) and Custom Sawdust LLC, a Minnesota limited liability company, having a principal address of 2699 Commerce Drive, Hastings, Minnesota 55033 (“Owner”). RECITALS A. The Municipal Separate Storm Sewer System (MS4) general permit is mandated by the federal regulations under the Clean Water Act and is administered by the Minnesota Pollution Control Agency. The MS4 permitting program gives owners or operators of municipal separate storm sewer systems approval to discharge stormwater to lakes, rivers and wetlands in Minnesota. B. The City of Hastings, as owner and operator of an MS4, is required to create a Stormwater Pollution Prevention Program (SWPPP) with various components, including regulatory mechanisms to ensure long-term maintenance of structural stormwater Best Management Practices (BMP’s) within its jurisdiction. Specifically, the City must provide for the establishment of legal mechanism(s) between the City and owners or operators responsible for the long-term maintenance of structural stormwater BMP’s implemented to meet the conditions of post-construction stormwater management required under the MS4 permitting program and the SWPPP which must include, at a minimum, provisions that: (1) allow the City to inspect the BMP’s and to perform necessary maintenance and assess the costs if the owner/operator has not conducted the required maintenance; (2) preserve the City’s right to ensure maintenance responsibility when those responsibilities are transferred to another party; and (3) include conditions designed to protect and preserve the BMP’s and site features implemented to comply with the SWPPP if site configurations or BMP’s change, thereby decreasing the effectiveness of the BMP’s, requiring implementation of new or improved BMP’s to ensure the conditions for post-construction stormwater management under the SWPPP continue to be met (collectively the “Maintenance Agreement
Requirements”).
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C. The City has adopted as part of its municipal ordinances Chapter 152: Stormwater Management, which provides in Hastings City Code §152.08(F)(3) that as a condition to City approval of any development or re-development projects with land disturbance meeting specified criteria, the responsible party shall enter into an agreement complying with the Maintenance Agreement Requirements. D. The Owner has agreed to install certain stormwater BMP’s and water quality infrastructure on Owner’s property in conjunction with the owners Custom Sawdust, LLC Site/Grading Plan (the “Project”), subject to certain requirements, including that the Owner enter into a long-term maintenance agreement for stormwater BMP’s as required under City Code City Code §152.08(F)(3). The agreement shall apply to the real property owned by Owner legally described as follows, to-wit (such tract or parcel of land is hereinafter referred to as the “Subject Property”):
Lot 5, Block 2, HASTINGS INDUSTRIAL PARK NO. 6, according to the recorded plat
thereof.
Torrens Property
PID: 19-32005-02-050
Certificate of Title No. 110570
E. As part of its application for site plan approval for the Subject Property, the Owner has
submitted, in addition to its stormwater pollution prevention plan, a stormwater BMP
inspection and maintenance plan (“Stormwater BMP Inspection and Maintenance Plan”), a
copy of which is attached hereto as Exhibit A, identifying all structural stormwater BMP’s to
be installed on the Subject Property requiring long-term maintenance by the Owner (the
“Facilities”), the Stormwater Access Easements (as defined below) providing access to the
facilities, and the minimum recommended inspection and maintenance requirements for the
Facilities. The Facilities include but are not limited to the infiltration basin to be constructed
on the Subject Property.
Drainage Easement Land Description: That part of Lot 5, Block 2, HASTINGS
INDUSTRIAL PARK NO. 6 described as a triangular shaped portion of land in the northeast
corner of the parcel having a east/west leg measuring 98.0 feet and a north/south leg measuring 114.0 feet. Access for maintenance to said drainage easement shall be across any portion of said subject Lot. F. The Owner has conveyed to the City and the public a permanent drainage and utility easements, described and depicted in more detail on the easement document, which is dedicated to the public for the purpose of providing perpetual access to the City, or its successors responsible hereunder, for purposes of inspecting and performing any necessary maintenance to the Facilities (the “Stormwater Access Easements”). G. The parties agree that the health, safety and welfare of the citizens of the City require that the Facilities be constructed and properly maintained and as such they desire to enter into a
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long-term maintenance agreement to satisfy the above referenced site plan approval and City Code §152.08(F)(3). NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the parties agree as follows: Section 1. Recitals Incorporated. The recitals set forth above are incorporated herein by reference to the same extent as if they were repeated here. Section 2. Long-Term Maintenance Obligations. The Owner, its successors and assigns as to the Subject Property shall in perpetuity or until this Agreement is terminated as provided in Section 9, regularly inspect and maintain the Facilities in good working order and condition acceptable to the City and in accordance with the long-term maintenance requirements described on the Stormwater BMP Inspection and Maintenance Plan. Sediment and debris accumulation resulting from the normal operation of the Facilities must be properly removed and disposed of off-site by the Owner. The Owner shall maintain a log sheet documenting all required inspections and maintenance by qualified individuals that shall include at a minimum the date and time the periodic inspection or maintenance is performed, the person completing the maintenance, a description of the inspection or maintenance performed, and any observations reasonably suggesting the Facilities may have failed or may require modification or additional maintenance to adequately perform the purposes for which they were installed (the “Inspection and Maintenance Log”). The Inspection and Maintenance Log shall be made available for periodic inspection at all reasonable times by the City. Section 3. Grant of Access to City for Inspection and Maintenance. The Owner hereby grants permission and a license to the City, its authorized agents and employees, to enter upon the Subject Property for the purposes of inspecting and maintaining the Facilities when deemed necessary by the City. Whenever reasonably possible, the City shall provide advance notice prior to entry and shall enter during normal business hours for the City. To the extent the City may gain sufficient access to inspect the Facilities via the Stormwater Access Easements or any other public drainage and utility easements, then the City shall limit its access on the Subject Property to those easement areas but if access to other portions of the Subject Property is needed for the City to perform the inspections authorized hereunder, as determined in the sole and exclusive, but reasonable, determination of the City, then the City may access those additional areas of the Subject Property for which access is reasonably necessary for the inspections upon advance notice to the Owner. Any drainage and utility easements shall be maintained by the Owner to allow reasonable, unrestricted access to the Facilities. Section 4. City Authorized to Perform Necessary Maintenance. In the event Owner fails to maintain the Facilities in good working order as required by this Agreement, or if the Owner fails to maintain the Inspection and Maintenance Log documenting that required inspection and maintenance are being performed as required, the City, with at least ten (10) day written notice in the event of a non-emergency, or reasonable notice in the event of emergency, may enter the Subject Property and take whatever reasonable maintenance and repair action it reasonably determines is necessary to return the Facilities to good working order. This provision shall not be construed to allow the City to erect any structure of a permanent nature on the Subject Property. It is expressly understood and agreed that the City is under no obligation to maintain or repair the Facilities and in
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no event shall this Agreement be construed to impose any such obligation on the City. Section 5. Payment of Costs; Assessment. In the event the City, pursuant to this Agreement, performs work of any nature, or expends any funds in the performance of said work for the labor, use of equipment, supplies, materials, or the like, (the “Maintenance Charges”) the Owner shall reimburse the City within thirty (30) days of issuance of an invoice thereof to the Owner for all the reasonable costs incurred by the City hereunder. If not paid within the prescribed time period, the Owner, for itself, its successors and assigns as to the Subject Property, agrees to have the Subject Property assessed for the full amount of the unpaid Maintenance Charges and with the entire assessed amount due and payable with the real estate taxes in the year following the certification of the assessment. Owner, for itself, its successors and assigns, agrees to waive any right to appeal the amount assessed against the Subject Property for the Maintenance Charges, whether the basis for the appeal is that the assessment exceeds the benefits to the Subject Property or on any other basis whatsoever. Owner, for itself, its successors and assigns, agrees that City can certify this assessment to Dakota County for collection with the real estate taxes without the necessity of City complying with any of the procedural or notice requirements outlined in Minnesota Statutes Chapter 429, or amendments thereto. Section 6. Restrictions on Modification or Removal of Facilities. The Owner may not modify or remove the Facilities without the prior written consent of the City, such consent to be granted or withheld in the reasonable discretion of the City. If with the consent of the City the Owner modifies or removes the Facilities, or if the site configuration of the Subject Property is changed, causing decreased stormwater BMP effectiveness, the Owner, at its cost, must install and implement new or improved structural stormwater BMP’s to ensure the conditions for stormwater management required under the MS4 permitting program and the SWPPP, and for which the Facilities were originally installed, continue to be met. Section 7. Liability and Indemnification of City. It is the intent of the parties that this Agreement shall ensure the proper maintenance of the Facilities by the Owner provided, however, that this Agreement shall not be deemed to create any additional liability of any party for damage alleged to result from or be caused by storm water runoff. The Owner shall indemnify and hold the City, its employees, agents, and elected officials (“City Indemnified Parties”) harmless from and against any and all liability for personal injuries, property damage, or for loss of life or property resulting from, or in any way connected with, the condition, construction, presence, existence, maintenance or use of the Facilities by the Owner or the City when the City acts in accordance with this Agreement, including any means of ingress or egress from the Subject Property, except liability for personal injuries, property damages, or loss of life or property caused by the negligence or willful misconduct of the City, its employees or agents. If a claim is asserted against any or all of the City Indemnified Parties, the City shall promptly notify the Owner and the Owner shall defend at its own expense any suit based on such claim or claims. If any judgment or claims against any or all of the City Indemnified Parties shall be allowed, the Owner shall pay any such judgment or claim and all costs and expenses incurred by the City Indemnified Parties in connection therewith except as otherwise
provided herein.
Section 8. Successors and Assigns; Recording of Agreement. This Agreement shall be recorded upon the public records in the Office of the Dakota County Recorder for any portion of the Subject
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Property that is abstract property, and shall be filed upon the public records in the Office of the Dakota County Registrar of Titles for any portion of the Subject Property that is Torrens property, and shall constitute a covenant running with the land and shall be binding on the Owner, its successors and assigns as to the Subject Property and any portion thereof. Where reference is made herein to Owner, reference shall be to Owner, its successors and assigns as to the Subject Property. Upon any conveyance of the Subject Property or any portion thereof by the Owner which, by agreement, assignment or operation of law the Owner transfers its rights or obligations under this Agreement to a third-party, the Owner shall give written notice of such transfer to the City along with the current contact information of the transferee and no such transfer of the Owner’s obligations hereunder shall be effective until the identified transferee signs a copy of this Agreement expressly assuming the obligations of the Owner hereunder. Upon any successive transfer or transfers of obligations hereunder, the transferring party shall give written notice of such transfer to the City along with the current contact information of the transferee and no such transfer shall be effective until the identified transferee signs a copy of this Agreement expressly assuming the obligations of the transferring party hereunder.
Section 9. Termination. This Agreement may be terminated only with the written consent of the parties when it is determined the Facilities are no longer necessary to maintain the conditions for stormwater management required under the MS4 permitting program and the SWPPP which may include removal or demolition of the structure to be constructed by the Owner and contemplated by the Stormwater Plan. Section 10. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Minnesota. Any action to enforce or interpret this Agreement shall be venued in the Dakota County District Court in Minnesota. Section 11. Entire Agreement. This Agreement constitutes the entire Agreement between the parties and any prior understanding where representation of any kind proceeding the date of this Agreement shall not be binding on either party except to the extent incorporated in this Agreement. Section 12. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if evidenced in writing signed by each party or an authorized representative of each party. Section 13. Notices. Any notice provided for or concerning this Agreement shall be in writing and
shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement or, in the case of assignment, to an address provided by the assigning party, by certified or registered mail, to the opposite party, at least ten days prior to the date of such notice. Section 14. Owner’s Default. In the event of the occurrence of a default on the part of the Owner
under this Agreement, Owner shall have the right, following receipt of notice from the City of any
default, to cure said default, which period of time shall be ten (10) days for a monetary default and
thirty (30) days for a non-monetary default; provided, however, that with respect to a non-monetary default, such thirty (30) day period shall be extended for an additional thirty (30) days if the cure of such default requires the consent or performance by a third party and such cure is being pursued by
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the Owner, diligently and in good faith. In no event shall the City be permitted to exercise any remedies under this Agreement until it has complied fully with this provision. Section 15. Attorney Fees. If any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all these sums that either party may be called on to pay, a reasonable sum for the successful party’s attorney’s fees. [Remainder of this page intentionally left blank. Signature pages to follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this document to be executed as of the day and year first above written. CITY:
CITY OF HASTINGS
By:
Mary Fasbender
Its Mayor
By:
Kelly Murtaugh
Its City Clerk
STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) On this ___ day of ______________________, 2021, 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 City Clerk of the City of Hastings, the municipality named in the foregoing instrument, and that the seal affixed to said instrument was signed and sealed on behalf of said municipality by authority of its City Council and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said municipality. Notary Public
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OWNER: CUSTOM SAWDUST LLC By: Jerry Grotjohn Its: President STATE OF MINNESOTA ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ____ day of __________________, 2021 by Jerry Grotjohn, the President of Custom Sawdust LLC, a Minnesota limited liability company, on behalf of said limited liability company.
Notary Public
This instrument drafted by And after recording, please return to:
Korine L. Land (#262432)
LeVander, Gillen & Miller, P.A. 633 South Concord Street, Suite 400 South St. Paul, Minnesota 55075
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EXHIBIT A STORMWATER BMP INSPECTION AND MAINTENANCE PLAN See Attached Custom Sawdust, LLC - Site/Grading Plan
Infiltration Basins
Maintenance Inspection Report
Date: ____________________________________________________________________
Inspector Name/Address/Phone Number: _______________________________________
Site Address: ______________________________________________________________
Owner Name/Address/Phone Number: _________________________________________
Drainage Area Stabilization (Inspect after large storms for first two years, Inspect yearly in spring or after large storms after first two years)
• Erosion control/planting/seeding necessary:________________________________
• Mowing, pruning and debris removal necessary: ____________________________
• Observations:________________________________________________________
Inlets & Pretreatment Structures (Inspect in Spring and Fall)
• Repair needed: _________________________________________________________
• Debris & sediment removal required:_________________________________________
• Erosion evident: ________________________________________________________
• Vegetation control necessary: ___________________________________
• Observations: __________________________________________________________
Basin (Inspect after large storms for first two years, Inspect yearly in spring or after large
storms after first two years)
• Condition of infiltration area: _____________________________________
• Surface erosion evident: ___________________________________________
• Debris/sediment removal required: ______________________________
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• Adequate drawdown/standing water: ______________________________
• Vegetation control necessary: _____________________________________
• Observations:___________________________________________________________
Outlet/Emergency Overflow (Inspect in Spring and Fall)
• Overflow type:___________________________________________________________
• Debris/sediment removal required: __________________________________________
• Repair needed:__________________________________________________________
• Observations: __________________________________________________________
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