HomeMy WebLinkAboutVIII-14 Authorize Signature - Utility Abondment Agreement - Utility Placement in ROW - Stencil
City Council Memorandum
To: Mayor Fasbender and City Council
From: John Hinzman, Community Development Director Date: April 18, 2022 Item: Authorize Signature: Agreement Regarding Abandoned Sewer Line - Stencil Addition
Council Action Requested:
Authorize signature of the attached Agreement Regarding Abandoned Sewer Line between the City and Lake Isabelle Flats LLC and NSKW Land LLC (Stencil). Approval would be subject to minor modifications by staff. A simple majority is necessary for action.
Background Information: A sanitary sewer service line exists beneath 4th Street to serve the former HEDRA owned UBC storage building at 415 4th Street E. The building was removed for the 89 unit Stencil Apartment project. Stencil will not be utilizing the service line for his new
building.
Municipal regulations require the owner to disconnect and abandon the sewer line. City Staff believes the potential damage and traffic interruptions on 4th Street outweigh the need for removal. The Agreement allows the service line to stay in place and establishes
certain requirements pertaining to potential costs for maintenance and removal.
Financial Impact: The addition of 89 apartments will add to the tax base and create needed housing opportunities.
Advisory Commission Discussion: N\A Council Committee Discussion:
N\A Attachments:
• Agreement Regarding Abandoned Sewer Line
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AGREEMENT REGARDING ABANDONED SEWER SERVICE LINE THIS AGREEMENT (“Agreement”) is made, entered into and effective this
____________ day of _________________________, 2022, by and between the City of Hastings,
a Minnesota municipal corporation (“City”), and Lake Isabelle Flats LLC, a South Dakota limited liability company, and NSKW LAND, LLC, a South Dakota limited liability company (individually and collectively “Owner”).
RECITALS
WHEREAS, Owner is the fee owner of real property generally located at 412 3rd Street East and 415 4th Street East, Hastings, Minnesota 55033 and legally described as follows:
Lot 1, Block 1, Stencil Addition
Abstract Property (the “Property”); and
WHEREAS, there was a storage building structure on the Property (“Storage Building”) that was removed in anticipation of the construction of a multi-unit apartment facility (“Redevelopment Project”); and
WHEREAS, the original 4-inch diameter sanitary sewer utility service line installed to the
415 4th Street East parcel runs beneath 4th Street East and connects to a sewer main under 4th Street East (“Original Sewer Line”), but the Original Sewer Line was never connected to the Storage Building; and
WHEREAS, the Owner does not intend to utilize the Original Sewer Line on the Property
and instead, will make a new connection to the sewer main at a different location and different size to accommodate the Redevelopment Project; and WHEREAS, as a result of the foregoing, the Original Sewer Line will be abandoned and
will not be used for the Redevelopment Project or any other purpose on the Property; and
WHEREAS, municipal regulations require Owner to disconnect, at its expense, the
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abandoned Original Sewer Line from the sewer main beneath 4th Street East; and
WHEREAS, disconnection of the Original Sewer Line may result in minor damage and loss of integrity to the surface and base of 4th Street East and may also result in unwanted traffic interruptions; and
WHEREAS, failure to disconnect the Original Sewer Line may lead to conditions
requiring corrective action in the future which may include, but are not limited to, leaking pipes, surface settlement resulting from broken pipes, or interference with other construction projects; and
WHEREAS, City is willing to waive the requirement that Owner disconnect and remove
the Original Sewer Line completely to the sewer main beneath 4th Street East, on the conditions that Owner, its successors and assigns agree: (1) if reasonably deemed necessary by City, to remove the Original Sewer Line at its cost; (2) to repair and remedy any unwanted conditions caused by the Original Sewer Line remaining connected and in place at its cost and to indemnify
and hold harmless City for any resulting damage or claims; (3) that if Owner fails to perform
removal or repair work in a timely manner, City may complete the needed work; and (4) that City may assess the cost of any such work against the Property as provided in this Agreement; and WHEREAS, Owner understands that the conditions and potential problems which may
result from the Original Sewer Line remaining connected and in place are not certain and cannot
be fully identified or described with certainty but Owner desires to assume all future responsibility and costs of correcting such conditions and damage. NOW THEREFORE, in consideration of the City’s willingness to waive the current
requirement that Owner disconnect and remove the Original Sewer Line completely to the sewer
main beneath 4th Street East, the parties make the following agreement: A. City waives the current requirement that Owner disconnect and remove the Original Sewer Line completely to the sewer main beneath 4th Street East, subject to the conditions and
requirements set forth herein and in the Recitals above.
B. In the event there is leakage from the Original Sewer Line or disturbance to the ground above the Original Sewer Line that the City reasonably determines has been caused by a breakage or other issue with the Original Sewer Line (a “Removal Event”), then, upon
written demand by City, Owner at its cost shall disconnect and remove the Original Sewer
Line completely to the sewer main beneath 4th Street East and reasonably restore any disturbed areas to their original conditions. If Owner fails to perform the removal or repair work as required herein within a reasonable time period after the occurrence of a Removal Event and the City’s delivery of written notice as required hereunder, City may undertake
all work necessary to disconnect and remove the Original Sewer Line, and Owner shall
immediately reimburse City for all costs actually incurred by the City in connection with removal of the Original Sewer Line (the “Removal Expense”).
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C. If Owner fails to timely reimburse City for all of the Removal Expense, Owner, for itself,
its successors and assigns, agrees that the City may assess the costs against the Property in the amount of the Removal Expense plus a $25.00 fee (if the Removal Expense is $10,000.00 or less) or a $50.00 fee (if the removal expense is greater than $10,000.00).
D. If the Removal Expense is $10,000.00 or less, the resulting assessments shall be paid over
a period of five years, but if the Removal Expense is over $10,000.00, the assessment shall be paid over a ten-year period. In addition, interest shall accrue on the unpaid assessment at a rate equal to the interest rate applied by the City for other assessments in the year the work is performed. If no such assessments are certified for other properties in the City
during that year, the interest rate shall be equal to the interest rate imposed on the most
recent assessment certified by the City. E. Where reference is made herein to Owner, reference shall be to Owner, its successors and assigns as to the Property and the rights and obligations hereunder shall run with the land
and shall burden the Property and all subsequent Owners thereof and City shall record this
Agreement on the public property records to provide notice of this agreement and all obligations hereunder to subsequent Owners of the Property. F. Owner shall indemnify and hold harmless City for any damages or claims resulting from
the Original Sewer Line remaining connected and in place pursuant to this Agreement
except to the extent such damages or claims result from the gross negligence or willful misconduct of the City or its employees, agents, officers, officials, or contractors. G. This Agreement shall be construed and enforced in accordance with the laws of the State
of Minnesota and any dispute shall be venued in the Dakota County District Court. Owner
consents to the jurisdiction of the Minnesota state courts. H. Notice. Notice shall mean notices given by one party to the other if in writing and if and when delivered or tendered: (i) in person; (ii) by depositing it in the United States mail 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 address to the party or person intended addressed as follows: If to City: City of Hastings
Attention: City Administrator
101 4th Street East Hastings, MN 55033
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If to Owner: Lake Isabelle Flats LLC and NSKW LAND, LLC
Attn: Nathan Stencil
P.O. Box 89624 Sioux Falls, SD 57109 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.
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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 ______________________, 202___, 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:
LAKE ISABELLE FLATS LLC
By:
Nathan Stencil
Its: President STATE OF )
) ss.
COUNTY OF ) The foregoing instrument was acknowledged before me this ____ day of __________________, 202___ by ______________________, the ______________________ of
Lake Isabelle Flats LLC, a South Dakota limited liability company, on behalf of said limited
liability company.
Notary Public
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NSKW LAND, LLC
By: Nathan Stencil
Its: President
STATE OF ) ) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of __________________, 202___ by ______________________, the ______________________ of NSKW LAND, LLC, a South Dakota 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.
1305 Corporate Center Drive, Suite 300 Eagan, MN 55121 651-451-1831
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