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HomeMy WebLinkAboutVIII-10 Authorize Signature - License to Encroach - Jocor - 1700 Vermillion Street City Council Memorandum To: Mayor Fasbender & City Councilmembers From: John Hinzman, Community Development Director Date: April 18, 2022 Item: Authorize Signature – License to Encroach – Jocor Holdings - 1700 Vermillion St Council Action Requested: Authorize signature of the attached License to Encroach Agreement between the City and Jocor Holdings, LLC (Joseph Schnell) owner of 1700 Vermillion Street (former Sunkist Tan) to allow right-of-way encroachments consisting of proposed concrete sidewalk\patio and an existing concrete pad. Approval would be subject to minor modifications by staff. A simple Council majority is necessary for action. Background Information: The subject property is being renovated and will be leased to Hastings Coop Creamery for retail and office space. Manufacturing operations of the creamery would remain at their current location. The License recognizes the existing encroachment and allows a new encroachment to accommodate a sidewalk to a service door and for future outdoor seating. The future outdoor seating would require a Sidewalk Café License. Financial Impact: Issuance of the license will allow for a property improvement and increase in valuation. Advisory Commission Discussion: N\A Council Committee Discussion: N\A Attachments: • Location Map • License to Encroach VIII-10 LOCATION MAP Encroachment Area VIII-10 LOCATION MAP Encroachment Area VIII-10 1 ENCROACHMENT AGREEMENT RELATING TO LANDOWNER IMPROVEMENTS ON 1700 VERMILLION STREET IN THE CITY OF HASTINGS, DAKOTA COUNTY, MINNESOTA THIS ENCROACHMENT AGREEMENT (“Agreement”) is made, entered into and effective this _____ day of , 2022, by and among the City of Hastings, a Minnesota municipal corporation (“City”), and JoCor Holdings LLC, a Minnesota limited liability company (“Landowner”). Subject to the terms and conditions hereafter stated and based on the representations, warranties, covenants, agreements and recitals of the parties herein contained, the parties do hereby agree as follows: ARTICLE 1 DEFINITIONS The following terms, unless elsewhere specifically defined herein, shall have the following meanings as set forth below. 1.1 City. “City” means the City of Hastings, a Minnesota municipal corporation. 1.2 City Improvements. “City Improvements” means all existing and future sanitary sewer, municipal water and storm water pipes, conduits, culverts, ditches, ponds, catch basins, water collection mechanisms, drainage facilities, maintenance access routes and other utility appurtenances lying within the City Property now or in the future. VIII-10 2 1.3 City Property. “City Property” means the following real property located in the City of Hastings, Dakota County, Minnesota: The right-of-way of 17th Street West located immediately adjacent to Landowner’s Property. 1.4 Construction Plan. “Construction Plan” means all of the plans and drawing specifications on file with the City, as amended and approved by the City, relating to Landowner Improvements, which are hereby incorporated by reference and made a part of this Agreement. 1.5 Cost Differential. “Cost Differential” means the difference between the Pre-Encroachment Costs and the Utility Costs in light of the existence of the Landowner Improvements. The City’s determination of the amount of the Cost Differential shall be binding on the Landowner. The City’s determination shall be appropriately supported by cost estimates obtained from independent contractors or engineers. 1.6 Encroachment Property. “Encroachment Property” means that portion of Landowner’s Property that encroaches into the City Property. The Encroachment Property is legally described on Exhibit B and depicted on Exhibit C. 1.7 Landowner. “Landowner” means JoCor Holdings LLC, a Minnesota limited liability company, and its assigns and successors in interest with respect to the Landowner’s Property. 1.8 Landowner Improvements. “Landowner Improvements” means Landowner’s concrete pad and sidewalk as detailed in the Construction Plan and located on the Encroachment Property within the City Property. Landowner Improvements may include the use of the Encroachment Area as a sidewalk café but only in conjunction with a current Sidewalk Café License issued by the City. 1.9 Landowner’s Property. “Landowner’s Property” means the real property located in the City of Hastings, Dakota County, Minnesota, legally described on Exhibit A. 1.10 Maintain. As used in this Agreement with respect to the Landowner Improvements, “Maintain” and derivations thereof means to upkeep and repair in accordance with relevant City ordinances and regulations applicable to such improvements, including but not limited to, complying with the nuisance ordinances in City Code Ch. 95. 1.11 Pre-Encroachment Costs. “Pre-Encroachment Costs” means a reasonable estimate by the City of the costs the City would have incurred for Utility Costs if the Landowner Improvements did not exist. 1.12 Utility Costs. “Utility Costs” means all costs incurred by the City, (whether performed by the City or its agents or contractors), for the inspection of and access to and repair, maintenance and replacement of the City Improvements located in the City Property and the placement of additional City Improvements in the City Property. Utility Costs, include, without VIII-10 3 limitation: excavation costs, labor costs, costs of removing fill, costs of re-burying the City Improvements, re-compacting the soils over the City Improvements, restoring the City Property area, and all engineering and attorneys’ fees incurred in connection therewith. Utility Costs also include the costs of temporarily removing the Landowner Improvements and subsequently replacing the Landowner Improvements in the City Property if such costs have not already been paid by the Landowner. ARTICLE 2 RECITALS 2.1 Landowner owns the Landowner’s Property. 2.2 Encroachment Property is being improved with Landowner Improvements. 2.3 City Property is within the Encroachment Property. 2.4 Subject to the terms of this Agreement, the City is willing to allow the Landowner Improvements to be placed within the City Property on the Encroachment Property if the following conditions are met: (a) The Landowner maintains the Landowner Improvements. (b) The Landowner agrees to pay the City any Cost Differential relating to inspections, access, repair, maintenance and replacement of City Improvements and the placement of any additional City Improvements in the City Property. (c) The Landowner agrees to temporarily remove the Landowner Improvements in the event the City has need to access the area where the Landowner Improvements exist in order for the City to inspect, repair, maintain, and replace the City Improvements or construct additional City Improvements in the City Property. ARTICLE 3 AGREEMENTS 3.1 Construction And Maintenance Of Landowner Improvements. Under the terms and conditions stated herein, Landowner, at its own cost, is hereby authorized by the City to make the Landowner Improvements in the City Property. The Landowner Improvements shall only be placed on the Encroachment Property at the locations specified in the Construction Plan and any approved Sidewalk Café License. The Landowner Improvements must be constructed according to the Construction Plan. Landowner shall not place any other structures, retaining walls, irrigation systems, buildings, fences, landscaping, trees or shrubs in the City Property, except for the Landowner VIII-10 4 Improvements, without the City’s written consent. After construction, the Landowner, at its own expense, shall maintain and repair the Landowner Improvements. 3.2 City Not Responsible for Landowner Improvements. Nothing contained herein shall be deemed an assumption by the City of any responsibility for construction, maintenance, replacement or repair of the Landowner Improvements. 3.3 Continuing Right to City Property. Nothing contained herein shall be deemed a waiver or abandonment or transfer of the right, title and interest that the City holds to the City Property. 3.4 Subordinate Position of Landowner Improvements. The Landowner Improvements are subordinate to the rights of the City in the City Property. 3.5 Risk of Loss. Landowner understands and agrees that the Landowner Improvements within the City Property may be adversely affected by damage caused to Landowner Improvements arising out of the City’s use of the City Property. The parties agree that the City is not responsible for such events; the City shall have no liability to Landowner for such events. Landowner assumes the risk of installing the Landowner Improvements in the City Property. 3.6 Landowner to Bear Cost of Relocating Landowner Improvements. The City is responsible for the repair and maintenance of the City Improvements in the City Property. The City may require the Landowner at the expense of the Landowner to temporarily remove and subsequently replace the Landowner Improvements in the City Property in order for the City to gain access to the City Improvements for the purpose of inspecting, repairing, maintaining, or replacing the City Improvements or adding future City Improvements. If the Landowner does not perform such tasks, the City may perform such tasks and in such case the Landowner shall reimburse the City for the City’s costs and expenses. Prior to commencing such tasks, the City shall send a notice to the Landowner and allow the Landowner twenty (20) days from the date of the written notice to perform the tasks. If the Landowner has not completed the work within the twenty (20) days, then the City may proceed to perform the tasks. Once the City’s costs and expenses have been determined by the City, the City shall send an invoice for such costs and expenses to the Landowner. The Landowner must pay the invoice within thirty (30) days after the date of the invoice. Such costs and expenses include, but are not limited to, costs charged the City by third parties such as contractors as well as the costs for City personnel that may have performed the work. Bills not paid shall incur the standard penalty and interest established by the City for utility billings within the City. 3.7 Emergency. Notwithstanding the requirements contained in Sections 3.6 relating to a twenty (20) day written notice to the Landowner to perform its obligations under Sections 3.6, the City shall not be required to give notice if the City Engineer determines that an emergency exists. In such instance, the City, without giving notice to the Landowner may perform the work and in such case the Landowner shall reimburse the City for the costs and expenses relating to the work. Once the City’s costs and expenses have been determined by the City, the City shall send VIII-10 5 an invoice for such costs and expenses to the Landowner. The Landowner must pay the invoice within thirty (30) days after the date of the invoice. Such costs and expenses include, but are not limited to, costs charged the City by third parties such as contractors as well as the costs for City personnel that may have performed the work. Bills not paid shall incur the standard penalty and interest established by the City for utility bills within the City. 3.8 Cost Deferential. If a Cost Deferential occurs relating to the access to or inspection, maintenance, repair or replacement of the City Improvements or relating to construction of new City Improvements in the future, then the Landowner shall pay the Cost Deferential to the City. The Landowner must make payment for the Cost Deferential within 30 days after the City has sent a written invoice for the Cost Deferential to the Landowner. 3.9 Remedies. If the Landowner fails to perform its obligations under this Agreement, then the City may avail itself of any remedy afforded by law or in equity and any of the following non-exclusive remedies: (a) The City may specifically enforce this Agreement. (b) If Landowner fails to make payments under Section 3.6, then the City may certify to Dakota County the amounts due as payable with the real estate taxes for the Encroachment Property in the next calendar year; such certifications may be made under Minnesota Statutes, Chapter 444 in a manner similar to certifications for unpaid utility bills. The Landowner waives any and all procedural and substantive objections to the imposition of such usual and customary charges on the Encroachment Property. Further, as an alternate means of collection, if the written billing is not paid by the Landowner, the City, without notice and without hearing, may specially assess the Encroachment Property for the costs and expenses incurred by the City. The Landowner hereby waives any and all procedural and substantive objections to special assessments for the costs including, but not limited to, notice and hearing requirements and any claims that the charges or special assessments exceed the benefit to the Encroachment Property. The Landowner waives any appeal rights otherwise available pursuant to Minnesota Statute § 429.081. The Landowner acknowledges that the benefit from the performance of tasks by the City equals or exceeds the amount of the charges and assessments for the costs that are being imposed hereunder upon the Encroachment Property. No remedy herein conferred upon or reserved to the City shall be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. VIII-10 6 3.10 Indemnification. The Landowner shall indemnify, defend and hold the City, its council, agents, consultants, attorneys, employees and representatives harmless against and in respect of any and all claims, demands, actions, suits, proceedings, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies including interest, penalties and attorneys’ fees, that the City incurs or suffers, which arise out of, result from or relate to any of the following: (a) The Landowner Improvements; (b) Installation and maintenance of the Landowner Improvements; (c) Failure by the Landowner to observe or perform any covenant, condition, obligation or agreement on their part to be observed or performed under this Agreement; and (d) Use of the City Property for Landowner Improvements. 3.11 City Duties. Nothing contained in this Agreement shall be considered an affirmative duty upon the City to perform the Landowner’s obligations contained in Article 3 if the Landowner does not perform such obligations. ARTICLE 4 MISCELLANEOUS PROVISIONS 4.1 No Third Party Recourse. Third parties shall have no recourse against the City under this Agreement. 4.2 Recording. The City shall record this Agreement with the Dakota County Recorder against the Encroachment Property. Landowner shall pay for the cost of recording. 4.3 Binding Agreement. The parties mutually recognize and agree that all terms and conditions of this recordable Agreement shall run with the Encroachment Property and shall be binding upon the heirs, successors, administrators and assigns of the parties. The obligations of the Landowner contained in this Agreement are joint and several. 4.4 Amendment And Waiver. The parties hereto may by mutual written agreement amend this Agreement in any respect. Any party hereto may extend the time for the performance of any of the obligations of another, waive any inaccuracies in representations by another contained in this Agreement or in any document delivered pursuant hereto which inaccuracies would otherwise constitute a breach of this Agreement, waive compliance by another with any of the covenants contained in this Agreement and performance of any obligations by the other or waive the fulfillment of any condition that is precedent to the performance by the party so waiving of any of its obligations under this Agreement. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. VIII-10 7 4.5 Governing Law. This Agreement shall be governed by and construed in accord with the laws of the State of Minnesota and any action shall be venued in Dakota County District Court. 4.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 4.7 Headings. The subject headings of the sections in this Agreement are included for purposes of convenience only and shall not affect the construction of interpretation of any of its provisions. 4.8 Notice. Notice shall mean notice given by one party to the other if in writing and if and when delivered or tendered either: (i) in person; (ii) by depositing it in the United States main in a sealed envelope, by certified mail, return receipt requested, with postage and postal charges prepaid, or (iii) by proper and timely delivery to an overnight courier service addressed by name and addressed to the party or persons intended to be addressed as follows: If to City: City of Hastings Attention: City Administrator 101 4th Street East Hastings, MN 55033 If to Landowner: JoCor Holdings LLC 223 Broad Street, Suite 103 Mankato, MN 56001 or to such other address as the party addressed shall have previously designated by notice given in accordance with this Section. Notices shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, on the third day after mailing if mailed by United States postal service as provided above, or within twenty-four (24) hours if sent via overnight courier service provided, that a notice not given as above shall, if it is in writing, be deemed given if and when actually received by a party. [The remainder of this page has been intentionally left blank.] VIII-10 8 IN WITNESS WHEREOF, the parties have executed this Agreement the year and day first set forth above. CITY: CITY OF HASTINGS By: ____________________________________ Mary Fasbender, Mayor ATTEST: By: _____________________________________ Kelly Murtaugh, City Clerk STATE OF MINNESOTA ) ) COUNTY OF DAKOTA ) On this ___ day of , 2022, 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 that the seal affixed to said instrument was signed and sealed in 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 VIII-10 9 LANDOWNER: JOCOR HOLDINGS LLC Printed Name: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF _________________ ) On this ____ day of , 2022, before me a Notary Public within and for said County, personally appeared ______________________, to me personally known, who being by me duly sworn, did say that s/he is the ________________________ of JoCor Holdings LLC, a Minnesota limited liability company, the entity named in the foregoing instrument, and that said instrument was signed 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. 1305 Corporate Center Drive, Suite 300 Eagan, MN 55121 651-451-1831 VIII-10 A-1 EXHIBIT A LEGAL DESCRIPTION OF LANDOWNER’S PROPERTY That real property located in the City of Hastings, Dakota County, Minnesota, legally described as follows: Lots 19 and 20, Block 7, Wm. G. LeDuc’s Addition, Dakota County, Minnesota. Abstract Property PIDs: 19-44700-07-190 and 19-44700-07-200 VIII-10 B-1 EXHIBIT B LEGAL DESCRIPTION OF ENCROACHMENT PROPERTY That real property located in the City of Hastings, Dakota County, Minnesota, legally described as follows: Commencing at the northeast corner of Lot 19, Block 7, Wm. G. LeDuc’s Addition, Dakota County, Minnesota; thence westerly along the northerly property line of said Lot 19 a distance of 80 feet to the point of beginning of the easement to be described; thence northerly at right angles a distance of 14 feet, thence westerly at right angles a distance of 22.66 feet; thence southerly at right angles a distance of 11.66 feet; thence westerly at right angles a distance of 12.83 feet; thence southerly at right angles to the intersection of the northerly property line of said Lot 19; thence easterly along the northerly property line of said Lot 19 to the point of beginning of the easement to be described. VIII-10 C-1 EXHIBIT C DEPICTION OF ENCROACHMENT PROPERTY VIII-10