HomeMy WebLinkAboutIX-05 Authorize Signature - Utility Abandonment Agreement – KFC
City Council Memorandum
To: Mayor Fasbender & City Councilmembers
From: Kori Land, City Attorney
Date: July 31, 2023
Item: Utility Abandonment Agreement
Council Action Requested:
Approve Utility Abandonment Agreement with KFC
Background Information:
BP Argonaut RE LLC, doing business as KFC, is constructing a restaurant at 1726 Vermillion
Street and during the engineering process, they discovered that there is the curb box for the original
water service line that will not be used but will remain in place. In addition, the original sanitary
sewer service line in the driveway off Highway 61 will also remain in place.
The City typically requires owners to disconnect any abandoned water service line and sewer line
from the water main and sanitary sewer main, which may result in minor damage and loss of
integrity to the surface and base of Highway 61 and may also result in unwanted traffic
interruptions; however failure to disconnect may lead to conditions such as leaking pipes, surface
settlement resulting from broken pipes, or interference with other construction projects.
The City is willing to waive the requirement that the owner disconnect and remove the lines
completely, on the conditions that the owner agrees to remove the lines later, if the City requires it
later, to repair and remedy any unwanted conditions caused by the lines remaining connected and
in place, and to indemnify and hold harmless City for any resulting damage or claims. In addition,
if the owner fails to do the work, the City can perform and assess the costs. KFC has agreed to the
terms and conditions of the agreement.
Financial Impact:
N/A
Advisory Commission Discussion:
N/A
Council Committee Discussion:
N/A
Attachments:
Utility Abandonment Agreement
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UTILITY ABANDONMENT AGREEMENT
THIS UTILITY ABANDONMENT AGREEMENT (“Agreement”) is made, entered
into and effective this ____________ day of _________________________, 2023, by and
between the City of Hastings, a Minnesota municipal corporation (“City”), and BP Argonaut RE
LLC, a Minnesota limited liability company (“Owner”).
RECITALS
WHEREAS, Owner is the fee owner of real property generally located at 1726 Vermillion
Street, Hastings, Minnesota 55033 and legally described as follows:
Parcel 1:
Lots 21 and 22, Block 7, William G. Le Duc’s Addition to the Town of Hastings.
Parcel 2:
Lots Twenty-three (23) and Twenty-four (24) in Block Seven (7) of Wm. G. Le Duc’s
Addition to the Town of Hastings.
Also that parcel of land commencing at the Southwest corner of Lot 24, in said Block 7,
running thence South perpendicular to the South line of said Lot 24 a distance of 34 feet;
thence East parallel to the South line of said Lot 24 a distance to the West line of Vermillion
Street; thence North along the West line of Vermillion Street a distance of 34 feet to the
Southeast corner of said Lot 24; thence West along the South line of said Lot 24 to place
of beginning.
Abstract Property
PIDs: 19-44700-07-210, 19-44700-07-220, 19-44700-07-230 and 19-44700-07-240
(the “Property”); and
WHEREAS, a restaurant and related improvements are being constructed on the Property
(“Redevelopment Project”); and
WHEREAS, the curb box in the driveway off of Highway 61 as depicted on Exhibit A as
Inset A, attached hereto and incorporated herein, will remain in place (“Original Water Service
Line”); and
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WHEREAS, the sanitary sewer service line in the driveway off of Highway 61 as depicted
on Exhibit A as Inset B, attached hereto and incorporated herein, will remain in place (“Original
Sewer Line”); and
WHEREAS, the Owner does not intend to utilize the Original Water Service Line nor the
Original Sewer Line on the Property and they will be abandoned, and instead, Owner will make a
new connection to the water main and sanitary sewer main at a different location as approved by
the City; and
WHEREAS, as a result of the foregoing, the Original Water Service Line and 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
abandoned Original Water Service Line and Original Sewer Line from the water main and sanitary
sewer main; and
WHEREAS, disconnection of the Original Water Service Line and Original Sewer Line
may result in minor damage and loss of integrity to the surface and base of Highway 61 and may
also result in unwanted traffic interruptions; and
WHEREAS, failure to disconnect the Original Water Service Line and 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 Water Service Line and Original Sewer Line completely, on the conditions that
Owner, its successors and assigns agree: (1) if reasonably deemed necessary by City, to remove
the Original Water Service Line and Original Sewer Line at its cost; (2) to repair and remedy any
unwanted conditions caused by the Original Water Service Line and 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 Water Service Line and 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 Water Service Line and Original
Sewer Line completely to the water main and sanitary sewer main, the parties make the following
agreement:
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A. City waives the current requirement that Owner disconnect and remove the Original Water
Service Line and Original Sewer Line completely to the water main and sanitary sewer
main beneath Highway 61, subject to the conditions and requirements set forth herein and
in the Recitals above.
B. In the event there is leakage from the Original Water Service Line and Original Sewer Line
or disturbance to the ground above the Original Water Service Line and Original Sewer
Line that the City reasonably determines has been caused by a breakage or other issue with
the Original Water Service Line and Original Sewer Line (a “Removal Event”), then, upon
written demand by City, Owner at its cost shall disconnect and remove the Original Water
Service Line and Original Sewer Line completely to the water main and sanitary sewer
main beneath Highway 61 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 Water Service Line and Original Sewer Line, and
Owner shall immediately reimburse City for all costs actually incurred by the City in
connection with removal of the Original Water Service Line and Original Sewer Line (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. 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 Water Service Line and 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.
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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
If to Owner: BP Argonaut RE LLC
Attn: Phil Atteberry
P.O. Box 2650
Klamath Falls, OR 97601
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 ______________________, 2023, 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:
BP ARGONAUT RE LLC
By:
Printed Name:
Its:
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
__________________, 2023, by ________________, the ___________________ of BP Argonaut
RE 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
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EXHIBIT A
DEPICTION OF ORIGINAL WATER SERVICE LINE AND ORIGINAL SEWER LINE
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