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Home My WebLink About2014-12-03 PACKET 04.G. REQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA MEETING ITEM # DATE 12/3/14 . PREPARED BY: Community Development Jennifer Levitt ORIGINATING DEPARTMENT STAFF AUTHOR ************************��*****************��*** COUNCIL ACTION REQUEST Consider approving the Amended Assessment Appeal Waiver Agreement for Lots 24 and 25, Block 3, Homestead at Highland Hills Addition, extending the payment deadline for water/sewer system improvements until November 15, 201�, STAFF REC011IIMENDATION Approve the Amended Assessment Appeal Agreement. BUDGET IMPLICATION $N/A $N/A N/A BUDGETED AMOUNT ACTUAL AMOUNT FUNDING SOURCE ADVISORY COMMISSION ACTION DATE REVIEWED APPROVED DENIED ❑ PLANNING ❑ ❑ ❑ ❑ PUBLIC SAFETY ❑ ❑ ❑ ❑ PUBLIC WORKS ❑ ❑ ❑ ❑ PARKS AND RECREATION ❑ ❑ ❑ ❑ HUMAN SERVICES/RIGHTS ❑ ❑ ❑ ❑ ECONOMIC DEV. AUTHORITY ❑ ❑ ❑ ❑ ❑ ❑ ❑ SUPPORTING DOCUMENTS � MEMO/LETTER: Memo from Jennifer Levitt dated 11/18/14 ❑ RESOLUTION: ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: � OTHER: Amended Assessment Appeal Waiver Agreement; Proposed Utility Service Improvements diagram; Assessment Totals ADMINISTRATOR'S COMMENTS � i 1 ��, � ��/ a�, --- City Administrator Date �***�**************�*********�****************** COUNCIL ACTION TAKEN: ❑ APPROVED ❑ DENIED ❑ OTHER Cottage Grove � Pride and PSOSPerity Meet To: Honorable Mayor and City Council Ryan Schroeder, City Administrator From: Jennifer M. Levitt, P.E., City Engineer/Community Development Director Date: November 18, 2014 Re: Amended Assessment Appeal Waiver Agreement for Lots 24 and 25, Block 3, Homestead at Highland Hills Addition Backqround Thomas and Nicolle Hren, property owners of the properties legally described as Lot 24 and 25, Block 3, Homestead at Highland Hills Addition, petitioned for the construction of certain public improvements to the properties to enable connection to the Cottage Grove Sewer/Water Sys- tem. At the City Council meeting on October 2, 2013, an Assessment Appeal Waiver Agreement was approved where the owners agreed to pay the City by December 31, 2014, for the cost of accessing the system. If they did not pay by that date, they agreed to the levy of the Assess- ment Appeal Waiver Amount against their properties with interest accruing at the assessment interest rate. The City received quotes for the installation of the sewer/water system improvements on March 18, 2014, with the low quote being provided by Hydrocon, Inc. This quote was approved by the owners on July 29, 2014, with work scheduled to take place at the end of September or early October of 2014. Discussion As part of this project, the water/sewer service lines are to be installed by a directional drilling method. Due to the conditions in the construction industry in 2014, the Contractor has had a dif- ficult time scheduling a directional drilling company to complete the service line installation. This scheduling difficulty has been common during fall of 2014 and is a result of the current workload in the construction industry being greater than what the industry can readily support. This issue has also been evident when considering inflated bid prices that have been experienced throughout the Twin Cities metro area this fall. Currently it is anticipated that a directional drilling contractor will be onsite after Thanksgiving to complete the service line installation. However, due to the delayed completion of this work, it is proposed that the payment deadline for the owners be extended until November 15, 2015. Recommendation It is recommended that the City Council approve the Amended Assessment Appeal Waiver Agreement for Lots 24 and 25, Block 3, Homestead at Highland Hills Addition, extending the payment deadline for water/sewer system improvements until November 15, 2015. CITY OF COTTAGE GROVE AMENDED ASSESSMENT APPEAL WAIVER AGREEMENT FOR LOTS 24 AND 25, BLOCK 3, HOMESTEAD AT HIGHLAND HILLS IMPROVEMENT PROJECT THIS AGREEMENT FOR AN ASSESSMENT APPEAL WAIVER ("Agreement") is entered into and effective as of the day of , 2014 ("Agreement Date"), by and between the City of Cottage Grove, a Minnesota municipal corporation ("City"), and Thomas James Hren and Nicolle Anne Hren, a mai7ied couple ("Owners"). WITNESSETH: WHEREAS, the Owners are the fee simple owners of property legally described as Lots 24 and 25, Blocic 3, Homestead at Highland Hills, Cottage Grove, Washington County, Minnesota that will be benefited by the Project; and WHEREAS, the Owners will cause the construction, at their sole expense, of cer-tain private improvements to their Property to enable the Property to connect to the Cottage Grove Sewer/Water System as depicted on the attached Exhibit "A" ("Sewer/Water System"); and WHEREAS, the Owners will pay the City for the cost of accessing the Sewer/Water System as described on the attached E�ibit "B" by November 15, 2015; and WHEREAS, if the Owners fail to pay by the date listed above, the Owners are willing to agree to the levy of the Assessment Waiver Amount against the Property for the Assessment Term with interest accrual at the Assessment Interest Rate to pay fs�r the cost of accessing the Sewer/Water System; and WHEREAS, the Project will result in a connection from the Property to the Sewer/Water System, but the City is willing to facilitate the Project as desired by the Owners provided that the Project is funded entirely by the Owners; and -1- WI�REAS, the Owners are willing to waive their assessment appeal rights up to the Assessment Waiver Amount which constitutes an estimated benefit pursuant to Minnesota Statutes, Chapter 429 in the manner authorized by Minnesota Statutes § 462.3531 in return for the City's efforts to facilitate the collection of funding for the Project. NOW, THEREFORE, in consideration of the mutual promises and covenants of each to the other contained in this Agreement and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do covenant and agree as follows: ARTICLE I THE AGREEMENT Section 1.01 Purpose. The puipose of this Agreement is to memorialize the covenants and agreements between the Owners and the City with regard to the Property and the Project including the Owners' waiver of assessment appeal rights up to the Assessment Waiver Amount which constitutes an estimated benefit ptusuant to Minnesota Statutes, Chapter 429 in the manner authorized by Minnesota Statutes § 462.3531 in retui�n for the City's efforts to facilitate the collection of funding for the Project. Section 1.02 Term. The term of this Agreement shall commence on the Agreement Date and shall terminate upon the expiration of the Assessment Tei7n (or upon prepayment of the levied assessment). ARTICLE II DEFINITIONS Section 2.01 Definitions. The following are terms used in this Agreement. Their meanings as used in this Agreement shall be expressly indicated below, unless the context of this Agreement requires otherwise: (a) Ag�eement: This agreement to memorialize the covenants and agreements between the Owners and the City with regard to the Property and the Project including the assessment appeal waiver provided herein pursuant to Minnesota Statutes, Chapter 429 in the manner authorized by Minnesota Statutes § 462.3531. (b) A�eement Date: The date written in the first paragraph of the Agreement. (c) Assessment Interest Rate: The special assessment levied against the Property shall accrue interest at a rate of seven percent (7%) per year for the Assessment Term. (d) Assessment Term: The term of the special assessment levied against the Property shall be five (5) years. -2- (e) Assessment Waiver Amount: The sewer/water connection charge imposed by the City for the Project in the amount of forty-two thousand, tluee hundred five dollars ($42,305) is to be assessed by Cottage Grove against the Property if the Owners fail to pay the connection charge by November 15, 2015. The costs related to the improvement are described in Exhibit "B." The Assessment Amount is commensurate with the estimated special benefit of the Project to the Property. ( fl C�: The City of Cottage Grove, a Minnesota municipal corporation. (g) Project: The sewer/water connection of the Property to the Cottage Grove Sewer/Water System. (h) Owners: Thomas James Hren and Nicolle Anne Hren, a married couple. (i) Pro ei : The property is legally described as Lots 24 and 25, Block 3, Homestead at Highland Hills, Cottage Grove, MN 55016 (Washington County Property ID #06.027.21.14.0063. ARTICLE III COVENANTS AND AGREEMENTS Section 3.01 Covenants and A�reements of the Owner. The Owners covenant and agree with the City that: (a) Assessment A�peal Waiver: Owner hereby authorizes the City to certify to the Washington County Auditor/Property Tax Assessor a special assessment against the Property up to the Assessment Waiver Amount for Project. The Owners hereby waive all rights to assessment notices, hearings and appeals, and all other rights pursuant to Minn. Stat. § 429.061, § 429.071 and § 429.081 for the special assessment against the Property up to the Assessment Waiver Amount. The Owners hereby waive any and all procedural and substantive objections to the special assessment up to the Assessment Waiver Amount against the Property, including, but not limited to, notice and hearing requirements and any claim that any or all of the Assessment Waiver Amount against the Property exceeds the benefit to the Property for the Project. The Owners acknowledge and agree that the benefit of the Project to the Property does in fact equal or exceed the Assessment Waiver Amount. The Owners also acicnowledge and agree that the Properry receives a special benefit equal to or exceeding the Assessment Waiver Amount. Fui�thermore, the Owners acknowledge and agree that the Project costs may not be equally spread against all benefited property and the Project extends beyond the corporate limits of the City as desired by the Owner. The City and the Owners acknowledge and agree that the Owners' waiver of assessment appeal rights pursuant to Minnesota Statutes, Chapter 429, is capped at -3- the Assessment Waiver Amount by operation of Minn. Stat. § 462.3531. The City and the Owners acknowledge and agree that the Owners may appeal any special assessment above the Assessment Waiver Amount. (b) Owners' Covenant Not to Sue the Citv: Owners hereby covenant with the City not to appeal or sue the City for a court to set aside, reduce, repeal, or invalidate the levied assessment, or for other relief fiom the payment of the City's levy of a special assessment up to the Assessment Waiver Amount against the Property. (c) Owners' Covenant that Owners are the Pro�erty Fee Owners: Owners hereby covenant and wai7ant with the City that Owners are seized in fee of the Property and have good right to enter into this Agreement with the City. Section 3.02 Covenants and Agreements of the City. The City covenants and agrees with the Owners that: (a) Assessment Waiver Amount: The City agrees that the City will certify/levy a special assessment against the Property only up to the Assessment Waiver Amount for the Project pursuant to this Agreement. (b) City Recordin� of this A�teement: The City will record this Agreement against the Property. (c) Prepayment of Assessment: The City agrees that the Owners may prepay some or all of the City's assessment levy against the Proper-ty for the Project with no penalty and only with interest accival pursuant to Minn. Stat. § 429.061. ARTICLE IV DEFAULT Section 4.01 Default. If a party to this Agreement materially defaults in the due and timely perfoi7nance of any of its covenants, or agreements hereunder, the other party(s) may give notice of default of this Agreement. The notice shall specify with particularity the default or defaults on which the notice is based. The notice shall specify a ten (10) day cure period within which the specified default or defaults must be cured. If the specified defaults are not cured within the cure period, the other party(s) may pursue all remedies and sanctions available at law and in equity, including specific performance. Section 4.02 Attorneys' Fees, Costs and Expenses. The Owners agree to pay the City the amount of the City's assessment levy up to the Assessment Waiver Amount with accrued interest together with the City's attoineys' fees, costs and expenses to defend the special assessment levy by the City pursuant to this Agreement. The Owners acknowledge and agree that the Owners would be unjustly enriched if the City's assessment levy pursuant to this Agreement was set aside, reduced, repealed or invalidated by a coui�t with jurisdiction over the Property since the Owners requested the Project and this assessment financing for the Project. The Owners agree that the court with -4- jurisdiction over the Property shall award the City the assessment levy up to the Assessment Waiver Amount with accrued interest together with the City's attorneys' fees, costs and expenses for breach of the Owners' covenant not to appeal or sue the City pursuant to Ai�ticle III, Section 3.01(b). ARTICLE V GENERAL PROVISIONS Section 5.01 Notices. All notices, requests, demands or other communications required or pei7nitted by this Agreement shall be in writing and delivery shall be deemed to be sufficient if delivered personally or by registered or certified mail, retui� receipt accepted, postage prepaid, addressed as follows: If to the City: City of Cottage Grove Attention: City Administrator 12800 Ravine Parkway South Cottage Grove, MN 55016 If to the Owners: Thomas and Nicolle Hren 7398 Burr Oak Avenue South Cottage Grove, MN 55016 Section 5.02 Non-Assi�nability. Neither the City nor the Owners shall assign any interest in this Agreement nor shall either party transfer any interest in the same without the prior written consent of the other party. Section 5.03 Bindin� Effect. This Agreement and the terms, conditions and covenants contained herein and the transaction contemplated hereunder shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, personal representatives, and pei7nitted assigns. This Agreeinent shali further be binding on subsequent purchasers of the Propei and shall iun with the Property herein described. Section 5.04 Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 5.05 Amendments, Chan�es and Modifications. This Agreement may be amended or any of its terms modified or changed only by a written amendment authorized and executed by the City and the Owners. Section 5.06 Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. -5- Section 5.07 Entire A�reement. This Agreement shall constitute the entire agreement between the parties and shall supersede all prior oral or written negotiations. Section 5.08 Notice To Buvers. The Owners agree to notify and provide any buyer of the Property with an executed copy of this Agreement if the Owners sell any interest in the Property following the execution of this Agreement by both the Owners and the City, but before the recording of this Agreement with Washington County Recorder and/or Registrar of Titles. IN WITNESS WHEREOF, the City and the Owners have caused this Agreement to be executed by their duly authorized representatives. [remainder of page intentionally blank] -6- CITY OF COTTAGE GROVE B y : Myron Bailey, Mayor By: Caron Stranslcy, City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTON ) On this day of , 2014, before me a Notary Public within and for said County, personally appeared Myron Bailey and Caron Stranslcy to me personally known, who being each by me duly sworn, each did say that they are respectively the Mayor and the City Clerlc of the City of Cottage Grove, the Minnesota municipal corporation named in the foregoing instrument, and that it was signed on behalf of said municipal cozporation by authority of its City Council and said Mayor and City Clerk acknowledged said instrument to be the fiee act and deed of said municipal coiporation. Notary Public -7- OWNERS Thomas James Hren Nicolle Anne Hren STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTON ) On this day of , 2014, before me a Notaiy Public within and for said County, personally appeared Thomas James Hren and Nicolle Anne Hren, a married couple, to me personally known to be the persons described in and who executed the foregoing instrument and acicnowledged that they executed the same as their free act and deed. Notary Public This instrument drafted by: After recording, please retmn to: Korine L. Land Korine L. Land Cottage Grove City Attorney Cottage Grove Ciry Attorney LeVander, Gillen & Miller, P.A. LeVander, Gillen & Miller, P.A. 633 South Concord Street, Suite 400 633 South Concord Street, Suite 400 South St. Paul, Minnesota 55075 South St. Paul, Minnesota 55075 -8- EXHIBIT A I �- I »� » \ 9> I � � � I SERVICE NOTES: ' � O P r e s e r v e 1. ALL S4NITARY SEWER SERVIC6 SHALL BE 4" '\ � P a s s _ \ I HDPE DR-11 UNLESS OTHERWISE NOTED. / V I 2. ALL WATER SERVICES PLACED WITNIN THE ��_/ y RIGHT OF WAY SHALL BE 1" COPPQt WITH 1" � I Q1R8 SiOP 8� BOX UNLESS OTHERWISE NOTED. � I > I , IQ I I I W I I�I I � J__. I ( I ( DC. Mi - 6 (\ v i i I / � I! � v INSTALL I I I vl 210' - DIRECTIONAL DRILLED 4 pFAN DUT v 4" HDPE DR-11 i I I I ppNNECTTO DC. SAN� SEWE]t _ � I ELEV. = 641.75 � IX.MH-5 I HO SE I � ' �a � -°—°' > � RIM = 862.86 \ .�8 —°m° ' � IN1/ = 841�25 N �- J I� , �''� � v ,� ��) o ao ao � r� cur�s sroP I � & BOX IX. MH - 4 Horizontal Scole In Feet � ' RIGHT OF WAY 165' - DIRECTipNAL DRILLED o � 1° PLASTIC WATER SERVICE � v I � I � 55' -1" TYPE K COPPER v` 65th St. So. _____ � � ��___ _ — — — — — — CONNECT TO IX. 6" WATER IX. MH -1 '� MAIN WIfH 1" CORPORATiON < < —i I I 1 I I 1 I 1 I I I I i I 1 I— — — — — _ — — PATCHBLTUMINOUSAREA �----- ------- \ — ��_.--. I , PROPOSED UTILITY SERVICE IMPROVEMENTS � _ ��-,� � � CITY OF COTTAGE GROVE HREN PROPERTY 2335 Highv.vy36 W 5t. Paut MN 55113 R:\d]EM\MUMQPAL\COTTAGE_(dtOVE_CI_MM�M�EtlAlIS5UE56PRWECfS\2013\HYENfl20�Y-WWPItC�lvEPASS�CI�FiCiJIa DATE: APRIL 2014 v,w.vstontec.com EXHIBIT B SANITARY SEWER AND WATER SERVICE TO THE HREN PROPERTY ITEM TOTAL HYDROCON QUOTE FOR INSTALLATION OF SERVICES $ 29,790.00 ENGINEERING, LEGA�, ADMINISTRATION, INSPECTION, TESTING (20%) $ 5,958.00 WATER CONNECTION FEE (WEST DRAW) $ 1,275.00 SANITARY CONNECTION FEE (WEST DRAW) $ 386.00 WATER AREA CHARGE (WEST DRAW AREA 1) $ 3,208.00 SANITARYAREA CHARGE (WEST DRAW AREA 1) $ 1,688.00 TOTAL $ 42,305.00