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EXECUTIVE SUMMARY
City Council Regular Meeting: August 18, 2020
AGENDA ITEM: Approve Interim Utility Connection
Agreement for Caramore Crossing
AGENDA SECTION:
Consent
PREPARED BY: Stephanie Smith, PE, Assistant City
Engineer AGENDA NO. 6.h.
ATTACHMENTS: Agreement APPROVED BY: LJM
RECOMMENDED ACTION: Motion to Approve Interim Utility Connection Agreement for
Caramore Crossing development
BACKGROUND
On July 16, 2019 the Rosemount City Council approved the final plat and subdivision agreement for
Caramore Crossing. The developer has recently closed on the property and intends to enter into the
subdivision agreement within the next few weeks.
Caramore Crossing includes a connection to the utilities on Akron Avenue (CR 73), which is currently
under construction by Dakota County. The County’s project is at a point in their schedule, where the
utility connection must be made presently to avoid significant delays to both the Akron Avenue and
Caramore Crossing construction projects. Due to this timeline concern, the attached interim utility
connection agreement is proposed to allow the utility connection prior to completion of the subdivision
agreement typically required by the City for similar projects.
The agreement has been drafted by the City Attorney and is attached to this memo.
RECOMMENDATION
Staff recommends City Council approve the attached development agreement and authorize the Mayor
and City Clerk to enter into this agreement.
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INTERIM UTILITY CONNECTION AGREEMENT
Caramore Crossing
THIS AGREEMENT (the “Agreement”) dated this ___ day of ________________________,
2020, by and between the city of Rosemount, a Minnesota municipal corporation, (the "City"), and
Forestar (USA) Real Estate Group, Inc., a Delaware corporation (the "Developer").
Recitals
WHEREAS, Developer owns that certain real property located in the city of Rosemount, Dakota
County, Minnesota and as more particularly described on the attached Exhibit A (the “Property”);
WHEREAS, Developer has asked the City to approve the subdivision of the Property containing
approximately 75 acres and creating 82 single family residential lots;
WHEREAS, the City has subsequently approved Developers request and the final plat to be known
as Caramore Crossing subject to certain conditions (the “Plat”);
WHEREAS, the Property is located within the city of Rosemount and needs to be connected to
certain public utilities within the nearby Akron Ave right-of-way;
WHEREAS, the parties acknowledge that due to a Dakota County road project the Developer must
act quickly to make the necessary utility connections to avoid significant delays; and
WHEREAS, both the Developer and the City acknowledge there is some benefit to both parties for
the connection to the municipal utilities prior to the parties entering into that certain Subdivision Agreement
typically required by the City for similar projects and therefore the City hereby agrees to allow Developer to
begin limited work early in order to timely make the necessary connection to city utilities upon execution of
this Agreement.
Terms of the Agreement
NOW, THEREFORE, in consideration of the mutual premises set forth, it is agreed between the
parties as follows:
1. Recitals. The parties agree that all of the recitals set forth above are true and accurate and further
agree that each shall be incorporated herein as material terms.
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2. Utility Connection. On or before ________________ __, 2020, Developer shall make connection
to the City’s sewer and water systems for the Property located within the Akron Ave right-of-way in
accordance with the City’s specifications and requirements. The City will inspect Developer’s work in
accordance with the City’s policies and standard practices. Developer shall be solely responsible for all
costs of extension, connection, inspection, and associated costs related to completion of such connections.
Nothing herein shall be interpreted to allow Developer to forego any Dakota County specific requirements.
Prior to making the connection of any and all utilities contemplated herein, Developer shall comply with all
Dakota County requirements including obtaining any permits that may be required.
3. Installation of Connection Improvements by Developer. The Developer shall install or cause
to be installed and pay for only those initial improvements necessary and required in order to effectively
connect the Property with the public water and sanitary sewer utilities located within and nearby the
Akron right-of-way, hereinafter referred to as the “Connection Improvements”. The Connection
Improvements are as outlined in Exhibit B.
4. Security for Utility Connection. To guarantee compliance with the terms of this Agreement,
payment of the Developers costs estimated herein, the Developer shall furnish the City with a cash deposit
(“Security”) in the amount of Four Hundred Twenty-Six Thousand, Seven Hundred Seventy-Five Dollars
($426,775). The amount of the security was calculated as follows:
Cost 125%
Sanitary Sewer Improvements $ 277,549 $ 346,936
Watermain Improvements $ 63,871 $ 79,839
Total $ 341,420 $ 426,775
In the event of a default under this Agreement by the Developer, the City shall furnish the Developer with
written notice by certified mail of Developers default(s) under the terms of this Agreement. If the
Developer does not remove said default(s) within two (2) weeks of receiving notice, the City may retain
that portion of the Security needed to remedy the default and take such steps as it deems necessary to
remedy the default.
5. License. The Developer hereby grants the City, its agents, employees, officers and contractors a
license to enter the Property to perform all work and inspections deemed appropriate by the City. Such
license shall terminate upon acceptance by the City of the Connection Improvements or the termination
of this Agreement as laid out in Section 8 herein.
6. Warranty of Connection Improvements. The Developer warrants all work required to be
performed by it herein against poor material and faulty workmanship for a period of two (2) years after
its completion and acceptance by the City.
7. Responsibility for Costs.
A. Except as otherwise specified herein, the Developer shall pay all costs incurred by it or the
City in conjunction with the connection of the Property to the public utilities within the Akron
Ave right-of-way including, but not limited to, Soil and Water Conservation District charges,
legal, planning, engineering, review and inspection expenses incurred in connection with
approval and acceptance of the subdivision and the plat, the preparation of this Agreement and
any amendments hereto, and all costs and expenses incurred by the City in monitoring and
inspecting the connection of the Property to the public utilities noted herein.
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B. The Developer shall reimburse the City for costs incurred in the preparation and enforcement
of this Agreement, including engineering and attorneys’ fees. The City shall provide invoices,
in reasonable detail, as to any such fees and Developer shall be responsible for payment of said
invoices within thirty (30) business days of receipt.
C. The Developer shall pay in full all bills submitted to it by the City for obligations incurred
under this Agreement within thirty (30) business days after receipt. If the bills are not paid on
time, the City may halt utility connection work contemplated herein. Bills not paid within
thirty (30) days shall accrue interest at the rate of nine percent (9%) per year.
8. Future Agreement & Termination. The parties acknowledge and agree that this Agreement is
intended to be an interim agreement entered into in order to allow Developer to make the proper utility
connections and install the Connection Improvements in a timely manner in conjunction with the current
Dakota County road project over Akron Ave. The parties thereby agree to enter into that certain
Subdivision Agreement outlining the obligations of the parties for the overall development of the Property
as proposed on the Plat. The parties further agree that upon the successful execution and recording of the
Subdivision Agreement this Agreement shall expire by its own terms and be of no further force and effect.
In the event, a subdivision agreement is never executed and recorded, Developer agrees to be bound by
the terms of this Agreement. Nothing herein shall be interpreted to allow Developer to begin construction
or otherwise develop the Property in accordance with the Plat prior to entering into a subdivision
agreement with the City. Developer instead may only make the utility connections to the Property and the
Connection Improvements as contemplated herein.
9. Indemnification. The Developer shall hold the City and its officers, agents and employees
harmless from claims made by itself and third parties for damages sustained or costs incurred resulting
from the performance of the obligations contained herein, except for any costs or expenses arising from
the intentional acts or gross negligence of the City, it’s agents, employees or contractors. The Developer
shall indemnify the City and its officers, agents and employees for all costs, damages or expenses that the
City may pay or incur in consequence of such claims, including attorney’s fees.
10. Insurance. The Developer agrees to take out and maintain or cause to be taken out and
maintained until six months after the City has accepted the Connection Improvements contained herein,
public liability and property damage insurance covering personal injury, including death, and claims for
property damage which may arise out of Developer’s work or the work of its contractors or subcontractors.
Liability limits shall not be less than $500,000.00 when the claim is one for death by wrongful act or
omission or for any other claim and $1,500,000.00 for any number of claims arising out of a single
occurrence, and twice said limits when the claim arises out of the release or threatened release of a
hazardous substance. The City shall be named as an additional insured on the policy. The certificate of
insurance shall provide that the City must be given the same advance written notice of the cancellation of
the insurance as is afforded to the Developer.
11. Upfront Fees. The Developer agrees to pay in full the Security prior to, or at the time of
execution of this agreement by the City.
12. Developer’s Default. In the event of default by the Developer as to any of the work to be
performed by it hereunder, the City may, at its option, perform the work and the Developer shall promptly
reimburse the City for any expense incurred by the City, provided the Developer is first given notice of
the work in default, not less than 48 hours in advance. This Agreement is a license for the City to act, and
it shall not be necessary for the City to seek a court order for permission to enter the land. When the City
does any such work, the City may, in addition to its other remedies, utilize the Security, or levy the cost
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in whole or in part as a special assessment against the Property. Developer waives its rights to notice of
hearing and hearing on such assessments and its right to appeal such assessments pursuant to Minnesota
Statutes, Section 429.081.
13. Notices. Required notices to the Developer shall be in writing, and shall be either hand delivered
to the Developer, its employees or agents, or mailed to the Developer by registered mail at the following
address:
Thomas H. Burleson, Senior Vice President
Forestar (USA) Real Estate Group, Inc.
2221 E. Lamar Boulevard, Suite 79
Arlington, TX 76006
817-769-1860
Notices to the City shall be in writing and shall be either hand delivered to the City Administrator, or
mailed to the 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
14. Miscellaneous.
A. Third parties shall have no recourse against the City under this Agreement.
C. Breach of the terms of this Agreement by the Developer shall be grounds for denial of building
permits, including lots sold to third parties.
D. 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.
F. The action or inaction of the 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. The City’s failure to promptly
take legal action to enforce this Agreement shall not be a waiver or release.
G. This Agreement shall run with the land and may be recorded against the title to the Property.
The Developer shall take such steps, including execution of amendments to this Agreement,
as are necessary to effect the recording hereof. After the Developer has completed the work
required of it under this Agreement, at the Developer’s request, the City will execute and
deliver to the Developer a release. Notwithstanding the foregoing, upon the recoding of the
Subdivision Agreement as contemplated in Section __ herein this Agreement shall be of no
further force and affect and shall terminate without further actions by the parties.
H. Each right, power or remedy herein conferred upon the City is cumulative and in addition to
every other right, power or remedy, express or implied, now or hereafter arising, available to
the 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
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often and in such order as may be deemed expedient by the City and shall not be a waiver of
the right to exercise at any time thereafter any other right, power or remedy.
I. The Developer may not assign this Agreement without the written permission of the City
Council.
J. The Developer acknowledges that the City may issue additional requirements outside of the
2015 General Specifications and Standard Detail Plates for Street and Utility Construction or
the 2008 Engineering Guidelines as the City is in the process of updating these documents.
The review process may require additional time and expense due to this process, which shall
be the Developer’s responsibility. The Developer shall not be billed for the time required for
the City to update and approve their revisions to the 2015 General Specifications and Standard
Details Plates for Street and Utility Construction or the 2008 Engineering Guidelines.
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IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first above
written.
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 _____________________,
2020, 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
FORESTAR (USA) REAL ESTATE GROUP, INC.
BY:
Its
STATE OF MINNESOTA )
) SS
COUNTY OF _____________)
The foregoing instrument was acknowledged before me this ____ day of ______________________,
2020 by ____________________________________, its ____________________________________,
of Forestar (USA) Real Estate Group, Inc. a Delaware corporation, on behalf of said corporation.
Notary Public
Drafted By:
KENNEDY & GRAVEN, CHARTERED
470 US Bank Plaza,
200 South Sixth Street
Minneapolis, MN 55402
A-1
EXHIBIT A
Legal Description of the Property
Outlot B, MCMENOMY ADDITION, according to the recorded plat thereof, Dakota County, Minnesota.
B-1
EXHIBIT B
Connection Improvements