HomeMy WebLinkAboutVIII-08 Authorize Signature - Stormwater Management Agreement - Suite Living
City Council Memorandum
To: Mayor Fasbender and City Council
From: John Hinzman, Community Development Director
Date: March 6, 2023
Item: Authorize Signature: Stormwater Management Facilities Agreement - Suite
Living of Hastings - SE Corner of 33rd and Vermillion Streets
Council Action Requested:
Authorize signature of the attached Stormwater Management Facilities Agreement
between the City of Hastings and Landco Investments of Hastings LLC establishing
construction and maintenance obligations for stormwater management facilities.
A simple majority is necessary for action.
Background Information:
On October 3, 2022the City Council approved several actions related to development for
Suite Living, a 32 unit assisted living facility. The 2.71-acre property is generally located
southeast of 33rd and Vermillion Streets. Execution of a Stormwater Agreement was a
condition of Final Plat approval.
Financial Impact:
The addition of 32 assisted living units will add to the tax base and create needed housing
opportunities.
Advisory Commission Discussion:
N\A
Attachments:
• Stormwater Management Facilities Agreement
VIII-08
1
(Reserved for Recording Data)
STORMWATER MANAGEMENT FACILITIES AGREEMENT
This Stormwater Management Facilities 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 Landco Investments of Hastings, LLC, a Minnesota
limited partnership (“Developer”).
WHEREAS, Developer is the fee owner of certain real property situated in the City of
Dakota, County of Dakota, State of Minnesota legally described as follows:
Lot 1, Block 1, Suite Living of Hastings, according to the recorded plat thereof.
Abstract Property
PID: 19-18400-00-030
(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” may refer to
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 outside the public road right-of-way; and
WHEREAS, the City has required that the Developer make provision for the construction,
maintenance and repair of the Stormwater Management Facilities located within the boundaries of
the Property as shown on the Stormwater Facilities Location Map on Exhibit A attached hereto;
and
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
VIII-08
2
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 Civil Site Group dated February 1, 2023 (“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 easement document, 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.
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
VIII-08
3
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
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
VIII-08
4
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: Landco Investments of Hastings, LLC
Attn: ________________________
1824 Buerkle Road
White Bear Lake, MN 55110
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-08
5
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
VIII-08
6
DEVELOPER:
LANDCO INVESTMENTS OF HASTINGS, LLC
By:
Name:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
__________________, 2023 by , the
of Landco Investments of Hastings, 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
VIII-08
A-1
EXHIBIT A
STORMWATER FACILITIES LOCATION MAP
VIII-08
B-1
EXHIBIT B
STORMWATER BMP INSPECTION AND MAINTENANCE PLAN
VIII-08
B-2
VIII-08
B-3
VIII-08