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HomeMy WebLinkAboutVIII-07 Authorize Signature - Utility Abandonment Agreement - Vermillion Acres City Council Memorandum To: Mayor Fasbender and City Council From: John Hinzman, Community Development Director Date: June 6, 2022 Item: Authorize Signature: Agreement Regarding Abandoned Sewer Line - Vermillion Acres Council Action Requested: Authorize signature of the attached Agreement Regarding Abandoned Sewer Line between the City and Hastings Senior Living LLC (Headwaters Development) for the Vermillion Acres Senior Housing Development located at County Road 46-47 and Riverwood Drive. Approval would be subject to minor modifications by staff. A simple majority is necessary for action. Background Information: Existing sanitary sewer and water utility service lines exist on the site that will not be used for development of the 75 unit senior housing facility. 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 senior 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 VIII-07 1 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 Hastings Senior Living LLC, a Minnesota limited liability company (“Owner”). RECITALS WHEREAS, Owner is the fee owner of real property legally described as follows: Lot 1, Block 1, Vermillion Acres Addition Abstract Property (the “Property”); and WHEREAS, there are existing sanitary sewer and water utility service lines (“Original Service Lines”) at the site of the future construction of a multi-unit senior living facility (“Development Project”); and WHEREAS, the Owner does not intend to utilize the Original Service Lines on the Property and instead, will make new connections at a different location and different size to accommodate the Development Project; and WHEREAS, as a result of the foregoing, the Original Service Lines will be abandoned and will not be used for the Development Project or any other purpose on the Property; and WHEREAS, City is willing to waive the requirement that Owner remove the Original Service Lines completely on the conditions that Owner, its successors and assigns agree: (1) if reasonably deemed necessary by City, to remove the Original Service Lines at its cost; (2) to repair and remedy any unwanted conditions caused by the Original Service Lines remaining 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 VIII-07 WHEREAS, Owner understands that the conditions and potential problems which may result from the Original Service Lines remaining 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 remove the Original Service Lines completely, the parties make the following agreement: A. City waives the current requirement that Owner remove the Original Service Lines, subject to the conditions and requirements set forth herein and subject to compliance with the Plans attached as Exhibit A. B. In the event there is leakage from the Original Service Lines or disturbance to the ground above the Original Service Lines that the City reasonably determines has been caused by a breakage or other issue with the Original Service Lines (a “Removal Event”), then, upon written demand by City, Owner at its cost shall disconnect and remove the Original Service Lines completely 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 Service Lines, and Owner shall immediately reimburse City for all costs actually incurred by the City in connection with removal of the Original Service Lines (the “Removal Expense”). 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. The Owner agrees that the assessment amount is commensurate with the estimated special benefit of the Removal Expense to the Property. Owner hereby covenants with the City not to appeal or sue the City for a court to set aside, reduce, repeal, or invalidate the assessment, or for other relief from the payment of the City’s assessment up to the assessment amount against the Property for the Removal Expense. E. 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. VIII-07 3 F. 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. G. Owner shall indemnify and hold harmless City for any damages or claims resulting from the Original Service Lines 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. H. 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. I. 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 If to Owner: Hastings Senior Living LLC 7730 Laredo Drive, Unit 446 Chanhassen, MN 55317 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. [remainder of page intentionally left blank] VIII-07 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 VIII-07 5 DEVELOPER: HASTINGS SENIOR LIVING LLC By: Name: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ____ day of ____________, 2022 by _____________________________, the ________________ of Hastings Senior Living 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. 1305 Corporate Center Drive, Suite 300 Eagan, MN 55121 651-451-1831 VIII-07 A-1 EXHIBIT A PLANS VIII-07