HomeMy WebLinkAboutVIII-06 Authorize Signature - Stormwater Agreement - County Crossroads Center 4th Addition
City Council Memorandum
To: Mayor Fasbender and City Council
From: John Hinzman, Community Development Director
Date: August 15, 2022
Item: Authorize Signature: Stormwater Facilities Maintenance Agreement - County
Crossroads Center 4th Addition
Council Action Requested:
Authorize Signature of the attached Stormwater Facilities Maintenance Agreement between
the City of Hastings and Current33 Apartments LLC establishing stormwater
maintenance obligations and responsibilities for County Crossroads Center 4th Addition.
Approval would be subject to minor changes prior to final signature. A simple majority
is necessary for action
Background Information:
On March 7, 2022, the City Council approved the plat of County Crossroads Center 4th
addition (along with rezoning and site plan approval) allowing Enclave Development to
construct 211 apartment units south and east of 33rd and Vermillion Streets
Financial Impact:
The increase of 211 apartment units increases the land value and provides needed
housing.
Advisory Commission Discussion:
N\A
Council Committee Discussion:
N\A
Attachments:
• Stormwater Facilities Maintenance Agreement
VIII-06
1
(Reserved for Recording Data)
STORMWATER MANAGEMENT FACILITIES AGREEMENT
This Stormwater Management Facilities 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 Current33 Apartments, LLC, a Minnesota limited liability company (“Developer”).
WHEREAS, Developer is the fee owner of certain real property situated in the City of
Hastings, County of Dakota, State of Minnesota legally described as follows: Lot 1, Block 1 and Outlot A, County Crossroads Center 4th Addition, according to the recorded plat thereof.
(the “Property”); and WHEREAS, Developer has obtained the approval of the City for the development of the Property for a Stormwater Management Facilities; and
WHEREAS, as used herein, the term “Stormwater Management Facilities” refers to the private storm sewer system (i.e. pipes, catch basins, manholes, flared end sections, etc.), private water quality and/or water quantity facilities (i.e. detention basins, retention basins, swales, pipes, oil/water separators, sand filtering devices, infiltration facilities, sump structures, etc.) which are
located inside and outside the public road right-of-way and drainage and utility easements; and
WHEREAS, the City has required that the Developer make provision for the construction, maintenance and repair of the Stormwater Management Facilities as shown on the Stormwater Facilities Location Map on Exhibit A attached hereto; and
WHEREAS, the Stormwater Management Facilities are privately owned and maintained by Developer, as provided in this Agreement; and
VIII-06
2
WHEREAS, the City and Developer desire to set forth their understanding with respect to the construction, repair and maintenance of the Stormwater Management Facilities and the
responsibility relating to the costs of the repair and maintenance of the Stormwater Management
Facilities.
NOW THEREFORE, in consideration of the foregoing facts and circumstances, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Construction and Maintenance of Stormwater Management Facilities. The
Developer agrees to construct the Stormwater Management Facilities according to the construction plans drawn by Sambatek dated July 15, 2022 (“Plans”) and repair and maintain the Stormwater Management Facilities at its sole cost and expense. Maintenance of the Stormwater Management Facilities shall include but is not limited to compliance with the Stormwater BMP Inspection and
Maintenance Plan (“Inspection Plan”) attached as Exhibit B. Developer shall submit an annual
inspection report that complies with the Inspection Plan by September 30th of each year. If the required annual inspection report is not submitted to the City by September 30th, the City shall have the right to enter onto the property to conduct the annual inspection. If it is determined that the Stormwater Management Facilities (1) have not been maintained; or (2) are not functioning as
originally designed and intended; or (3) are in need of repair, the Developer agrees to restore the
Stormwater Management Facilities so that it functions as it was designed and intended. Failure to comply with the restoration ordered by the City shall be an event of default. The Developer further agrees that it will not use the Stormwater Management Facilities for snow storage and will inform its snow removal contractors of this provision of the Agreement.
2. Developer’s Default. In the event of default by the Developer as to any of the work
to be performed by it hereunder, following at least thirty (30) days prior written notice and Developer’s failure to cure such default within such time-frame, except in an emergency as determined by the City, the City may, at its option, perform the work and the Developer shall promptly, following receipt of an invoice and reasonable substantiation of such costs, reimburse
the City for any reasonable out-of-pocket expense incurred by the City.
3. License, Easement, and Assessment. This Agreement is a license for the City to act when so authorized under this Agreement, and it shall not be necessary for the City to seek a Court order for permission to enter the Property. When the City does any such work, the City may, in addition to its other remedies, assess the reasonable out-of-pocket cost in whole or in part. The
Developer has conveyed to the City and the public a permanent drainage and utility easement,
described and depicted in more detail on the plat of County Crossroads Center 4th Addition, 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 Stormwater Management Facilities.
4. Changes to Site Configuration or Stormwater Management Facilities. If site
configurations or Stormwater Management Facilities change, causing decreased effectiveness of Stormwater Management Facilities, new or improved Stormwater Management Facilities must be implemented to ensure the conditions for post-construction stormwater management continue to be met.
VIII-06
3
5. Terms and Conditions. This Agreement shall run with the land and shall be binding upon Developer’s successors and assigns with respect to the Property. The terms and conditions
of this Agreement shall be binding upon and shall insure to the benefit of the parties hereto and
their respective successors and assigns.
6. Developer Warranty. Developer warrants and represents the following to the City and acknowledges that this Agreement has been duly executed and delivered and constitutes the legal, valid and binding obligation of Developer enforceable in accordance with its terms. The
party signing on behalf of the Developer has been duly authorized by the entity to sign the
Agreement and bind the entity. Developer has been duly formed under the laws of the State of Minnesota and is in good standing under the laws of the jurisdiction in which the Property is located, is duly qualified to transact business in the jurisdiction in which the Property is located, and has the requisite power and authority to enter into and perform this Agreement and the
documents and instruments required to be executed and delivered by Developer pursuant
hereto. This Agreement and the documents and instruments required to be executed and delivered by Developer pursuant hereto have each been duly authorized by all necessary action on the part of Developer and such execution, delivery and performance does and will not conflict with or result in a violation of Developer’s organizational agreement or any judgment or order. The
execution, delivery and performance by Developer of this Agreement will not (a) violate any
provision of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award of any court, governmental agency or arbitrator presently in effect having applicability to Developer, or (b) result in a breach of or constitute a default under any indenture, loan or credit agreement or any other agreement, lease or instrument to which Developer is a party
or by which it or any of its properties may be bound.
7. 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, waive 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. 8. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Minnesota.
9. 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.
10. Consent. Developer consents to the recording of this Agreement. 11. Limitation of Liability. Notwithstanding any other provision of this Agreement, in
VIII-06
4
no event shall either party or any of their affiliates, by reason of any of their respective acts or omissions be liable whether in contract, tort, misrepresentation, warranty, negligence, strict
liability or otherwise for any special, indirect, incidental or consequential damages arising out of
or in connection with this Agreement, or the performance, non-performance or breach thereof. 12. 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 Developer: Current33 Apartments, LLC
Attn : Austin J. Morris
300 23rd Ave E, Suite 300 West Fargo, ND 58078 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 was intentionally left blank.]
VIII-06
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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 ______________________, 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
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-06
6
DEVELOPER: CURRENT33 APARTMENTS, LLC
By: Austin J. Morris Its Managing Member
STATE OF ) ) ss. COUNTY OF )
The foregoing instrument was acknowledged before me this ________day of __________________, 2022, by Austin J. Morris, the Managing Member of Current33 Apartments, 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-06
A-1
EXHIBIT A STORMWATER FACILITIES LOCATION MAP
VIII-06
B-1
EXHIBIT B STORMWATER BMP INSPECTION AND MAINTENANCE PLAN
VIII-06
B-2
VIII-06
B-3
VIII-06
B-4
VIII-06
