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HomeMy WebLinkAbout6.n. Approval of Stormwater System Maintenance Agreement EXECUTIVE SUMMARY City Council Meeting: January 5, 2016 AGENDA ITEM: Approval of Stormwater System Maintenance Agreement AGENDA SECTION: Consent PREPARED BY: Kim Lindquist, Community Development Director AGENDA NO. 6.n. ATTACHMENTS: Agreement APPROVED BY: ddj RECOMMENDED ACTION: Motion to Approve the Agreement and Designate the Mayor to Sign the Agreement SUMMARY As part of The Rosemount project, there was an underground stormwater system was installed due to the lack of space on site. This underground system was paid for through a Livable Communities Grant and is shared by the City and private development owner. The one exception is the outlet from the system, which is located under The Rosemount building, which is owned by the private developer only. Because the facility is jointly owned, an agreement for future maintenance and allocation of costs is required. The maintenance schedule, which includes annual inspections and cleaning if needed, also addresses significant repairs. Each would be paid for equally by the two parties. Stormwater rate control and water quality are important storm water improvements to the Downtown as the in place system was constructed prior to current standards. The use of an underground system allowed significant redevelopment of the site while improving upon the existing condition. The City Attorney and the Developers representative have both reviewed the document. RECOMMENDATION Motion to approve the Agreement. 1 DRAFT STORMWATER SYSTEM MAINTENANCE AGREEMENT THIS AGREEMENT (the “Agreement”) is made and entered into as of the 5th day of January, 2015, by and between the city of Rosemount, a Minnesota municipal corporation (the “City”) and Rosemount Senior Living Associates I, LLC, a Minnesota limited liability company (the “Developer”). RECITALS WHEREAS, the Developer and City are the fee owners of certain real property located in Dakota County, Minnesota, legally described on Exhibit A attached hereto (the “Property”); and WHEREAS, by a separate development agreement (the “Development Agreement”), the Developer, City, and Rosemount Port Authority agreed to the development of a long-term maintenance agreement that would lay out payments and expectations for an underground stormwater system mutually beneficial to each party; and WHEREAS, the parties now wish to set forth mutual obligations and conditions relating to the underground stormwater system, the location of which is shown on Exhibit B attached hereto; and NOW, THEREFORE, in consideration of mutual covenants of the parties set forth herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Term. This Agreement will remain in effect for fifty years from the date it is fully signed by the City and the Developer unless terminated for any reason by either party after 60 days’ notice to the other party. 2. Routine Maintenance of the Stormwater System. The Developer, for itself and its successor or assigns, agrees to maintain the Stormwater System and observe all drainage laws governing the operation and maintenance of the system. The Developer shall inspect and perform routine maintenance of the stormwater system as described in Exhibit C. The Developer shall also repair or replace any components of the system deemed necessary during routine maintenance. The Developer shall keep a record of all inspections and maintenance activities, and submit such records annually to the City. 2 458231v1 MDT RS230-60 3. Maintenance Costs. The City and Developer shall equally share all costs associated with routine maintenance, repairs or replacement items for the system, excluding the outlet. Developer is responsible for 100% of costs associated with maintenance, repair or replacement of the outlet. 4. City’s Maintenance Rights. The City may maintain the Stormwater System if the City reasonably believes that the Developer has failed to meet its maintenance obligations under this Agreement and such failure continues for 30 days after the City gives the Developer written notice of such failure or, if such tasks cannot be completed within 30 days, after such time period as may be reasonably required to complete the maintenance provided that Developer is making a good faith effort to do so. The City’s notice shall specifically state which maintenance tasks are to be performed. If Developer does not complete the maintenance within the time required in the City’s notice, the City may enter the Property as may reasonably be necessary to perform or contract for the maintenance. In such case, the City will send an invoice for the Developers share of the reasonable maintenance costs to the Developer, which shall include all reasonable staff time, engineering and legal and other reasonable costs and expenses incurred by the City. If the Developer fails to reimburse the City for its share of the costs and expenses within 30 days of the date of the invoice, the City may assess the Developers share of cost against the Developers Property. The Developer acknowledges that the maintenance work performed by the City regarding the Stormwater System benefits the Developer Property in an amount that exceeds the assessment and hereby waives any right to hearing or notice and the right to appeal the assessments otherwise provided by Minnesota Statutes, Chapter 429.089 Notwithstanding the foregoing, in the event of an emergency, as determined by the city engineer, the 30-day notice requirement to the Developer for failure to perform maintenance, is waived in its entirety by the Developer, and the Developer must reimburse the City for its proportionate share of the costs and be subject to assessment by the City for its proportionate share of the costs in the same manner as if the written notice had been given. 5. Long-Range Improvements. The Stormwater System will require significant rehabilitation and/or upgrades in the long term. Examples of such items are further described in Exhibit D. City and Developer shall share equally all costs associated with long-range improvements to the system. 4. Hold Harmless. The Developer agrees to indemnify and hold harmless the City and its agents and employees against any and all claims, demands, losses, damages, and expenses (including reasonable attorneys’ fees) arising out of or resulting from the Developer’s, or the Developer’s agents’ or employees’ negligent or intentional acts, or any violation of any safety law, regulation or code in the performance of this Agreement, without regard to any inspection or review made or not made by the City, its agents or employees or failure by the City, its agents or employees to take any other prudent precautions, except to the extent of intentional or grossly negligent acts of the City, its employees, agents and representatives. In the event the City, upon the failure of the Developer to comply with any conditions of this Agreement, performs said conditions pursuant to its authority in this Agreement, the Developer hereby agrees to indemnify and hold harmless the City, its employees, agents and representatives for its own negligent acts in the performance of the Developer’s required work under this Agreement, but this indemnification shall 3 458231v1 MDT RS230-60 not extend to intentional or grossly negligent acts of the City, its employees, agents and representatives. 5. Costs of Enforcement. The Developer agrees to reimburse the City for all reasonable costs incurred by the City in the enforcement of this Agreement, or any portion thereof, including court costs and reasonable attorneys’ fees after providing written notice to Developer and a reasonable opportunity to cure. 6. Rights Not Exclusive. No right of the City under this Agreement shall be deemed to be exclusive and the City shall retain all rights and powers it may have under Minnesota Statutes, Chapter 444 to acquire, construct, reconstruct, extend, maintain and otherwise improve the Stormwater System. 7. Notice. All notices required under this Agreement shall either be personally delivered or be sent by United States certified or registered mail, postage prepaid, and addressed as follows: a) as to Developer: Rosemount Senior Living Associates I, LLC Attn: Mark Appelbaum 5407 Excelsior Blvd. – Suite C St. Louis Park, MN 55416 b) as to City: City of Rosemount 2875 – 145th Street W. Rosemount, MN 55068 ATTN: City Administrator with a copy to: Kennedy & Graven 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 ATTN: Rosemount City Attorney or at such other address as either party may from time to time notify the other in writing in accordance with this paragraph. 8. Amendment. This Agreement may not be amended without the express written consent of both parties. 9. Successors and Assigns. All duties and obligations of Developer under this Agreement shall also be duties and obligations of Developer’s successors and assigns. The terms and conditions of this Agreement shall run with the Property. 10. Effective Date. This Agreement shall be binding and effective as of the date first written above. 4 458231v1 MDT RS230-60 ROSEMOUNT SENIOR LIVING I, LLC By: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) This instrument was acknowledged before me on ________________ 2015, by _________________, the ______________________ of Rosemount Senior Living I, LLC, a Minnesota limited liability company, on behalf of the limited liability company. ____________________________________ Notary Public 5 458231v1 MDT RS230-60 CITY OF ROSEMOUNT By: William Droste, Mayor By: Clarissa Hadler, City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this ___ day of _________, 2015, by__________________ and _______________, the mayor and the city clerk, respectively, of the city of Rosemount, a Minnesota municipal corporation, on behalf of the municipal corporation. Notary Public This instrument drafted by: Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 6 458231v1 MDT RS230-60 EXHIBIT A TO STORMWATER SYSTEM MAINTENANCE AGREEMENT Legal Description of the Properties Lot 1, Block 1 Rosemount Senior Living Lot 2 Block 1 Rosemount Senior Living 7 458231v1 MDT RS230-60 EXHIBIT B TO STORMWATER SYSTEM MAINTENANCE AGREEMENT Location of Underground Stormwater System (final drawing of site plan with system to be attached) 8 458231v1 MDT RS230-60 EXHIBIT C TO STORMWATER SYSTEM MAINTENANCE AGREEMENT Maintenance Schedule and Routine Maintenance Items Frequency: Inspections shall be completed annually. Inspection Check List: Check quality of street or parking surface. Is there evidence of potholes or sinkholes? Is there evidence of an unusual amount of silt and soil build-up on the surface? Is there evidence of surface ponding during storm events? Check for pipe symmetry (uniform curvature). Flexible steel pipe is designed to handle minor deflections. Pipe structures deflected more than 7% from design shape, or those that show localized distortions may require further investigation. Check for pipe joint quality. Is there evidence of backfill material infiltrating into the pipe structure? Check for proper operation of outlet structure. Is the outlet drainpipe clogged? In dry conditions, has the system drained to the elevation Silt/sediment Deposition if silt deposition has significantly reduced the storage capacity of the system) it should be removed. This can be accomplished by the use of a “clam shell” device or vactor truck. removal is required. For perforated systems, sediment should be washed (or jetted) towards an access manhole and removed with a “clam shell” device or vactor truck. 9 458231v1 MDT RS230-60 Inspection Activity Recommended Inspection Frequency Maintenance Procedures/Actions 1. Visual inspection of street or parking surface As part of all inspection visits Notify maintenance staff/contractor if there is evidence of potholes, sinkholes, an unusual amount of silt build-up, or surface ponding during a storm event 2. Visual inspection for pipe symmetry (uniform curvature) Every 12 months Notify maintenance staff/contractor if deflections in pipe structure greater than 7% or localized distortions are present 3. Visual inspection for pipe joint quality Every 12 months Notify maintenance staff/contractor if there is evidence of backfill material infiltrating into the pipe structure 4. Visual inspection for proper operation of outlet structure Every 12 months Notify maintenance staff/contractor if the outlet drainpipe is clogged. In dry conditions the system should drain dry. 5. Sediment/silt accumulation in device Every 12 months depending on drainage area conditions Notify maintenance staff/contractor of need to remove sediment when baffled sedimentation areas volume has been reduced by 25% 6. Visual inspection for trash and debris Monthly and following large storm events Remove trash and debris from structure as outlined by manufacturer’s recommendation 7. Oil accumulation in device Every 12 months or following a known oil or gasoline spill Notify maintenance staff/contractor of need to remove oil when a layer of oil/gasoline develops on water surface in device 8. Visual inspection of internal components of device As part of all inspection visits Notify maintenance staff/contractor of any broken or missing components of device 10 458231v1 MDT RS230-60 EXHIBIT D TO STORMWATER SYSTEM MAINTENANCE AGREEMENT Long-Range Improvements/Upgrades The City anticipates that if the underground system does not continue to function to meet the stormwater standards of the project as determined by the City’s Stormwater Plan and downstream function, the City may determine that rehabilitation to system replacement may be needed. It is anticipated that major improvements would not be necessary until years 20-25.