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HomeMy WebLinkAbout9.b. Authorize Sewer Extension Development Agreement for School District Property at Akron and BonaireI:\City Clerk\Agenda Items\Approved Items\6.f. Authorize Sewer Extension Development Agreement for School District Property at Akron and Bonaire.docx EXECUTIVE SUMMARY City Council Regular Meeting: August 21, 2018 AGENDA ITEM: Authorize Sewer Extension Development Agreement for School District Property at Akron and Bonaire AGENDA SECTION: New Business PREPARED BY: Brian Erickson, Director of Public Works/City Engineer AGENDA NO. 9.b. ATTACHMENTS: Sewer Extension Development Agreement; Location Map APPROVED BY: LJM RECOMMENDED ACTION: Motion Approving a Sewer Extension Development Agreement and Authorizing the Mayor and City Clerk to enter into this Agreement. BACKGROUND On August 13, the District 196 School Board authorized the purchase of a 34 acre parcel (District Parcel) of land on the southwest corner of Bonaire Path and Akron Avenue as a potential future school location. The current owner, JMOR Real Estate Investments, LLC; BMV Real Estate Investments, LLC; and KOGL Family Limited Partnership (DBA Rosemount Farms Joint Ownership Group), is seeking to install a sanitary sewer extension from Akron Avenue across the parcel to western property line. The parcel to the west (West Parcel) is owned by the same group. SUMMARY Staff has been working with the current owners regarding the potential to construct a sanitary sewer extension from the existing sanitary sewer under Akron Avenue in order to serve potential future development to the west. Construction of this extension at this time would allow future development just west of the District Parcel. This extension would serve the West Parcel which is currently shown in the Land Use Plan as Low Density Residential. The attached Development Agreement lays out the conditions for the construction of the sanitary sewer extension and its subsequent acceptance by the City of Rosemount. In general, the proposed layout for this line is along the eastern and southern property lines until it intersects with the western property line of the District parcel. A preliminary layout is shown in Exhibit D of the attached agreement The developer, represented by Minea Associates will undertake the following actions (as acceptable to the City of Rosemount): 1.Engage a surveyor to create a legal description of the centerline as well as stake the centerline for the extension. 2.Plans and specifications will be completed by an engineer under the direction of the City and shall meet the required standards for a public sanitary sewer line. 3.Construct the sanitary sewer line by a general contractor of the developer’s choosing. City inspection will be performed during construction to ensure that the contractor adheres to the approved plans and specifications. 4.Obtain all necessary permits which may include DNR, MPCA, and Dakota County. 2 5. Ensure that a permanent easement is granted by District 196 over the installed sanitary sewer line. 6. Reimburse the City of Rosemount for administrative fees such as design, review, construction inspection and other miscellaneous work. 7. Provide a cash escrow to cover 110% of the estimated engineering and City administration fees. The City of Rosemount will defer sanitary sewer trunk assessment and sewer access charges for the District Parcel. These fees will be paid by the owner of the parcel as appropriate. The developer has also requested an existing credit agreement, tied to the District Parcel be extended to be available for use on either property as desired by the developer. Future Utility Extension: The Western Parcel, if and when it develops, would follow the standard development track as currently used. The planned sanitary sewer extension would have sufficient capacity to serve both a future school and a residential neighborhood to the west. This capacity is also available in the trunk sewer in Akron Avenue. Water for either parcel would be extended from existing water main located in Bonaire Path. Stormwater management would be designed as appropriate for the planned development. RECOMMENDATION The attached agreement has been reviewed and approved by the City Attorney, the developer and District 196. Staff recommends City Council approve the attached agreement and authorize the Mayor and City Clerk to enter into this agreement. ISD 196 Future School Dakota County Sa nitary Manhole Sa nitary Gravity Main August 2 0, 2018 Map Powered by DataLink from WSB & Associates 1 inch = 752 feet± 1 SEWER EXTENSION DEVELOPMENT AGREEMENT This Sewer Extension Development Agreement (“Agreement”) is dated as of ______________, 2018, and is by and between the City of Rosemount, a Minnesota municipal corporation (“City”) and JMOR Real Estate Investments, LLC, BMV Real Estate Investments, LLC and KOGL Family Limited Partnership, (together doing business as Rosemount Farms Joint Ownership Group and collectively referred to as “Developer”) and arises out of the following circumstances: A. Developer currently owns two parcels of land located in the City of Rosemount, Dakota County, Minnesota: one parcel (the “District Parcel”) is described on Exhibit A attached and the other parcel (the “West Parcel”) is described on Exhibit B attached. B. Developer has agreed to sell the District Parcel to Independent School District 96 (“District”) and District intends on using the District Parcel for purposes of a school site or for school district operations. The closing on the sale to the District is contingent upon City and Developer entering into this Agreement. C. On behalf of the District, Developer has agreed to arrange for the extension of the existing municipal sanitary sewer line running along Akron Avenue (County Road 73) westerly under the District Parcel to the westerly boundary line of the District Parcel (“the Extension Section”) with the understanding that the West Parcel will then also have access to the existing municipal sanitary sewer system. D. Under date of September 28, 2009, City and Developer entered into an Easement and Trunk Area Charge Credit Agreement (the “Credit Agreement”), a true and correct copy of which is attached as Exhibit C. Developer desires to have the ability to use the benefits of the Credit Agreement for either the District Parcel or the West Parcel. Now, therefore, in consideration of the foregoing recitals and for other good and valuable consideration, the parties recite, acknowledge and agree as follow: 1. Request for Sanitary Sewer Acceptance. Developer has asked City to accept the Extension Section, to be constructed and paid for by Developer, as part of the existing municipal sanitary sewer system. Developer proposes to construct, at Developer’s sole cost and expense, the Extension Section and then convey the Extension Section to City after its completion. 2. Acceptance and Conditions of Acceptance. City agrees to allow Developer to connect the Extension Section to the existing municipal sanitary sewer system and agrees to accept the completed Extension Section as part of its existing municipal sanitary sewer system 2 on the condition that Developer construct the Extension Section pursuant to the terms of this Agreement. 3. Location. A concept plan showing the approximate location of the Extension Section is attached as Exhibit D. Pursuant to this concept plan, the Extension Section shall commence at a connection point on the west side of Akron Avenue, and run westerly onto the District Parcel to the eastern boundary line of the West Parcel. After Developer has conveyed the District Parcel to District, Developer shall engage the services of a registered surveyor (the “Developer’s Surveyor”) acceptable to City to create a legal description of the centerline of the Extension Section and to stake the location of the centerline of the Extension Section on the District Parcel. Developer shall instruct Developer’s Surveyor to provide City with a duplicate copy of the survey. Developer shall be solely responsible for the costs of Developer’s Surveyor. 4. Construction Plans. After Developer has conveyed the District Parcel to District, City shall engage the services of a registered professional engineer (“City’s Engineer”) to develop plans and specifications for construction of the Extension Section. Developer shall be responsible for the costs of City’s Engineer. The plans and specifications for the Extension Section shall meet the standards for the construction of a public, municipal sanitary sewer line. No construction of the Extension Section shall commence until after plans and specifications for the Extension Section have been completed by City’s Engineer and approved by City. 5. Construction. After the plans and specifications as contemplated above have been approved by City, Developer will engage a general contractor (the “General Contractor”) to construct and install the Extension Section in accordance with the approved plans and specifications and to clean any adjoining public streets and sidewalks of dirt and debris that has resulted from construction work. Prior to construction commencing, Developer must provide City Engineer with a Certificate of Insurance from General Contractor evidencing coverage types and limits acceptable to the City. City’s Engineer shall schedule a pre-construction meeting at a mutually agreeable time and location to review the construction schedule. City will designate an engineering consultant to provide on-site monitoring of the construction work. City’s Engineer, or designees, will inspect the construction to certify that it was done according to the approved plans and specifications. Within thirty (30) days after the completion of the construction of the Extension Section, Developer shall supply City with a complete set of reproducible “as constructed” plans prepared in accordance with City standards. Developer’s Surveyor shall also submit a written notice to City certifying that monuments have been installed following construction. 6. Permits. Developer shall obtain or require the General Contractor and any subcontractors to obtain all necessary permits and other applicable approvals. 7. Dewatering. Due to the variable nature of groundwater levels and storm water flows, it will be Developer’s and General Contractor’s responsibility to satisfy themselves with regard to the elevation of ground water in the area where the Extension Section will be constructed and the level of effort needed to perform dewatering and storm flow routing 3 operations. All dewatering shall be in accordance with all applicable county, state and federal rules and regulations. DNR regulations regarding appropriations permits shall also be strictly followed. 8. License. Developer will obtain a written right-of-entry from the District Parcel owner to allow City, its agents, employees, officers and contractors a license to enter upon the District Parcel to perform all inspections or other necessary work, related to the Extension Section, as deemed appropriate by City. 9. Ownership and Maintenance. Upon completion of construction of the Extension Section and final acceptance by City, which acceptance shall not be unreasonably withheld as long as the construction was done according to the approved plans and specifications, the Extension Section shall become City property without further notice or action and City will thereafter be responsible for maintenance, repair and replacement of the Extension Section. 10. Easement. Developer represents to City that at such time as the Extension Section is accepted by City and becomes City property, Developer will ensure that District grants a permanent utility easement to City, the form of which must be approved by City in its sole discretion. The general form of the easement is attached as Exhibit E. 11. City Administration. Developer shall reimburse City for in-house contract administration fees, which will include costs incurred by the City for the following: engineering fees for design and review of plans and specifications; consultant monitoring of construction; City’s consultation with Developer, General Contractor, and any subcontractors regarding the construction or the project; inspections and acceptance; legal fees related to review and preparation of this Agreement; and any miscellaneous administrative work by City staff related to the project. 12. Cash Escrow. After City is notified that the District Parcel has been transferred to District, and prior to City formally engaging the services of City’s Engineer, City shall, as soon as practical, notify Developer of the estimated total fees of the City’s Engineer under numbered paragraph 4 above and the City contract administration fee under numbered paragraph 11 above. Prior to City formally engaging the services of City’s Engineer and as an express condition of City’s obligations under this Agreement, Developer shall provide City with an initial cash deposit in an amount equal to 110% of the total estimate for the fees of the City’s Engineer and the fee for City contract administration. The cash deposit shall be held by City in escrow (the “Escrow Fund”) to be used to reimburse, or directly pay, for Developer’s financial obligations under numbered paragraphs 4 and 11 above. If at any time after the initial deposit, the amount in the Escrow Fund is less than 110% of the estimated remaining amounts to be paid by Developer under numbered paragraphs 4 and 11 above, Developer shall promptly make an additional cash deposit to City to be held in the Escrow Fund to bring the amount of the Escrow Fund up to 110% of the estimated remaining amounts to be paid by Developer under numbered paragraphs 4 and 11 above. No interest shall be paid or credited to Developer on funds held by City in the Escrow Fund. City shall be entitled, from time to time, to withdraw amounts from the Escrow 4 Fund to pay fees of the City’s Engineer and to pay the fee for City Administration as set forth in numbered paragraph 11 above. City shall give Developer notice of each withdrawal from the Escrow Fund together with details and invoices as to the fees paid by the withdrawal. Following acceptance of the Extension Section and after paying all fees of the City’s Engineer and the fees for City Administration, City will return to Developer any unused amounts in the Escrow Fund. In the event the amount in the Escrow Fund is not sufficient to pay all of Developer’s obligations under numbered paragraphs 4 and 11 above and in the event Developer does not pay the deficiency to City upon demand, City may, at its option, assess the West Parcel in the manner provided by Minnesota Statutes, Chapter 429, and the Developer hereby consents to the levy of such special assessment without notice or hearing and waives its rights to appeal such assessment pursuant to Minnesota Statutes, Section 429.081. 13. Trunk Area Assessments and Access Charges. Sanitary sewer trunk area assessments and sanitary sewer access charges (collectively the “Charges”) will not be assessed or collected as a condition to the City’s acceptance of the Extension Section as contemplated by this Agreement, but shall be collected prior to the time improvements on either the District Parcel or the West Parcel are connected to City’s municipal sanitary sewer system, as extended by the Extension Section. The amount of the Charges to be collected will be based on the applicable fee schedule at the time of connection. The Charges for the District Parcel must be paid by the owner of the District Parcel prior to City’s issuance of a building permit for construction of any improvements on the District Parcel that will be connected to City’s municipal sanitary sewer system, as extended by the Extension Section. The Charges for the West Parcel shall be paid as established in the City’s fee schedule during future platting or subdivision of this parcel and as established in a future development agreement. No Charges shall be payable with respect to either the District Parcel or the West Parcel at the time the Extension Section is constructed or accepted by City. Stormwater trunk area assessments and access charges and water trunk area assessments and access charges will not be assessed as a condition to the City’s acceptance of the Extension Section as contemplated in this Agreement, but will be assessed or collected as provided in the applicable City fee schedule. 14. Availability. City agrees that private sanitary sewer connections may be made to the Extension Section to provide service to developments upon both the District Parcel and the West Parcel. Such connections will be subject to the usual and customary requirements of City which may include, without limitation, payment of SAC, WAC and/or STAC charges as set forth above. 15. Warranties. Developer will obtain an assignable warranty from General Contractor against poor material and faulty workmanship. The form of the warranty must be approved by the City Attorney and shall be for a period of at least two years following acceptance of the Extension Section by City. Developer shall assign the warranty to City as a condition of City’s acceptance of the Extension Section. 5 16. Credit Agreement. In order to accomplish the desire of Developer to be able to use the benefits of the Credit Agreement for either the District Parcel, which is registered property, or for the West Parcel, which is abstract property, City and Developer agree to amend the Credit Agreement by signing the Amendment to Easement and Trunk Area Charge Credit Agreement form attached as Exhibit F. It is understood and agreed that Developer shall have the right to record, at Developer’s sole cost, the Exhibit F document with the Registrar of Titles of Dakota County, Minnesota. 17. This Agreement, except for numbered paragraph 16, shall terminate and be of no further force or effect in the event the District Parcel is not sold and transferred to District by July 1, 2019. However, the provisions of numbered paragraph 16 above, relating to the Credit Agreement, shall survive termination of this Agreement. 18. Indemnification. Developer shall defend, indemnify, and hold the City and its officers, employees, and agents harmless from claims made by itself and third parties for damages sustained or costs incurred resulting from or arising out of the construction of the Extension Section or Developer’s performance or failure to perform any of its obligations under this Agreement. Developer shall indemnify City and its officers and employees for all costs, damages or expenses which City may pay or incur in consequences of such claims, including attorney’s fees. 19. Miscellaneous. A. Third parties shall have no recourse against City under this Agreement. B. If any portion, section, subsection, sentence, clause, paragraph or phase of this Agreement is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Agreement. C. The action or inaction of City shall not constitute a waiver or amendment to the provisions of this Agreement. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. City’s failure to promptly take legal action to enforce this Agreement shall not be a waiver or release. D. This Agreement shall run with the land and may be recorded against the title to the property. Developer shall take such steps, including execution of amendments to this Agreement, as are necessary to effect the recording hereof. After Developer has completed the work required of it under this Agreement, at Developer’s request, City will execute and deliver to Developer a recordable document to evidence satisfaction of Developer’s obligations and acceptance of the Extension Section as part of City’s public, municipal, sanitary sewer system. 6 E. Each right, power or remedy herein conferred upon City is cumulative and in addition to every other right, power or remedy, express or implied, now or hereafter arising, available to City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by City and shall not be a waiver of the right to exercise at any time thereafter any other right, power or remedy. F. The Developer may not assign this Agreement without the written permission of the City Council. 20. Notices. Required notices to Developer shall be in writing, and shall be either hand delivered to Developer, its employees or agents, or mailed to Developer by registered mail at the following address: Minea Associates Attn: Bruce Minea 2217 South Street Duluth, Minnesota 55812 Notices to City shall be in writing and shall be either hand delivered to the City Administrator, or mailed to City by registered mail in care of the City Administrator at the following address: City Administrator Rosemount City Hall 2875 145th Street West Rosemount, Minnesota 55068 IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first above written. [The remainder of this page has been intentionally left blank. Signature pages follow.] 7 CITY OF ROSEMOUNT BY: William H. Droste, Mayor BY: Erin Fasbender, City Clerk STATE OF MINNESOTA ) ) SS COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this day of _____________________, 2018, by William H. Droste, Mayor, and Erin Fasbender, City Clerk, of the City of Rosemount, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. Notary Public 8 JMOR REAL ESTATE INVESTMENTS, LLC By: Jill Minea O’Rourke, its Chief Manager____________________________________ BVM REAL ESTATE INVESTMENTS, LLC By: Bruce V. Minea, its Chief Manager KOGL FAMILY LIMITED PARTNERSHIP By: James Kogl, its General Partner And by: Jeanne M. Kogl, its General Partner 9 STATE OF MINNESOTA ) )ss. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ___ day of ____________, 2018, by Jill Minea O’Rourke, Chief Manager of JMOR Real Estate Investments, LLC, a Minnesota limited liability company, on behalf of the company. Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ___ day of ____________, 2018, by Bruce V. Minea, Chief Manager of BVM Investments, LLC, a Minnesota limited liability company, on behalf of the company. Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ___ day of ____________, 2018, by James Kogl and Jeanne M. Kogl, the general partners of Kogl Family Limited Partnership, a Minnesota limited partnership, on behalf of the partnership. Notary Public Drafted By: Johnson, Killen & Seiler 230 West Superior Street, Suite 800 Duluth, MN 55802