HomeMy WebLinkAbout4.a. Approval of the Sale of Property to Rosemount Senior Living Associates I, LLC 4 ROSE_MOUNT EXECUTIVE SUMMARY
PORT AUTHORITY
Port Authority Meeting Date: April 15, 2014
AGENDA ITEM: Approval of the Sale of Property to AGENDA SECTION:
Rosemount Senior Living Associates I, Public Hearing
LLC
PREPARED BY: Kim Lindquist, Deputy Director AGENDA NO. 4.a.
ATTACHMENTS: Resolution; Contract for Private
Development for The Rosemount at APPROVED BY:
Steeple Center
RECOMMENDED ACTION: Motion to approve the Resolution approving the sale of
property to the Rosemount Senior Living Associates I, LLC.
ISSUE
Rosemount Senior Living Associates I, LLC,partnering with the City, proposes to construct a 90-unit senior
housing project in Rosemount. The City has been working for several years to attract a senior housing
provider on the excess Steeple Center property owned by the City and the Port Authority. The current
developer has moved the project forward and received Planning approvals for development of the site. The
site will include the 90 unit assisted living project and a 10,000 square foot public activity center.
In March, the City Council and Port Authority approved the Contract for private development for The
Rosemount at Steeple Center. Similar to action taken last meeting, the Port Authority is required to hold a
public hearing to determine whether the sale of the property is in the best interests of the community and its
residents and furthers the plans and goals of the Port. A public hearing notice was published as required. A
resolution of approval is provided for the Port Authority's use after opening of the public hearing and
discussion about the impact of the sale and ultimate development of the Rosemount Senior Living
Associates project upon the community.
Staff believes sale is consistent with the goals of the Port Authority to redevelop in the Downtown and also
bring new residential units into the Downtown area. The project reflects the goals of high quality design,
exterior materials and architecture. A stated goal of the Port Authority is attraction of new commercial into
the Downtown. Construction of senior housing that includes independent living, assisted living, memory
care and care suites is a goal of the City and this project provides all four. The provision of life cycle housing
for the community is a state goal in the City's adopted Comprehensive Plan.
Here is the excerpt from the State Statutes regarding the sale of land by the Port Authority:
469.065 SALE OF PROPERTY.
A port authority shall hold a hearing on the sale. At the hearing a taxpayer may testify for or against
the sale. At least ten, but not more than 20, days before the hearing the authority shall publish notice of
the hearing on the proposed sale in a newspaper. The newspaper must be published and of general
circulation in the port authority's county and port district. The notice must describe the property to be
sold and state the time and place of the hearing. The notice must also state that the public may see the
terms and conditions of the sale at the authority's office and that at the hearing the authority will meet
to decide if the sale is advisable.
RECOMMENDATION
Motion to approve the Resolution.
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ROSEMOUNT PORT AUTHORITY
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2014 - 02
A RESOLUTION APPROVING SALE OF PROPERTY OWNED BY
THE CITY OF ROSEMOUNT PORT AUTHORITY
WHEREAS, the City of Rosemount Port Authority is the owner of real property generally
located west of South Robert Trail, south of 143rd Street, and east of Cameo Avenue, and
legally described as follows:
Lot One (1),Lot Two (2), the South 10 feet of Lot Five (5), Lot Six (6) and the North
8 feet of Lot Seven (7), School Addition to the City of Rosemount, Excepting
therefrom the Easterly 6 feet of said Lot One (1) measured parallel to and with the
Easterly lot line of said lot One (1), Dakota County, Minnesota;
and
WHEREAS, the Port Authority desires to sell the majority of the property (Lot 1,Block 1 of
Rosemount Senior Living) to the Rosemount Senior Living Associates I,LLC for purposes of
constructing a memory care, assisted living and independent living senior housing project and
convey the remaining property (Lot 2, Block 1, Rosemount Senior Living) to the City of
Rosemount to support the operation of the Steeple Center and activity center;and
WHEREAS,the Rosemount Senior Living Associates I,LLC will use the majority property(Lot
1, Block 1, Rosemount Senior Living) to construct at least 90 units of memory care, assisted
living and independent living senior housing that is in the best interest of the community and
further the City's goals for locating high density housing in Downtown,lifecycle housing,senior
housing near single family neighborhoods and the redevelopment of the St.Joseph's Complex;
and
WHEREAS,the City of Rosemount will use the remaining property(Lot 2,Block 1,Rosemount
Senior Living) to provide access,buffer the adjacent properties and construct a parking lot and
sidewalk to serve the Steeple Center and activity center and further the City's goals to locate
community facilities near their target population and redevelopment of the St.Joseph's Complex;
and
WHEREAS,according to Minnesota Statutes Section 469.065,the Port Authority is required to
hold a public hearing to determine that the sale and conveyance is in the best interest of the
community and the residents and that the transaction furthers the plans and goals of the Port
Authority; and
WHEREAS, on April 15, 2014, the Port Authority held a public hearing in accordance with
Minnesota Statutes Section 469.065 and determined that the sale of the property to the Dakota
County CDA is in the best interests of the community and its residents; and
WHEREAS,on April 15,2014,it was determined that the sale of the property furthers the plans
and goals of the Port Authority of redevelopment in the Downtown and bringing new residential
units into the Downtown area.
RESOLUTION 2014-02
NOW, THEREFORE, BE IT RESOLVED having met the requirements of Minnesota
Statutes Section 469.065,the City of Rosemount Port Authority approves the sale of the majority
of the property (Lot 1, Block 1, Rosemount Senior Living) described above to the Rosemount
Senior Living Associates I,LLC and convey the remaining property(Lot 2,Block 1,Rosemount
Senior Living) to the City of Rosemount.
ADOPTED by the Rosemount Port Authority this 15th day of April, 2014.
Jeff Weisensel, Chair
ATTEST:
Kim Lindquist, Deputy Director
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CONTRACT
FOR
PRIVATE DEVELOPMENT FOR
THE ROSEMOUNT AT STEEPLE CENTER
By and Among
THE ROSEMOUNT PORT AUTHORITY
and
THE CITY OF ROSEMOUNT
and
ROSEMOUNT SENIOR LIVING ASSOCIATES I, LLC
This document drafted by:
KENNEDY& GRAVEN, CHARTERED
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis,MN 55402
(612) 337-9300
438026 RS230-60
TABLE OF CONTENTS
PAGE
PREAMBLE 1
ARTICLE I
Definitions
Section 1.1. Definitions 1
Section 1.2. Exhibits 3
Section 1.3. Rules of Interpretation 3
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the Authority and the City 3
Section 2.2. Representations and Warranties by the Developer 3
ARTICLE III
Acquisition of Development Property
Section 3.1. Purchase of Property by Developer 4
Section 3.2. Title and Examination 4
Section 3.3. Taxes and Special Assessments 5
Section 3.4. Soil Conditions and Hazardous Wastes 5
Section 3.5. Site Clearance and Subdivision 5
Section 3.6. Other Preconditions to Closing 5
Section 3.7. Closing 6
Section 3.8. Closing Costs 6
Section 3.9. Sewer and Water 6
Section 3.10. ISTS Disclosure 6
Section 3.11. Well Disclosure 6
Section 3.12. Easement Agreement 6
ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Construction of Minimum Improvements 7
Section 4.2. Construction Plans 8
Section 4.3. Commencement and Completion of Construction 8
Section 4.4. Certificate of Completion and Release of Forfeiture 8
Section 4.5. Required Insurance 8
438026 RS230-60
ARTICLE V
Business Subsidy Act Requirements
Section 5.1. Business Subsidy 10
ARTICLE VI
Events of Default
Section 6.1. Events of Default Defined 10
Section 6.2. Remedies on Default 10
Section 6.3. Revesting Interest in the Authority and the City upon Happening of
Event of Default Subsequent to Conveyance to Developer 11
Section 6.4. No Remedy Exclusive 12
Section 6.5. No Additional Waiver Implied by One Waiver 12
ARTICLE VII
Restrictions on Sale; Subordination
Section 7.1. Restrictions on Sale or Assignment 12
Section 7.2. Subordination 14
ARTICLE VIII
Additional Provisions
Section 8.1. Conflict of Interests; Representatives Not Individually Liable 14
Section 8.2. Restrictions on Use 15
Section 8.3. Provisions Not Merged With Deed 15
Section 8.4. Notices and Demands 15
Section 8.5. Counterparts 15
Section 8.6. Disclaimer of Relationships 15
TESTIMONIUM 16
SIGNATURES 16-18
EXHIBIT A LEGAL DESCRIPTION OF CITY/AUTHORITY PROPERTY
EXHIBIT B PRELIMINARY PLAN DOCUMENTS
EXHIBIT C FORM OF CERTIFICATE OF COMPLETION AND RELEASE OF
FORFEITURE
EXHIBIT D SKETCH OF DEVELOPMENT PROPERTY
EXHIBIT E FORM OF PROPERTY DEED
EXHIBIT F FORM OF PARKING,ACCESS AND PEDESTRIAN LINK
EASEMENT AGREEMENT
438026 RS230-60 ii
CONTRACT FOR PRIVATE DEVELOPMENT
FOR THE ROSEMOUNT AT STEEPLE CENTER
This Contract for Private Development for The Rosemount At Steeple Center (the
"Agreement"), made this day of , 2014, by and among the Rosemount Port
Authority, a public corporation under the laws of Minnesota (the "Authority"), the city of
Rosemount, a Minnesota municipal corporation (the "City"), and Rosemount Senior Living
Associates I, LLC, a Minnesota limited liability company(the"Developer").
WITNESSETH:
WHEREAS, the Authority and the City are the fee owners of certain land legally described
on Exhibit A attached hereto (the"City/Authority Property"); and
WHEREAS, the Developer desires to purchase the portion of the City/Authority Property
depicted on Exhibit D attached hereto (the "Development Property") and construct improvements
(the"Minimum Improvements")thereon; and
WHEREAS, the Authority and the City believe that the sale and development of the
Development Property and the fulfillment generally of this Agreement are in the vital and best
interests of Rosemount and the health, safety, morals, and welfare of its residents.
NOW, THEREFORE, in consideration of the covenants and the mutual obligations
contained herein, the Authority, the City and the Developer hereby covenant and agree with each
other as follows:
ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement the following terms shall have the meanings
given unless a different meaning clearly appears from the context:
"Agreement" means this Agreement, as the same may be from time to time modified,
amended, or supplemented.
"Authority" means the Rosemount Port Authority, a public corporation under the laws of
Minnesota.
"Certificate of Completion and Release of Forfeiture" means a certificate in the form
attached hereto as Exhibit C by which the Authority acknowledges that the Developer has met its
obligations regarding construction of the Minimum Improvements.
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"City"means the city of Rosemount, a municipal corporation under the laws of Minnesota.
"City/Authority Property" means the real property legally described in Exhibit A attached
hereto. Parcels 1 and 3 are owned by the City. Parcel 2 is owned by the Authority.
"Construction Plans" means the final plans for construction of the Minimum Improvements
to be submitted by the Developer and approved by the Authority and by the City.
"County"means Dakota County, Minnesota.
"Developer" means Rosemount Senior Living Associates I, LLC, a Minnesota limited
liability company.
"Development Property" means the portion of the City/Authority Property to be acquired by
the Developer and upon which the Minimum Improvements will be constructed. The Development
Property is depicted in Exhibit D attached hereto.
"Event of Default" means an action by the Developer or the Authority or the City listed in
Article VI of this Agreement.
"Minimum Improvements" means a senior housing complex having approximately 90 units
and related services constructed in accordance with the Construction Plans. After completion of the
Minimum Improvements, the term shall mean the Development Property as improved by the
Minimum Improvements.
"Preliminary Plans" means, collectively, the plans, drawings and specifications for the
construction of the Minimum Improvements that are attached hereto as Exhibit B.
"Property Deed" means the quit claim deed in the form attached hereto as Exhibit E by
which the Authority and the City will convey the Development Property to the Developer.
"Sale" means any sale, conveyance, lease, exchange, forfeiture or other transfer of the
Developer's interest in the Minimum Improvements or Development Property,whether voluntary or
involuntary.
"State"means the state of Minnesota.
"Substantial Completion" means completion of the Minimum Improvements to the degree
allowing issuance of a certificate of occupancy by the City's building official.
"Unavoidable Delays" means delays that are the direct result of unanticipated adverse
weather conditions; strikes or other labor troubles; fire or other casualty to the Minimum
Improvements; litigation commenced by third parties that, by injunction or other similar judicial
action, directly results in delays; or any acts or omissions of any federal, State or local governmental
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unit that directly result in delays in construction of the Minimum Improvements, except those of the
City or the Authority reasonably contemplated by this Agreement.
Section 1.2. Exhibits. The following exhibits are attached to and by reference made a
part of this Agreement:
Exhibit A. Legal Description of City/Authority Property
Exhibit B. Preliminary Plan Documents
Exhibit C. Form of Certificate of Completion and Release of Forfeiture
Exhibit D. Sketch of Development Property
Exhibit E. Form of Property Deed
Exhibit F. Form of Parking, Access and Pedestrian Link Easement Agreement
Section 1.3. Rules of Interpretation. (a) This Agreement shall be interpreted in
accordance with and governed by the laws of Minnesota.
(b) The words "herein" and "hereof' and words of similar import, without reference to
any particular section or subdivision, refer to this Agreement as a whole rather than any particular
section or subdivision hereof.
(c) References herein to any particular section or subdivision hereof are to the section or
subdivision of this Agreement as originally executed.
(d) My titles of the several parts, articles and sections of this Agreement are inserted for
convenience and reference only and shall be disregarded in construing or interpreting any of its
provisions.
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the Authority and the City. The Authority and the City
make the following representations as the basis for the undertakings on their parts herein contained:
(a) The Authority and the City are public bodies under the laws of Minnesota, each with
the power to enter into this Agreement and carry out its obligations hereunder.
(b) The persons executing this Agreement and related agreements and documents on
behalf of the Authority and the City have the authority to do so and to bind the Authority and the
City, respectively,by their actions.
Section 2.2. Representations and Warranties by the Developer. The Developer makes the
following representations as the basis for the undertakings on its part herein contained:
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(a) The Developer is a limited liability company, duly organized and in good standing
under the laws of Minnesota and is not in violation of any provisions of its articles of organization
or by-laws. The Developer has the power to enter into this Agreement and carry out its obligations
hereunder. The persons executing this Agreement and related agreements and documents on behalf
of the Developer have the authority to do so and to bind the Developer by their actions.
(b) Following conveyance of the Development Property to the Developer, the
Developer will construct, operate and maintain the Minimum Improvements on the Development
Property in substantial accordance with the terms of this Agreement, the Construction Plans and all
local, State and federal laws and regulations, including, but not limited to, environmental, zoning,
building code and public health laws and regulations.
(c) The Developer will apply for and use its best efforts to obtain, in a timely manner,
all required permits, licenses and approvals, and will meet, in a timely manner, the requirements of
all applicable local, State and federal laws and regulations that must be obtained or met before the
Minimum Improvements may be lawfully constructed or used for their intended purpose.
(d) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of, the
terms, conditions or provisions or any restriction or any evidence of indebtedness, agreement or
instrument of whatever nature to which the Developer is now a party or by which it is bound, or
constitutes a default under any of the foregoing.
ARTICLE III
Acquisition of Development Property
Section 3.1. Purchase of Property by Developer. The Authority and the City agree to
sell the Development Property to Developer and the Developer agrees to purchase the
Development Property from the Authority and the City in an "as-is" condition. The Authority
and the City agree to convey the Development Property to the Developer by one or more quit
claim deeds in the general form of the Property Deed attached hereto as Exhibit E. The deeds to
the Developer will contain the right of reverter required in Section 6.3. The purchase price for
the Development Property, payable at Closing, will be One Dollar($1.00) ("Purchase Price").
Section 3.2. Title and Examination. Within 10 days after execution of this Agreement
by all parties, the Authority and the City shall deliver to the Developer a commitment for title
insurance covering the City/Authority Property. The Developer shall have 20 days from the date
it receives such title commitment to raise any objections to title to the Development Property it
may have. Objections not made within such time will be deemed waived. The Authority and the
City shall have 90 days from the date of such objection to effect a cure; provided, however, that
the Authority and the City shall have no obligation to cure any objections, and may inform
Developer of such. The Developer may then elect to close notwithstanding the uncured
objections or declare this Agreement null and void, and the parties will thereby be released from
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any further obligation hereunder.
Section 3.3. Taxes and Special Assessments. The Development Property is currently
tax exempt because it is part of the City/Authority Property. Real estate taxes for the
Development Property will be prorated between the Authority and the City, as vendors, and
Developer, as vendee, as of the date of closing. Although there are currently no special
assessments levied or pending against any portion of the City/Authority Property, the Authority
and the City will pay all special assessments levied against the Development Property prior to
the date of closing.
Section 3.4. Soil Conditions and Hazardous Wastes. The Developer acknowledges that
the Authority and the City make no representations or warranties as to the conditions of the soils
on the Development Property, its fitness for the construction of improvements or any other
purpose for which the Developer may use the Development Property, or regarding the presence
of hazardous wastes on the Development Property. The Authority and the City will allow
reasonable access to the Development Property for the Developer to conduct such tests regarding
soils conditions and hazardous wastes as the Developer may desire. Permission to enter the
Development Property to conduct such tests must be given in writing under reasonable terms and
conditions established by the Authority and the City. The Developer shall have 60 days from the
date of this Agreement to conduct such tests, investigations and inspections of the Development
Property as it deems prudent. The Developer must notify the Authority and the City in writing
on or before 60 days from the day of this Agreement if the Developer finds the Development
Property unsatisfactory based on the results of the tests, investigations and inspections and
wishes to terminate this Agreement. Failure by the Developer to notify the Authority and the
City within said 60 days shall constitute a waiver of the environmental contingency.
Section 3.5. Site Clearance and Subdivision. The Authority and the City will be
responsible for clearance of all buildings as required to prepare the Development Property for
development and securing a lawful subdivision, making the Development Property a legally
subdivided lot. All other site preparation is the responsibility of Developer. Subject to the
reasonable exercise of its discretion and compliance with all procedural requirements, the City
agrees to vacate easements necessary to accommodate the Minimum Improvements. The
Developer agrees to cooperate with the City in relocating such easements if necessary and
requested by the City.
Section 3.6. Other Preconditions to Closing. Closing may not take place until:
(a) the Developer has submitted and the Authority and the City have approved the
Construction Plans;
(b) the Developer has demonstrated to the satisfaction of the Authority and the City
that it has secured financing adequate to construct the Minimum Improvements;
(c) the Authority and the City have completed subdivision of the City/Authority
Property, creating the Development Property as a separate parcel of record;
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438026 RS230-60
(d) the Authority and the City have conducted all hearings and proceedings and have
made findings required by law as condition to conveyance of the Development Property and
approval of this Agreement, all in the absolute and sole discretion of the City and the Authority;
and
(e) Developer has secured all land use permits and approvals required for
development of its project and construction of the Minimum Improvements including, but not
limited to, approval of the Construction Plans.
(f) Developer is satisfied regarding the status of title and with regard to soils
conditions and hazardous waste as provided in sections 3.2 and 3.4 of this Agreement.
Section 3.7. Closing. Closing must take place on or before August 1, 2014 ("Closing
Date"), or such other date as may be agreed to by the Developer, the Authority and the City in
writing.
Section 3.8. Closing Costs. The Developer will pay: (a) the closing fees charged by its
title insurance company or other closing agent, if any, utilized to close the transaction for the
Developer; (b) fees for the title services chosen by the Developer pursuant to Section 3.2 above,
including the premium for title insurance policy, if any, and (c) the recording fees for the
Agreement and the Property Deed. The Authority and the City will pay all other fees normally
paid by sellers, including (a) any transfer taxes, and (b) fees and charges related to the filing of
any instrument required to make title marketable. Each party shall pay its own attorney fees.
Section 3.9. Sewer and Water. The Authority and the City warrant that city water is
available at the lot line and city sanitary sewer is available at the curb of the Development
Property. The water and sanitary sewer service lines are adequate in size to accommodate the
Minimum Improvements as well as anticipated improvements on the portion of the
City/Authority Property not acquired by the Developer.
Section 3.10. ISTS Disclosure. The Authority and the City are not aware of any
individual sewage treatment system on the Development Property. Developer is responsible for
all costs of removing any individual sewage treatment system that may be discovered on the
Development Property.
Section 3.11. Well Disclosure. The knowledge of the Authority and the City of wells on
the Development Property is disclosed in Exhibit E.
Section 3.12. Easement Agreement. At closing the parties shall execute in recordable
form the Parking, Access and Pedestrian Link Easement Agreement in the form attached hereto
as Exhibit F.
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ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Construction of Minimum Improvements. (a) If the Developer purchases
the Development Property, the Developer agrees that it will construct the Minimum Improvements
on the Development Property in accordance with the Construction Plans. The Developer recognizes
that it is because the Developer has agreed to construct the Minimum Improvements that the
Authority and the City are willing to sell the Development Property and offer the assistance outlined
in this Agreement. The Developer acknowledges that, in addition to the requirements of this
Agreement, construction of the Minimum Improvements will necessitate compliance with other
reviews and approvals by the City and the Authority and possibly other governmental agencies and
agrees to submit all applications for and pursue to their conclusion all other approvals needed prior
to constructing the Minimum Improvements. Developer will secure all required permits and pay all
permit and development fees and charges for the Minimum Improvements, except that a)
Developer will not be required to pay the City park dedication fee for units constructed for memory
care and care suite units which are estimated to be 30 units and b) sewer availability charges
("SAC") fees payable by Developer will be reduced by any credits for SAC fees given in
recognition of previously existing development on the City/Authority Property, less any such credits
needed to pay SAC fees for the Activity Center. The Developer agrees to pay the City a fee of
$20,000 at the time of issuance of a building permit for the Minimum Improvements. In addition to
any other standards of construction imposed by the City or the Authority, the Minimum
Improvements shall also include the following and meet the following standards:
(i) As a part of Minimum Improvements, Developer shall construct, at Developer's
expense, a surface level, climate controlled, walkway connection (the "Pedestrian Link") between
the Developer's Senior Center and the City's Activity Center as depicted on Exhibit D attached
hereto.
(ii) As a part of Minimum Improvements, Developer shall construct all parking lots and
landscaping shown in Exhibit D attached hereto on both the Development Property and the
City/Authority Property. Developer shall prepare Construction Plans and specifications for such
parking lots and landscaping in consultation with the Authority and the City and subject to approval
by the City. Bidding documents for parking lots and landscaping shall be designed to allow
determination with reasonable certainty the portion of construction costs allocable to the City for
that part of the parking lot improvements and landscaping lying within City/Authority Property that
is not included in the Development Property. Upon completion of parking lot and landscaping
improvements in accordance with approved construction documents, Developer will invoice City
for the City's share of such costs, which the City will pay to Developer within thirty (30) days of
receipt of an invoice therefor, together with such other documentation of costs as the City may
reasonably require. The Developer and the City and the Authority agree to development of a long-
term maintenance agreement which will lay out payments and expectations for site improvements
such as underground stormwater system, landscaping, parking, and other items mutually beneficial
to each party.
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(b) The City applied for a Livable Communities Development Account ("LCDA") grant in
2011 and has received the requested funding, which will be used, in part, to benefit the Minimum
Improvements. Specifically, the LCDA grant provides $200,000 for an on-site stormwater detention
system and associated engineering which will reduce the Developer's costs associated with the
construction of the Minimum Improvements, so long as the work performed is consistent with the
rules and regulations of the LCDA grant program. The City will not reimburse stormwater design
and construction costs not eligible for reimbursement under the LCDA grant program and will not
reimburse for costs in excess of the grant allocation.
Section 4.2. Construction Plans. Within 60 days after execution of this Agreement, the
Developer shall submit dated Construction Plans to the Authority and the City. The Construction
Plans shall provide for the construction of the Minimum Improvements and shall be in
substantial conformity with the Preliminary Plans and this Agreement.
Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable
Delays, the Developer shall commence construction of the Minimum Improvements no later than
September 1, 2014. Subject to Unavoidable Delays, the Developer shall have substantially
completed the construction of the Minimum Improvements no later than December 31, 2015. All
work with respect to the Minimum Improvements to be constructed or provided by the Developer
on the Development Property shall be in conformity with the Construction Plans.
Section 4.4. Certificate of Completion and Release of Forfeiture. After substantial
completion of the Minimum Improvements in accordance with the Construction Plans and all terms
of this Agreement, the Authority and the City will fumish the Developer with a Certificate of
Completion and Release of Forfeiture in the form attached hereto as Exhibit C. Such certification
by the Authority and the City shall be a conclusive determination of satisfaction and termination of
the agreements and covenants in this Agreement with respect to the obligations of the Developer to
construct the Minimum Improvements. The Certificate of Completion and Release of Forfeiture
shall only be issued after issuance of a certificate of occupancy by the City. The Certificate of
Completion and Release of Forfeiture provided for in this section 4.4 shall be in such form as will
enable it to be recorded in the proper County office for the recordation of deeds and other
instruments pertaining to the Development Property.
Section 4.5. Required Insurance. (a) The Developer itself or through its general
contractor agrees to provide and maintain at all times during the process of constructing the
Minimum Improvements and, from time to time at the request of the Authority, furnish the
Authority with proof of payment of premiums on:
(i) Builder's risk insurance, written on the so-called `Builder's Risk —
Completed Value Basis," in an amount equal to 100 percent of the insurable value of the
Minimum Improvements at the date of completion, and with coverage available in non-
reporting form on the so called"all risk"form of policy;
(ii) Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations and contractual liability
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insurance) together with an Owner's Contractor's Policy with limits against bodily injury
and property damage of not less than $1,000,000 for each occurrence (to accomplish the
above required limits, an umbrella excess liability policy may be used); and
(iii) Workers' compensation insurance, with statutory coverage.
The policies of insurance required pursuant to clauses (i) and (ii) above shall be in form and content
reasonably satisfactory to the Authority and shall be placed with financially sound and reputable
insurers licensed to transact business in Minnesota. The policy of insurance delivered pursuant to
clause (i) above shall contain an agreement of the insurer to give not less than 30 days' advance
written notice to the Authority in the event of cancellation of such policy or change affecting the
coverage thereunder.
(b) Upon completion of construction of the Minimum Improvements, the Developer
shall maintain, or cause to be maintained, at its cost and expense, and from time to time at the
request of the Authority shall furnish proof of the payment of premiums on, insurance as follows:
(i) Insurance against loss and/or damage to the Minimum Improvements under
a policy or policies covering such risks as are ordinarily insured against by similar
businesses, including (without limiting the generality of the foregoing) fire, extended
coverage, vandalism and malicious mischief, heating system explosion, water damage,
demolition cost, debris removal, collapse and flood, in an amount not less than the full
insurable replacement value of the Minimum Improvements. No policy of insurance shall
be so written that the proceeds thereof will produce less than the minimum coverage
required by the preceding sentence, by reason of coinsurance provisions or otherwise,
without the prior consent thereto in writing by the Authority. The term "full insurable
replacement value" shall mean the actual replacement cost of the Minimum Improvements
and shall be determined from time to time at the request of the Authority, but not more
frequently than once every three years, by an insurance consultant or insurer, selected and
paid for by the Developer and approved by the Authority; and
(ii) Such other insurance, including worker's compensation insurance respecting
all employees of the Developer, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and liability exposure; provided
that the Developer may be self-insured with respect to all or any part of its liability for
worker's compensation.
(c) All insurance required in this Section 4.5 shall be taken out and maintained in
responsible insurance companies selected by the Developer that are authorized under the laws of
Minnesota to assume the risks covered thereby. The Developer agrees to deposit annually with the
Authority copies of policies evidencing all such insurance, or a certificate or certificates or binders
of the respective insurers stating that such insurance is in force and effect. Unless otherwise
provided in this Section 4.5, each policy shall contain a provision that the insurer shall not cancel
nor materially modify it without giving written notice to the Developer and the Authority at least 30
days before the cancellation or modification becomes effective. Not less than 15 days prior to the
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expiration of any policy, the Developer shall furnish the Authority evidence satisfactory to the
Authority that the policy has been renewed or replaced by another policy conforming to the
provisions of this Section 4.5, or that there is no necessity therefore under the terms of this
Agreement. In lieu of separate policies, the Developer may maintain a single policy, blanket or
umbrella policies, or a combination thereof, having the coverage required herein, in which event the
Developer shall deposit with the Authority a certificate or certificates of the respective insurers as to
the amount of coverage in force upon the Minimum Improvements.
ARTICLE V
Business Subsidy Act Requirements
Section 5.1. Business Subsidy. This Agreement provides assistance for housing and is
therefore not subject to the requirements of Minnesota Statutes, Sections 1161993 to 116J.995.
ARTICLE VI
Events of Default
Section 6.1. Events of Default Defined. Each and every one of the following shall be an
Event of Default under this Agreement:
(a) Failure by the Authority or the City or the Developer to proceed to closing on the
Development Property after compliance with or the occurrence of all conditions precedent to
closing;
(b) Failure by the Developer to commence and complete construction of the Minimum
Improvements pursuant to the terms, conditions and limitations of this Agreement, including the
timing thereof,unless such failure is caused by an Unavoidable Delay;
(c) Failure by the Developer to pay real estate taxes or special assessments on the
Development Property or Minimum Improvements constructed on the Development Property as
they become due; or
(d) Failure by any party to observe or perform any material covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement.
Section 6.2. Remedies on Default. Whenever any Event of Default referred to in
section 6.1 of this Agreement occurs, any non-defaulting party may take any one or more of the
following actions after providing 30 days written notice to the defaulting party of the Event of
Default, but only if the Event of Default has not been cured within said 30 days or, if the Event of
Default is by its nature incurable within 30 days, the defaulting party does not provide assurances to
the non-defaulting party reasonably satisfactory to the non-defaulting party that the Event of Default
will be cured and will be cured as soon as reasonably possible:
10
438026 RS230-60
(a) Suspend its performance under this Agreement, including refusing to close on the
Development Property, until it receives assurances from the defaulting party, deemed adequate by
the non-defaulting party, that the defaulting party will cure its default and continue its performance
under this Agreement;
(b) Terminate or rescind this Agreement;
(c) If the default occurs prior to completion of the Minimum Improvements, the
Authority and the City may withhold the Certificate of Completion and Release of Forfeiture;
(d) If the default occurs prior to issuance of the Certificate of Completion and Release
of Forfeiture, revert title to the Development Property in the name of the Authority and the City
pursuant to Section 6.3 of this Agreement; and •
(e) Take whatever action, including legal or administrative action, that may appear
necessary or desirable to any non-defaulting party to collect any payments due under this
Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of
the defaulting party under this Agreement.
Section 6.3. Revesting Interest in the Authority and the City upon Happening of Event of
Default Subsequent to Conveyance to Developer. In the event that subsequent to conveyance of the
Development Property to the Developer and prior to the issuance of a Certificate of Completion and
Release of Forfeiture for the Minimum Improvements:
(a) the Developer, subject to Unavoidable Delays, fails to begin construction of the
Minimum Improvements in conformity with this Agreement and such failure to begin construction
is not cured within 30 days after written notice from the Authority and the City to the Developer to
do so; or
(b) subject to Unavoidable Delays, the Developer, after commencement of the
construction of the Minimum Improvements, fails to carry out its obligations with respect to the
completion of construction of the Minimum Improvements (including the nature and the date for the
completion thereof), or abandons or substantially suspends construction work, and any such failure,
abandonment, or suspension shall not be cured, ended, or remedied within 30 days or such longer
period as may reasonably be necessary but not to exceed 120 days after written demand from the
Authority and the City to the Developer to do so; or
(c) the Developer shall fail to pay real estate taxes or assessments on the Development
Property when due, or shall place thereon any encumbrance or lien unauthorized by this Agreement,
or shall suffer any levy or attachment to be made, or any materialmen's or mechanic's lien, or any
other unauthorized encumbrance or lien to attach, and such taxes or assessments shall not have been
paid, or the encumbrance or lien removed or discharged or provision satisfactory to the Authority
and the City made for such payment, removal, or discharge, within 30 days after written demand by
the Authority and the City to do so or such longer period, not to exceed 60 days, as may reasonably
be necessary to remove said lien or encumbrance; provided, that if the Developer shall first notify
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438026 RS230-60
the Authority and the City of its intention to do so, it may in good faith contest any mechanics' or
other lien to remain undischarged and unsatisfied during the period of such contest and any appeal,
but only if the Developer provides the Authority and the City with a bank letter of credit or other
security in the amount of the lien, in a form satisfactory to the Authority and the City pursuant to
which the bank will pay to the Authority and the City the amount of any lien in the event the lien is
finally determined to be valid or, as an alternative to such forms of security, has made a deposit with
the district court in the manner provided in Minnesota Statutes, section 514.10. During the course
of such contest, the Developer shall keep the Authority and the City informed respecting the status
of such defense;
then the Authority and the City shall have the right to re-enter and take possession of the
Development Property and to terminate and revest in the Authority and the City the interest of the
Developer in the Development Property; provided, however, that any exercise by the Authority
and the City of their rights or remedies hereunder shall always be subject to and limited by, and
shall not defeat, render invalid or limit in any way the lien of any mortgage or other
encumbrance specifically and previously authorized by the Authority and the City in writing
under this Agreement or any rights or interests provided in this Agreement for the protection of
the holders of an approved encumbrance.
Section 6.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
parties is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle the Authority and the City or the
Developer to exercise any remedy reserved to them, it shall not be necessary to give notice, other
than such notice as may be required in Article VIII of this Agreement.
Section 6.5. No Additional Waiver Implied by One Waiver. In the event any covenant or
agreement contained in this Agreement should be breached by any party and thereafter waived by
any other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent,previous or subsequent breach hereunder.
ARTICLE VII
Restrictions on Sale; Subordination
Section 7.1. Restrictions on Sale or Assignment. The Developer represents and agrees
that its purchase of the Development Property and its other undertakings pursuant to this
Agreement, are, and will be used, for the purpose of development of the Development Property
and not for speculation in land holding. The Developer represents and agrees that:
(a) Prior to issuance of the Certificate of Completion and Release of Forfeiture for
the Minimum Improvements, except security for, and only for, the purpose of obtaining
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438026 RS230-60
financing necessary to enable the Developer to purchase the Development Property, perform its
obligations with respect to the Minimum Improvements under this Agreement, and any other
purpose authorized by this Agreement, the Developer has not made or created and will not make
or create or suffer to be made or created any total or partial Sale in any mode or form of or with
respect to the Minimum Improvement or the Development Property or any part thereof or any
interest therein, or any contract or agreement to do the same, without the prior written approval
of the Authority and the City unless the Developer remains liable and bound by this Agreement
in which event the Authority's and City's approval is not required. Any such Sale shall be
subject to the provisions of this Agreement.
(b) In the event the Developer, upon Sale of the Development Property or any portion
thereof, seeks to be released from its obligations under this Agreement as to the portions of the
Minimum Improvements or Development Property that is subject to the Sale, the Authority and
the City shall be entitled to require, except as otherwise provided in the Agreement, as conditions
to any such Sale that:
(i) Any proposed transferee shall have the qualifications and financial
responsibility, in the reasonable judgment of the Authority and the City, necessary and
adequate to fulfill the obligations undertaken in this Agreement by the Developer as to
the portion of the Minimum Improvements or Development Property subject to the Sale.
(ii) Any proposed transferee, by instrument in writing satisfactory to the
Authority and the City and in form recordable among the County land records, shall, for
itself and its successors and assigns, and expressly for the benefit of the Authority and the
City, have expressly assumed all of the obligations of the Developer under this
Agreement as to the portion of the Minimum Improvements or Development Property
subject to the Sale and agreed to be subject to all the conditions and restrictions to which
the Developer is subject as to such portion; provided, however, that the fact that any
transferee to, or any other successor in interest whatsoever of, the Minimum
Improvements or Development Property, or any part thereof, shall not, for whatever
reason, have assumed such obligations or so agreed, and shall not (unless and only to the
extent otherwise specifically provided in this Agreement or agreed to in writing by the
Authority and the City) deprive the Authority and the City of any rights or remedies or
controls with respect to the Development Property or any part thereof or the construction
of the Minimum Improvements; it being the intent of the parties as expressed in this
Agreement that (to the fullest extent permitted at law and in equity and excepting only in
the manner and to the extent specifically provided otherwise in this Agreement) no Sale
of, or change with respect to, ownership in the Minimum Improvements or Development
Property or any part thereof, or any interest therein, however consummated or occurring,
and whether voluntary or involuntary, shall operate, legally or practically, to deprive or
limit the Authority or the City of or with respect to any rights or remedies or controls
provided in or resulting from this Agreement with respect to the Minimum Improvements
or Development Property that the Authority or the City would have had, had there been
no such Sale. In the absence of specific written agreement by the Authority and the City
to the contrary, no Sale or approval by the Authority or the City thereof shall be deemed
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438026 RS230-60
to relieve the Developer, or any other party bound in any way by this Agreement or
otherwise with respect to the construction of the Minimum Improvements, from any of its
obligations with respect thereto.
(iii) Any and all instruments and other legal documents involved in effecting
the Sale of any interest in this Agreement or the Minimum Improvements or
Development Property governed by this Article VII, shall be in a form reasonably
satisfactory to the Authority and the City.
(c) Any notice of rejection shall contain detailed reasons for the rejection. The
Authority's and the City's approval of any Sale shall not be unreasonably withheld. In the event
the foregoing conditions are satisfied, the Developer shall be released from its obligation under
this Agreement as to the portion of the Minimum Improvements or Development Property that is
subject to the Sale.
(d) After issuance of the Certificate of Completion and Release of Forfeiture for the
Minimum Improvements, the Developer may transfer or assign any portion of the Development
Property or the Developer's interest in this Agreement for which a Certificate of Completion and
Release of Forfeiture has been issued, without the prior written consent of the Authority or the
City. The Developer shall submit to the Authority and the City written evidence of any such
transfer or assignment, including the transferee or assignee's express assumption of the
Developer's obligations under this Agreement. If the Developer fails to provide such evidence
of transfer and assumption, the Developer shall remain bound by all it obligations under this
Agreement.
Section 7.2 Subordination. The Authority and the City agree that, upon request by the
Developer, the Authority and the City will subordinate their interests under this Agreement to the
mortgage lien for construction financing and the permanent first mortgage and associated
assignment of leases and rents made with respect to the Development Property and the Minimum
Improvements. Such subordination shall be evidenced by an agreement in form and substance
satisfactory to the Authority and the City.
ARTICLE VIII
Additional Provisions
Section 8.1. Conflict of Interests; Representatives Not Individually Liable. No officer,
official, or employee of the Authority or the City shall have any personal financial interest, direct or
indirect, in this Agreement, nor shall any such officer, official, or employee participate in any
decision relating to the Agreement that affects his or her personal financial interests, directly or
indirectly. No officer, official, or employee of the Authority or the City shall be personally liable to
the Developer, or any successor in interest, in the event of any default or breach or for any amount
that may become due or on any obligation under the terms of this Agreement.
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438026 RS230-60
Section 8.2. Restrictions on Use. The Developer, for itself and its successors and assigns,
agrees to devote the Development Property and Minimum Improvements only to such land use or
uses as may be permissible under the City's land use regulations.
Section 8.3. Provisions Not Merged With Deed. None of the provisions of this
Agreement is intended to or shall be merged by reason of delivery of the Property Deed and the
Property Deed shall not be deemed to affect or impair the provisions and covenants of this
Agreement.
Section 8.4. Notices and Demands. Except as otherwise expressly provided in this
Agreement, any notice, demand, or other communication under the Agreement or any related
document by any party to any other shall be sufficiently given or delivered if it is dispatched by
registered or certified United States mail, postage prepaid, return receipt requested, or delivered
personally to:
(a) in the case of the Authority: Rosemount Port Authority
2875 — 145th Street W.
Rosemount, MN 55068
Attn: Executive Director
(b) in the case of the Developer: Rosemount Senior Living Associates I, LLC
(c) in the case of the City: City of Rosemount
2875— 145th Street W.
Rosemount, MN 55068
Attn: City Administrator
or at such other address with respect to any such party as that party may, from time to time,
designate in writing and forward to the others as provided in this section 8.4.
Section 8.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 8.6. Disclaimer of Relationships. The Developer acknowledges that nothing
contained in this Agreement nor any act by the Authority or the City or the Developer shall be
deemed or construed by the Developer or by any third person to create any relationship of
third-party beneficiary, principal and agent, limited or general partner, or joint venture between or
among the Authority or the City and the Developer.
*****************
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438026 RS230-60
IN WITNESS WHEREOF, the Authority, the City and the Developer have caused this
Agreement to be duly executed in their names and behalves on or as of the date first above
written.
ROSEMOUNT PORT AUTHORITY
By:
Jeff Weisensel, Chair
By:
Dwight Johnson, Executive Director
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
The foregoing instrument as acknowledged before me this day of , 2014,
by Jeff Weisensel and Dwight Johnson, the Chair and Executive Director, respectively, of the
Rosemount Port Authority, a public corporation under the laws of Minnesota, on behalf of the
Authority.
Notary Public
16
438026 RS230-60
CITY OF ROSEMOUNT
By:
William Droste, Mayor
And:
Amy Domeier, City Clerk
STATE OF )
ss.
COUNTY OF )
The foregoing instrument as acknowledged before me this day of , 2014,
by William Droste and Amy Domeier, Mayor and City Clerk, respectively, of the city of
Rosemount, a municipal corporation under the laws of Minnesota, on behalf of the City.
Notary Public
17
438026 RS230-60
ROSEMOUNT SENIOR LIVING ASSOCIATES I,LLC
By:
Its:
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was executed this day of , 2014, by
, the of Rosemount Senior Living
Associates I, LLC, a Minnesota limited liability company, on behalf of the limited liability
company.
Notary Public
18
438026 RS230-60
EXHIBIT A
LEGAL DESCRIPTION OF CITY/AUTHORITY PROPERTY
The City/Authority Property is located in Dakota County, Minnesota, and is legally described as
follows:
Parcel 1:
Lot 1, Block 1, Kilcumreragh Addition, Dakota County, Minnesota
Parcel 2:
Lot 1, 2, the South 10 feet of Lot Five (5) and all of Lot Six (6) and the North 8 feet of Lot Seven
(7) in School Addition to the City of Rosemount, Excepting therefrom the Easterly 6 feet of said Lot
1 measured parallel to and with the Easterly lot line of said Lot 1, Dakota County, Minnesota.
Parcel 3:
Lots 3, 4, and all of Lot 5 except the Southerly 10 feet, School Addition to the City of Rosemount,
Dakota County, Minnesota.
Abstract Property
A-1
438026 RS230-60
EXHIBIT B
PRELIMINARY PLAN DOCUMENTS
Site Plan C2.0 dated 1/28/14
Grading Plan C3.0 dated 1/28/2014
Utility Plan C4.0 dated 1/28/2014
SWPPP C5.0-5.1 dated 1/28/2014
Details C6.0-6.2 dated 1/28/2014
Landscape Plan L1.0-1.1 dated 1/28/2014
Lighting Plan L2.0 dated 1/28/2014
Floor Plans A300-A304 dated 1/28/2014
Building Elevations A500-501 dated 1/28/2014
Building Section A600 dated 1/28/2014
B-1
438026 RS230-60
EXHIBIT C
FORM OF
CERTIFICATE OF COMPLETION
AND RELEASE OF FORFEITURE
WHEREAS, the Rosemount Port Authority and the City of Rosemount (the "Grantors"), by
a deed recorded in the office of the County Recorder in Dakota County, Minnesota, as Document
No. , has conveyed to , a under the
laws of the State of (the "Grantee"), the following described land in County of
Dakota and State of Minnesota,to-wit:
and
WHEREAS, said deed was executed pursuant to that certain Contract for Private
Development by and between the Grantors and the Grantee dated the day of , 2014 and
recorded in the office of the County Recorder in Dakota County, Minnesota, as Document
No. , which Contract for Private Development contained certain covenants and restrictions
regarding completion of the Minimum Improvements; and
WHEREAS, said Grantee has performed said covenants and conditions in a manner deemed
sufficient by the Grantors to permit the execution and recording of this certification.
NOW, THEREFORE, this is to certify that all construction of the Minimum Improvements
specified to be done and made by the Grantee has been completed and the covenants and conditions
in the Contract for Private Development have been performed by the Grantee therein and that the
provisions for forfeiture of tide and right to re-entry for breach of condition subsequent by Grantors
is hereby released absolutely and forever, and the County Recorder in Dakota County, Minnesota is
hereby authorized to accept for recording and to record the filing of this instrument, to be a
conclusive determination of the satisfactory termination of the covenants and conditions relating to
completion of the Minimum Improvements.
438026 RS230-60 C-1
Dated: , 201 . ROSEMOUNT PORT AUTHORITY
By:
Jeff Weisensel, Chair
By:
Dwight Johnson, Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
The foregoing instrument as acknowledged before me this day of , 201_,
by Jeff Weisensel and Dwight Johnson, Chair and Executive Director, respectively, of the
Rosemount Port Authority, a public corporation under the laws of Minnesota, on behalf of the
Authority.
Notary Public
CITY OF ROSEMOUNT
By:
William Droste, Mayor
And:
Amy Domeier, City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
The foregoing instrument as acknowledged before me this day of , 201_,
by William Droste and Amy Domeier, Mayor and City Clerk, respectively, of the City of
Rosemount, a municipal corporation under the laws of Minnesota, on behalf of the City.
Notary Public
438026 RS230-60 C-2
EXHIBIT D
SKETCH OF PROPERTY
CO.0 Boundary and Topographic Survey dated 1/28/2014
D-1
438026 RS230-60
EXHIBIT E
FORM OF PROPERTY DEED
Quit Claim Deed
STATE DEED TAX DUE HEREON: $
Date:
FOR VALUABLE CONSIDERATION, the Rosemount Port Authority and the City of Rosemount,
Minnesota, both municipal corporations under the laws of the State of Minnesota, Grantors, hereby
convey and quitclaim to , a under the laws
of , Grantee,real property in Dakota County, Minnesota, described as follows:
(if more space is needed,continue on back)
together with all hereditaments and appurtenances.
This deed is subject to that certain Contract for Private Development between Grantors and Grantee,
dated , 20 (the "Contract"), recorded , 20 , in the office of the Dakota
County Recorder/Registrar of Titles as Document No. . The Contract provides that the
Grantee's rights and interest in the real property described above are subject to the Grantors' right to re-
enter and revest in Grantors title to the Property under conditions specified therein, including but not
limited to termination of the Grantors' right to re-enter and revest upon issuance of a Certificate of
Completion as defined in the Agreement.
OThe Seller certifies that the seller does not know of any wells on the described real property.
❑A well disclosure certificate accompanies this document.
❑I am familiar with the property described in this instrument and I certify that the status and number of
wells on the described real property have not changed since the last previously filed well disclosure
certificate.
E-1
438026 RS230-60
ROSEMOUNT PORT AUTHORITY
By
Jeff Weisensel, Chair
By
Dwight Johnson, Executive Director
STATE OF MINNESOTA
ss.
COUNTY OF HENNEPIN
The foregoing was acknowledged before me this day of , 2014, by
Jeff Weisensel and Dwight Johnson, the Chair and Executive Director, respectively, of the
Rosemount Port Authority, a public corporation under the laws of Minnesota, on behalf of the
Authority, Grantor.
NOTARIAL STAMP OR SEAL(OR OTHER TITLE OR RANK)
SIGNATURE OF PERSON TAKING ACKNOWLEDGMENT
E-2
438026 RS230-60
CITY OF ROSEMOUNT
By:
William Droste, Mayor
And:
Amy Domeier, City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
The foregoing instrument as acknowledged before me this day of , 2014,
by William Droste and Amy Domeier, Mayor and City Clerk, respectively, of the City of
Rosemount, a municipal corporation under the laws of Minnesota, on behalf of the City.
NOTARIAL STAMP OR SEAL(OR OTHER TITLE OR RANK)
SIGNATURE OF PERSON TAKING ACKNOWLEDGMENT
Check here if part or all of the land is Registered(Torrens) ❑
Tax Statements for the real property described
in this instrument should be sent to (include
name and address of Grantee):
This instrument drafted by:
Kennedy & Graven, Chartered
470 U. S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
E-3
438026 RS230-60
EXHIBIT F
FORM OF
PARKING, ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT
This Agreement is entered into by City of Rosemount, a Minnesota municipal corporation
("City") and Rosemount Senior Living Associates I, LLC, a Minnesota limited liability company
("Developer"), as of the day of , 2014 (the "Execution Date").
RECITALS:
A. City is the owner of certain land located in Dakota County, Minnesota, which is, or will
be, improved and operated by the City as the Steeple Center, a conference and event center, and
a senior Activity Center (the "City Tract" as hereinafter defined).
B. Developer is the owner of certain unimproved land located in Dakota County,
Minnesota, located immediately adjacent to the City Tract, which it acquired this date from the
City and the Rosemount Port Authority (the "Developer Tract" as hereinafter defined), and
which it intends to develop and operate as a senior housing facility (the "Senior Housing
Facility" as hereinafter defined).
C. City and Developer desire to create certain reciprocal parking rights on the City Tract and
the Developer Tract and to provide for the mutual use and enjoyment of certain shared access
driveways and an enclosed pedestrian link to be constructed on the City Tract by Developer.
D. In order to encourage the common use and operation of their respective properties, City
and Developer desire to enter into certain covenants and agreements as a part of a general plan,
and to grant to each other certain easements, in, to, over, and across their respective properties
as herein set forth.
AGREEMENT:
City and Developer agree as follows:
1. Definitions
1.1. Activity Center. The "Activity Center" shall mean the public facility to be used
primarily for senior activities located on the City Tract, as depicted on Exhibit A.
1.2. City Tract Parking Lot Area. The "City Tract Parking Lot Area" shall mean that
part of the Shared Driveway and Parking Area lying within the City Tract, as
described on Exhibit E.
1.3. City Tract. The "City Tract" shall mean the property that is legally described on
Exhibit B and depicted on Exhibit A.
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438026 RS230-60
1.4. City Tract Shared Driveway Area. The "City Tract Shared Driveway Area" shall
men that part of the City Tract so designated as depicted on Exhibit A and legally
described on Exhibit H.
1.5. Developer Tract Parking Lot Area. The "Developer Tract Parking Lot Area"
shall mean that part of the Shared Parking Lot area lying within the Developer
Tract, as described in Exhibit D.
1.6. Developer Tract. The "Developer Tract" shall mean the property that is legally
described on Exhibit B, and depicted on Exhibit A.
1.7. Developer Tract Shared Driveway Area. The "Developer Tract Shared Driveway
Area" shall mean that part of the Developer Tract so designated as depicted on
Exhibit A and legally described on Exhibit G.
1.8. Development Agreement. The "Development Agreement" shall mean that certain
Contract for Private Development dated March 18, 2013 by and between the City, the
Rosemount Port Authority and Developer relating to the acquisition and development
of the Developer Tract and the City Tract, as the same may be amended,
supplemented and extended from time to time.
1.9. Easement Areas. The "Easement Areas" shall mean the Shared Driveway and
Parking Area and the Pedestrian Link Corridor Area.
1.10. Facility or Facilities. A "Facility" or "Facilities" shall mean the Senior Housing
Facility, the Activity Center and the Steeple Center.
1.11. Occupant. "Occupant" shall mean any Person from time to time entitled to the use
and occupancy of a Facility under an ownership right or any lease, sublease, license,
concession, or other similar agreement.
1.12. Owner. "Owner" shall mean each signatory hereto and, after compliance with the
notice requirements set forth below,their respective successors and assigns.
1.13. Pedestrian Link. The "Pedestrian Link" shall mean the enclosed one-story, ground
level, climate controlled structure to be installed and constructed by Developer on the
City Tract and the Developer Tract in accordance with and pursuant to the terms of
the Development Agreement providing a pedestrian access corridor between the
Activity Center and the Senior Housing Facility.
1.14. Pedestrian Link Corridor Area. The "Pedestrian Link Corridor Area" shall mean the
portions of the City Tract and the Developer Tract located within the Pedestrian Link
and designated "Pedestrian Link Corridor Area" on the Site Plan and legally
described on Exhibit F.
1.15. Permittee. "Permittee" shall mean all Occupants and the officers, directors,
employees, agents, contractors, customers, vendors, suppliers, visitors, invitees,
licensees, subtenants, and concessionaires of Occupants insofar as their activities
F-2
438026 RS230-60
relate to the intended use of the Facilities. Among others, Persons engaging in any of
the following activities will not be considered to be Permittees:
1.15.1 Exhibiting any placard, signs or notice.
1.15.2 Distributing any circular,handbill, placard, or booklet.
1.15.3 Soliciting memberships or contributions.
1.15.4 Parading, picketing, or demonstrating.
1.15.5 Failing to follow regulations relating to the use of the Facilities.
1.16. Person. "Person" shall mean any individual, partnership, firm, association,
corporation, trust, or any other form of business or government entity.
1.17. Senior Housing Facility. The "Senior Housing Facility" means the senior housing
living facility to be constructed on the Developer Tract by Developer, pursuant to
the Development Agreement.
1.18. Shared Driveway and Parking Area. The "Shared Driveway and Parking Area" shall
mean the portions of the Developer Tract and the City Tract designated "Shared
Driveway and Parking Area" on Exhibit A and legally described on Exhibit C.
1.19. Site Plan. The "Site Plan" shall mean the site plan that is attached to this Agreement
as Exhibit A.
1.20. Steeple Center. "Steeple Center" means the conference and event center on the City
Tract, as depicted on Exhibit A.
2. Term
This Agreement shall be effective as of the Execution Date and shall continue in full force and
effect until 11:59 p.m. on the date that is 30 years after the Execution Date; provided, however,
that this Agreement, and all restrictions and covenants contained in this Agreement, shall be
automatically extended on a year to year basis following such date which is 30 years after the
Execution Date unless any Owner notifies all other Owners, by notice given at least 4 months
prior to the end of any year, that it exercises its option to prevent this Agreement from being so
extended; and provided further that, whether or not this Agreement is so extended, the easements
referred to in Section 3, and all obligations related thereto, shall continue in force and effect in
perpetuity as provided in Section 3, except as otherwise specifically provided in subsections 3.1,
3.2, 3.3, 3.4 and 4.6. Upon expiration of this Agreement, all rights and privileges derived from
and all duties and obligations created and imposed by the provisions of this Agreement, except as
relates to the easements mentioned above, shall terminate and have no further force or effect;
provided, however, that the expiration of this Agreement shall not limit or affect any remedy at
law or in equity that an Owner may have against any other Owner with respect to any liability or
obligation arising or to be performed under this Agreement prior to the date of such expiration.
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3. Easements
3.1. City Tract Parking. The Owner of the City Tract, for itself and its successors and
assigns, hereby grants and conveys to the Owner of the Developer Tract for its
use and for the use of its Permittees, in common with others entitled to use the
same, a perpetual, non-exclusive easement for parking of vehicles and the passage
of vehicles and pedestrians over and across the City Tract Parking Lot Area.
Such easement rights shall be subject to the following reservations and
agreements as well as other provisions contained in this Agreement:
3.1.1 The Owner of the City Tract may at any time make changes to, close off,
and/or construct buildings and improvements on, all or any portion of the
City Tract Parking Lot Area without the approval of any other Owner, so
long as such change, closing or construction does not unreasonably
interfere with any of the other easements granted herein, and further
provided that all of the following conditions are met:
3.1.1.1 No governmental rule, ordinance or regulation shall be violated
as a result of such action, and such action shall not result in the
Owner of the Developer Tract being in violation of any
governmental rule, ordinance or regulation.
3.1.1.2 The number of remaining parking spaces on the City Tract shall
be at least 28 parking spaces.
3.1.1.3 No change shall be made in the access point to Cameo Avenue.
3.1.1.4 At least 30 days prior to making any such substantial change,
modification or alteration, the Owner of the City Tract shall
deliver to the Owner of the Developer Tract copies of the plans
therefor.
3.1.2 The Owner of the City Tract reserves the right to close off any portion of
the City Tract Parking Lot Area for such reasonable period of time as may
be necessary to make needed repairs or as may be legally necessary, in the
opinion of such Owner's counsel, to prevent the acquisition of prescriptive
rights by anyone; provided however, that prior to closing off any portion
of the City Tract Parking Lot Area materially and adversely affecting
parking on the Developer Tract, the Owner of the City Tract shall give
written notice to the Owner of the Developer Tract of its intention to do
so, and shall attempt to coordinate such closing with the Owner of the
Developer Tract so that no unreasonable interference shall occur.
3.1.3 The Owner of the City Tract reserves the right at any time and from time to
time to exclude and restrain any Person who is not a Permittee from using the
Parking Lot Area.
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438026 RS230-60
3.1.4 Parking in the City Tract Parking Lot Area by Permittees of the Owner of the
Developer Tract shall be limited to automobiles, motorcycles and pickup
trucks; no semitrailers, recreational vehicles, boats, trailers or large trucks
will be permitted to park in the City Tract Parking Lot Area; there shall be no
overnight parking, except that overnight parking shall be permitted on the
City Tract by Permittees of the Owner of the City Tract.
3.1.5 The Owner of the Developer Tract shall use good faith, commercially
reasonable efforts to require that all employees of its Occupants park on the
Developer Tract and not in the City Tract Parking Lot Area.
3.1.6 The Owner of the Developer Tract shall pay its proportionate share of the
costs of repairs, maintenance and replacement of the Developer Tract
Parking Lot Area as provided in Section 6.5.
3.2. Developer Tract Parking. The Owner of the Developer Tract, for itself and its
successors and assigns, hereby grants and conveys to the Owner of the City Tract
for its use and for the use of its Permittees, in common with others entitled to use
the same, a perpetual, non-exclusive easement for parking of vehicles and the
passage of vehicles and pedestrians over and across the Developer Tract Parking
Lot Area. Such easement rights shall be subject to the following reservations and
agreements as well as other provisions contained in this Agreement:
3.2.1 The Owner of the Developer Tract may at any time make changes to, close
off, and/or construct buildings and improvements on, all or any portion of
the Developer Tract Parking Lot Area without the approval of any other
Owner, so long as such change, closing or construction does not
unreasonably interfere with any of the other easements granted herein, and
further provided that all of the following conditions are met:
3.2.1.1 No governmental rule, ordinance or regulation shall be violated
as a result of such action, and such action shall not result in the
Owner of the City Tract being in violation of any governmental
rule, ordinance or regulation.
3.2.1.2 The number of remaining parking spaces on the Developer Tract
shall be at least 24 parking spaces.
3.2.1.3 No change shall be made in the access point to Cameo Avenue.
3.2.1.4 At least 30 days prior to making any such substantial change,
modification or alteration, the Owner of the Developer Tract
shall deliver to the Owner of the City Tract copies of the plans
therefor.
3.2.2 The Owner of the Developer Tract reserves the right to close off any
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438026 RS230-60
portion of the Developer Tract Parking Lot Area for such reasonable
period of time as may be necessary to make needed repairs or as may be
legally necessary, in the opinion of such Owner's counsel, to prevent the
acquisition of prescriptive rights by anyone; provided however, that prior
to closing off any portion of the Developer Tract Parking Lot Area
materially and adversely affecting parking on the City Tract, the Owner of
the Developer Tract shall give written notice to the Owner of the City
Tract of its intention to do so, and shall attempt to coordinate such closing
with the Owner of the City Tract so that no unreasonable interference shall
occur.
3.2.3 The Owner of the Developer Tract reserves the right at any time and from time
to time to exclude and restrain any Person who is not a Permittee from using
the Developer Tract Parking Lot Area.
3.2.4 Parking in the Developer Tract Parking Lot Area by Permittees of the Owner
of the City Tract shall be limited to automobiles, motorcycles and pickup
trucks; no semitrailers, recreational vehicles, boats, trailers or large trucks
will be permitted to park in the Developer Tract Parking Lot Area; there shall
be no overnight parking, except that overnight parking shall be permitted on
the Developer Tract by Permittees of the Owner of the Developer Tract.
3.2.5 The Owner of the City Tract shall use good faith, commercially reasonable
efforts to require that all employees of its Occupants park on the City Tract
and not in the Developer Tract Parking Lot Area.
3.2.6 The Owner of the City Tract shall pay its proportionate share of the costs
of repairs, maintenance and replacement of the City Tract Parking Lot
Area as provided in Section 6.5.
3.3. City Tract Driveway Easement. The Owner of the City Tract, for itself and its
successors and assigns, hereby grants and conveys to the Owner of the Developer
Tract for its use and the use of its Permittees, in common with others entitled to
use the same, a perpetual, non-exclusive easement for the passage of vehicles and
pedestrians over and across the City Tract Shared Driveway Area. Such easement
rights shall be subject to the following reservations and agreements as wells as
other provisions contained in this Agreement.
3.3.1 The Owner of the City Tract may make minor changes and improvements
to the City Tract Shared Driveway Area without the approval of the
Owner of the Developer Tract, so long as such change or improvement
does not unreasonably interfere with any of the easements granted in
Section 3.3, and further provided that all of the following conditions are
met:
3.3.1.1 The accessibility of the Developer Tract Shared Driveway Area is
not unreasonably restricted or hindered.
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438026 RS230-60
3.3.1.2 No governmental rule, ordinance or regulation shall be violated as
a result of such action, and such action shall not result in the
Owner of the Developer Tract being in violation of any
governmental rule, ordinance or regulation.
3.3.1.3 At least 30 days prior to making any change, modification or
alteration to the City Tract Shared Driveway Area, the Owner of
the City Tract shall deliver to the Owner of the Developer Tract
copies of the plans therefor.
3.3.2 The Owner of the City Tract reserves the right to close off any portion of
the City Tract Shared Driveway Area for such reasonable period of time as
may be necessary to make needed repairs or as may be legally necessary,
in the opinion of such Owner's counsel, to prevent the acquisition of
prescriptive rights by anyone; provided however, that prior to closing off
any portion of the City Tract Shared Driveway Area, the Owner of the
City Tract shall give written notice to the Owner of the Developer Tract of
its intention to do so, and shall attempt to coordinate such closing with the
Owner of the Developer Tract so that no unreasonable interference shall
occur.
3.4. Developer Tract Driveway Easement. The Owner of the Developer Tract, for
itself and its successors and assigns, hereby grants and conveys to the Owner of
the City Tract for its use and the use of its Permittees, in common with others
entitled to use the same, a perpetual, non-exclusive easement for the passage of
vehicles and pedestrians over and across the Developer Tract Shared Driveway
Area. Such easement rights shall be subject to the following reservations and
agreements as well as other provisions contained in this Agreement.
3.4.1 The Owner of the Developer Tract may make minor changes and
improvements to the Developer Tract Shared Driveway Area without the
approval of the Owner of the City Tract, so long as such change or
improvement does not unreasonably interfere with any of the easements
granted in Section 3.4, and further provided that all of the following
conditions are met:
3.4.1.1 The accessibility of the City Tract Shared Driveway Area is not
unreasonably restricted or hindered.
3.4.1.2 No governmental rule, ordinance or regulation shall be violated
as a result of such action, and such action shall not result in the
Owner of the City Tract being in violation of any governmental
rule, ordinance or regulation.
3.4.1.3 At least 30 days prior to making any change, modification or
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438026 RS230-60
alteration to the Developer Tract Shared Driveway Area, the
Owner of the Developer Tract shall deliver to the Owner of the
City Tract copies of the plans therefor.
3.4.2 The Owner of the Developer Tract reserves the right to close off any
portion of the Developer Tract Shared Driveway Area for such reasonable
period of time as may be necessary to make needed repairs or as may be
legally necessary, in the opinion of such Owner's counsel, to prevent the
acquisition of prescriptive rights by anyone; provided however, that prior
to closing off any portion of the Developer Tract Shared Driveway Area,
the Owner of the Developer Tract shall give written notice to the Owner of
the City Tract of its intention to do so, and shall attempt to coordinate such
closing with the Owner of the City Tract so that no unreasonable
interference shall occur.
3.5. Pedestrian Link. Each of the Owners of the City Tract and the Developer Tract,
for themselves and their successors and assigns, hereby grants and conveys to the
other such Owner for its use and the use of its Permittees, in common with others
entitled to use the same, a perpetual, non-exclusive easement for the passage of
pedestrians over and across the Pedestrian Link Corridor Area of the grantor
Owner's Tract. Such easement rights shall be subject to the following
reservations and agreements as well as other provisions contained in this
Agreement:
3.5.1 Once constructed, no Owner shall make any changes, modifications or
alterations to the Pedestrian Link except as provided in subsection 4.2.
3.5.2 Each Owner of the Pedestrian Link Corridor Area reserves the right to
close off its portion of the Pedestrian Link Corridor Area for such
reasonable period of time as may be necessary to make needed repairs or
as may be legally necessary, in the opinion of such Owner's counsel, to
prevent the acquisition of prescriptive rights by anyone; provided
however, that prior to closing off any portion of the Pedestrian Link
Corridor Area, such Owner shall give written notice to the other Owner
thereof of its intention to do so, and shall attempt to coordinate such
closing with such other Owner so that no unreasonable interference shall
occur.
3.5.3 Each Owner of the Pedestrian Link Corridor Area reserves the right at any
time and from time to time to exclude and restrain any Person who is not a
Permittee from using the Pedestrian Link Corridor Area on its Tract.
3.5.4 No Permittee shall be charged for the right to use the Pedestrian Link
Corridor Area.
3.5.5 The Pedestrian Link shall be used only as a pedestrian walkway.
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438026 RS230-60
3.6. Temporary Access for Construction. City, for itself, its successors and assigns,
hereby grants and conveys to Developer, a temporary, non-exclusive access easement
over and across such portions of the City Tract as is reasonably necessary for
Developer to construct the Pedestrian Link in accordance with and pursuant to the
terms of the Development Agreement.
3.7. General Access for Maintenance and Repairs. Each Owner, for itself and its
successors and assigns, hereby grants and conveys to each other Owner having an
easement over the grantor Owner's Tract a perpetual, non-exclusive easement over
the granting Owner's Tract for the purpose of access to and repairing and/or
maintaining any of the easement improvements that are located on the granting
Owner's Tract but that, pursuant to the provisions of this Agreement, may be repaired
and/or maintained by the grantee Owner. Nothing contained in this subsection shall
prevent any granting Owner from at any time making changes to, closing off, and/or
constructing buildings and improvements on any portion of its Tract not covered by
the easements described in Section 3 so long as (a) the other Owners continuously
have reasonable use of the easements described herein that are located on the granting
Owner's Tract, and (b) such changes, closing and/or construction do not violate any
other provisions of this Agreement.
3.8. Access to Certain Buildings. Each Owner, for itself and its successors and assigns,
hereby grants and conveys to each other Owner a perpetual, non-exclusive easement
over any portion of the granting Owner's Tract that is located within 10 feet of a
building on the other Owner's Tract, if any, for the purpose of access to and repairing
and/or maintaining the exterior of such building (including, without limitation, the
Pedestrian Link); however, the existence of this easement shall not prohibit or restrict
the granting Owner from constructing buildings, structures or other improvements
within such 10 foot area, in which case the grantee Owner's easement shall not apply
to the extent such 10 foot area is occupied by a building, above-grade structure or
other improvement.
3.9. Restriction. No Owner shall grant any utility easement for the benefit of any property
not within the City Tract or the Developer Tract; provided however, that the
foregoing shall not prohibit the granting or dedicating of utility easements by an
Owner on its Tract to governmental or quasi-governmental authorities or to public
utilities; and provided further, that any Owner may grant a private utility easement to
any Person so long as (a) the area of such easement is confined to the granting
Owner's Tract and (b) such easement does not include any connection to any
common utility lines.
4. Pedestrian Link
4.1. Design. The Pedestrian Link is to be designed and constructed in accordance with
and pursuant to the plans and specifications approved by City under the
Development Agreement.
4.2. Modifications. No change, modification or alteration in the Pedestrian Link or the
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438026 RS230-60
location of the Pedestrian Link Corridor Area may be made by any Owner thereof
without the prior approval of the other Owner thereof, provided that each such
Owner may make minor non-structural changes to the Pedestrian Link on its Tract
that do not affect the exterior physical appearance of the Pedestrian Link without
the consent of such other Owner, provided that all of the following conditions are
met:
4.2.1 The accessibility of the Pedestrian Link Corridor Area for pedestrian
access is not unreasonably restricted or hindered.
4.2.2 No governmental rule, ordinance or regulation shall be violated as a result
of such action, and such action shall not result in any other Owner being in
violation of any governmental rule, ordinance or regulation.
4.2.3 No change shall be made in the access points between the Pedestrian Link
and the Senior Housing Facility or the Pedestrian Link and the Activity
Center.
4.2.4 At least 30 days prior to making any such change, modification or
alteration, the Owner desiring to do such work shall deliver to such other
Owner copies of the plans therefor.
Notwithstanding the foregoing, the Owner of the City Tract, may, without the
prior written consent of the other Owner, make changes, modifications or
alterations to the Pedestrian Link on its Tract provided an enclosed pedestrian
access shall be maintained between the Activity Center and the Senior Housing
Facility. Each such Owner shall have the right, subject to all applicable laws and
the easements and agreements described in this Agreement, to design and
construct or expand existing structures on its Tract (other than the Pedestrian
Link); provided, however, that any structure so constructed or expanded shall, at a
minimum, allow for the repair, maintenance and operation of the Pedestrian Link
as contemplated hereby. In the event that an Owner constructs or expands such a
structure on its Tract that necessitates an alteration in a previously constructed
portion of the Pedestrian Link, any Pedestrian Link alteration shall be solely the
expense of the Owner doing the construction or expansion. Any modifications,
alterations or changes to the completed Pedestrian Link and connections to the
Facilities shall be made in accordance with and subject to all applicable federal,
state and local laws, codes and ordinances.
4.3. Certain Operations. The Owner of the City Tract shall be responsible for locking and
unlocking the door located in the Pedestrian Link at the common boundary between
the City Tract and the Developer Tract. Such door shall be locked at such times as
City deems appropriate in its sole discretion. The Pedestrian Link shall have passage
doors into the Activity Center and the Senior Housing Facility. Said doors shall
remain closed (other than to allow passage of pedestrians, or in the event of
emergencies) to avoid interference with efficient and proper operation of the
respective heating, ventilating and air conditioning systems located within and/or
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438026 RS230-60
serving the Pedestrian Link from the City Tract and the Developer Tract. Each Owner
shall be responsible for security in the portion of the Pedestrian Link located on its
Tract. The use of the Pedestrian Link shall be subject to such reasonable rules,
regulations and restrictions for the equitable use thereof by the Owners thereof and
their Permittees as the Owners thereof may, in their reasonable discretion, determine,
and such rules, regulations and restrictions shall be enforced in a nondiscriminatory
manner.
4.4. Utilities. Any and all utilities and services, including electricity, heating, ventilation
and air conditioning, and the equipment necessary for providing the same to the
Pedestrian Link shall be installed and provided so that the supply of such utilities and
services for the Pedestrian Link shall originate from the Tract on which that portion
of the Pedestrian Link is located. In other words, each Owner shall provide such
utilities and services from its own Tract to the portion of the Pedestrian Link located
on its Tract. The following utilities and systems will serve the Pedestrian Link:
electricity, heating, ventilating and air conditioning and security systems. Each
Owner shall operate, maintain and repair all utilities, services and systems serving the
Pedestrian Link that are located within its Tract, as well as all equipment used to
monitor such utilities, services and systems, and the costs of such operation,
maintenance and repair shall be paid by such Owner. Each Owner shall pay for all
utilities serving the Pedestrian Link on its Tract.
4.5. Ownership. Once the initial construction of the Pedestrian Link has been completed,
title to the Pedestrian Link shall vest in the Owner, its successors and assigns, of the
Tract on which the Pedestrian Link is located. In other words, each Owner shall own
and have title to all of the improvements constituting the Pedestrian Link on its Tract,
subject to the terms and conditions of this Agreement and subject to the easements
created herein.
4.6. Casualty. In the event the Pedestrian Link or any part thereof is destroyed or partially
destroyed by fire or any other casualty or occurrence, the Pedestrian Link shall be
repaired and restored by the Owner thereof as soon as possible to the extent that upon
the completion of the repair or restoration work, the Pedestrian Link, as so restored,
shall be in substantially the same condition as immediately prior to the damage or
destruction. Notwithstanding the foregoing sentence, in the event that either the
Senior Housing Facility or the Activity Center are destroyed or partially destroyed by
fire or other casualty or occurrence and the Owner thereof does not rebuild or restore
such Facility as provided in subsection 7.2 (c) (the "non-rebuilding Owner"), the
Pedestrian Link need not be restored or repaired and the same shall be promptly
demolished and removed and the ground area of the Pedestrian Link shall be restored
to a clean, sightly and landscaped condition by and at the expense of the non-
rebuilding Owner. In such event the non-rebuilding Owner shall also perform the
same work (including removal of the Pedestrian Link and ground area restoration) on
the Tract of the other Owner and restore the other Owner's Facility to a complete
architectural unit at the non-rebuilding Owner's sole cost and expense. If insurance
proceeds are insufficient to cover the expense of such repairing and restoring as
required herein, the non-rebuilding Owner shall, nonetheless, be responsible for the
repair and restoration and costs thereof. The Pedestrian Link Corridor Area easement
shall terminate only in the event of the demolition or substantial destruction of the
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438026 R5230-60
Activity Center or the Senior Housing Facility, provided, however, that if an Owner
intends to replace its Facility and the same is rebuilt within two years of any such
demolition or destruction, the easement over the Pedestrian Link Corridor Area
created herein shall remain in full force and effect. The rebuilding or restoring
Owner shall pay all construction and restoration costs related to (a) disconnecting the
Pedestrian Link from any Facility to be demolished, (b) supporting and securing of
the Pedestrian Link during demolition and/or restoration of the replacement Facility,
(c) repair or replacement of all Pedestrian Link components damaged by the
demolition of a portion of the Pedestrian Link or the damaged Facility, and (d) repair
and connection of the Pedestrian Link to the replacement Facility. The Pedestrian
Link shall be supported and maintained in good and safe condition pending
connection to the replacement Facility or restoration. If construction of a
replacement Facility has not been commenced within two (2) years from the date of
demolition or destruction, the easement granted herein over the Pedestrian Link
Corridor Area shall terminate on the second anniversary of the demolition or
destruction unless otherwise agreed to by the Owners of the Pedestrian Link.
5. Demolition and Construction
5.1. General Requirements. Each Owner agrees that all demolition and construction
activities performed by it within the Easement Areas shall be performed in
compliance with all laws, rules, regulations, orders, and ordinances of the city,
county, state, and federal governments, or any department or agency of any of
them, affecting improvements constructed within the Easement Areas. Each
Owner further agrees that neither its demolition nor its construction activities
shall do any of the following:
5.1.1 Unreasonably interfere with demolition or construction work being
performed on any other part of the Easement Areas.
5.1.2 Unreasonably interfere with the use, occupancy or enjoyment of any part
of the remainder of the Facilities by any other Owner or its Permittees.
5.1.3 Cause any other Owner to be in violation of any law, rule, regulation,
order or ordinance applicable to its Tract of the city, county, state, federal
government, or any department or agency of any of them.
5.2. Pedestrian Link Construction. Developer shall be solely responsible for the
construction of the Pedestrian Link in accordance with and pursuant to the terms
of the Development Agreement. However, City shall have the right to monitor
and inspect the construction and construction methods performed on its Tract, and
Developer shall use all reasonable efforts to insure that such construction does not
unreasonably interfere with access to and the activities of City and its Permittees
in the Activity Center. Developer shall coordinate and cooperate with the City in
all construction activities on the City Tract to insure minimal interference and
damage to the improvements on the City Tract. Developer shall be solely
responsible for repairing and restoring any damage to the improvements located
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438026 RS230-60
on the City Tract caused by or occurring during such construction. Developer
warrants to the City that (a) the Pedestrian Link will be constructed and installed
in a good and workmanlike manner without material defects and in accordance
with all applicable federal, state and local laws, codes and ordinances and using
only all new materials and equipment, and (b) the Pedestrian Link and facilities
and improvements to be installed and/or constructed by or under Developer will
be free from material defects for a period of one year beginning 30 days following
the issuance of a certificate of occupancy for the Pedestrian Link. If any work is
found to be defective within said one year period, Developer shall correct, repair
and restore such work at its sole cost and expense. Developer warrants to the City
that the construction of the Pedestrian Link shall not result in damage or injury to
the improvements on the City Tract, other than the work necessarily required for
connection of the Pedestrian Link to the Activity Center, which Activity Center
shall be restored to substantially the same condition they were in prior to the
performance of said work. Notwithstanding the provisions of Section 9 hereof to
the contrary, during the construction of the Pedestrian Link, Developer (and not
the City) shall procure and maintain builder's All-Risk casualty insurance on the
improvements being constructed by Developer, and otherwise maintain in force
and effect the insurance required to be obtained by it as provided in the
Development Agreement.
5.3. Indemnity. Each Owner agrees to defend, indemnify and hold harmless each
other Owner from all claims, actions, proceedings and costs incurred in
connection therewith (including reasonable attorneys' fees and costs of suit)
resulting from any personal injury, death or property damage whatsoever
occurring to any Person or to the property of any Person arising out of or resulting
from the performance of any demolition and/or construction activities performed
by and on behalf of such indemnifying Owner, except to extent claims in respect
thereto are waived or released herein. The indemnification contained in this
subsection 5.3 shall not-include an indemnity for any consequential damages.
Nothing in this Agreement shall be deemed a waiver by the City of the limitations
on liability provided for by Minnesota Statutes, Chapter 466.
6. Maintenance and Repair
6.1. General Responsibility for Maintenance. Except as may be expressly provided
otherwise in this Section 6, each Owner shall repair and maintain all of the
portions of the Easement Areas located on its Tract in good order, condition and
repair, including capital repairs and any repairs necessitated by fire or other
casualty. Such maintenance shall include keeping, and each Owner hereby
covenants and agrees to keep, all of the portions of the Easement Areas located on
its Tract fully illuminated each day from dusk until dawn, 7 days a week. All
repairs and maintenance to be performed by an Owner pursuant to this subsection
shall be performed at such Owner's sole expense, except as may be expressly
provided otherwise in this Agreement.
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438026 RS230-60
6.2. Standards for Maintenance. The minimum standard of maintenance for the
Easement Areas shall be comparable to the standard of maintenance followed in
first-class housing and public facilities of comparable size in the Minneapolis/St.
Paul metropolitan area, and in any event in compliance with all applicable
governmental laws, rules, regulations, orders and ordinances, and the provisions
of this Agreement. The Easement Area improvements shall be repaired or
replaced with materials at least equal to the original quality of the materials being
repaired or replaced. The maintenance and repair obligation for the parking and
driveways in any event shall include but not be limited to the following:
6.2.1 Road, Driveway and Access Areas. Maintaining all paved surfaces and curbs
in a smooth and evenly covered condition which maintenance work shall
include cleaning, sweeping, restriping, repairing, resurfacing and overlays.
6.2.2 Debris and refuse. Periodic removal of all papers, debris, filth, refuse, ice
and snow to the extent necessary to keep the area in a first-class, clean and
orderly condition.
6.2.3 Sign and markers. Placing, keeping in repair, replacing and repainting any
appropriate directional signs or markers.
6.2.4 Lighting. Operating, keeping in repair, cleaning and replacing when
necessary any lighting facilities.
The maintenance and repair obligation for the Pedestrian Link in any event shall
include but not be limited to the following:
6.2.5 Corridor. Maintaining all pedestrian ways and corridors in a smooth and
evenly covered condition, which maintenance work shall include cleaning,
sweeping, recarpeting, retiling and resurfacing. All corridors, doors and glass
shall be periodically cleaned.
6.2.6 Signage and Exits. Maintaining, repairing and replacing all directorial
signs and emergency exit signage.
6.2.7 Structure. Maintaining, repairing and replacing when necessary the
Pedestrian Link, its structural components, roof, drainage facilities and
access doors and windows.
6.2.8 HVAC. Maintaining, repairing and replacing when necessary all heating,
ventilation and air conditioning systems.
6.2.9 Lighting and Security. Maintaining, repairing and replacing when
necessary all lights in the Pedestrian Link, including emergency lighting,
and all security systems.
6.3. Payment for Negligence. Notwithstanding the provisions of subsection 6.1
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438026 R5230-60
(entitled "General Responsibility for Maintenance"), but subject to the provisions
of subsection 9.4 (entitled "Waiver of Subrogation"), in the event any
Parking/Driveway Area or the Pedestrian Link located on an Owner's Tract are
damaged or destroyed as a result of the negligence or willful misconduct by
bother O Or its contractors, agents, servants, or employees, the Owner who
UI en � S�Vants, or employees) caused such damage or
s
,r „ -Wt1$ the Tract On which the damag�
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,
(entitled "General Responsibility for Maintenance"), but subject to the provisions
of subsection 9.4 (entitled "Waiver of Subrogation"), in the event any
Parking/Driveway Area or the Pedestrian Link located on an Owner's Tract are
damaged or destroyed as a result of the negligence or willful misconduct by
another Owner or its contractors, agents, servants, or employees, the Owner who
(or whose contractors, agents, servants, or employees) caused such damage or
destruction shall reimburse the Owner who owns the Tract on which the damage
or destruction occurred for the reasonable cost of the repair of such damage or
destruction.
6.4. General Easement Repair Provisions. In addition to any other provisions of this
Agreement, any Owner entering another Owner's Tract to perform maintenance
or repair pursuant to this Agreement shall comply with the following: (a) any such
maintenance and repair shall be performed in such a manner as to cause as little
disturbance in the use of the Tract where the repairs and maintenance are being
performed as is practicable under the circumstances; (b) the Owner performing
such repair and maintenance shall promptly pay all costs and expenses associated
with any such repair and maintenance, subject to any provisions for
reimbursement which may be expressly contained in this Agreement; (c) the
Owner performing such repair and maintenance shall diligently complete such
work as quickly as possible; and (d) the Owner performing such repair and
maintenance shall promptly clean and restore the affected portion of the easement
area to a condition equal to or better than the condition which existed prior to the
commencement of such work.
7. Building Improvements
7.1. Standards of Maintenance. After completion of construction, each Owner covenants
and agrees to maintain and keep the building improvements, if any, located on its
Tract in good condition and state of repair, in compliance with all governmental laws,
rules, regulations, orders, and ordinances exercising jurisdiction thereover.
7.2. Casualty. In the event any of the building improvements, other than the Pedestrian
Link, are damaged by fire or other casualty (whether insured or not), or if a building
on a Tract is being torn down or demolished, the Owner upon whose Tract such
building improvements are located immediately shall remove the debris resulting
from such event and provide a sightly barrier and within a reasonable time thereafter
shall either (a) repair or restore the building improvements so damaged or
demolished, or (b) erect other building improvements or improvements in such
location, or (c) demolish the damaged portion of such building improvements,
remove all debris, and restore the area to an attractive condition. Such Owner shall
have the option to choose which of the foregoing alternatives to perform, but such
Owner shall be obligated to perform one of such alternatives. Notwithstanding the
foregoing to the contrary, the Owner of the Developer Tract may not elect (c) unless
such Owner shall pay to the City all costs and expenses paid by the City for the
demolition, removal and site restoration of the Pedestrian Link on its Tract. If such
payment is not timely paid to the City by the Owner of the Developer Tract, the
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Owner of the Developer Tract shall perform the work as described in either (a) or (b)
of this paragraph.
8. [Intentionally Omitted]
9. Insurance
9.1. Liability Insurance. Each Owner shall maintain or cause to be maintained in full
force and effect with respect to its Tract Commercial General Liability Insurance in
the amount of at least $1,000,000 per occurrence, $1,500,000 aggregate for bodily or
personal injury or death and for property damage. Such insurance shall include a
provision for severability of interests.
9.2. Casualty Insurance. Each Owner shall maintain or cause to be maintained in full
force and effect property insurance with All-Risk coverage including but not limited
to casualty, loss or damage by fire, lightning, windstorm, hail, collapse, explosion,
riot, vandalism, civil commotion, aircraft, vehicle, smoke and other such hazards
covering the Pedestrian Link on the Owner's Tract in the amount of the full
replacement value thereof, and with a demolition and increased cost of construction
endorsement during any reconstruction period or during modifications, alterations or
changes to the Pedestrian Link (hereinafter the "Property Insurance Policy"). During
any period of Pedestrian Link reconstruction, alteration or modification activity, the
constructing Owner shall carry such Property Insurance Policy in Builder's Risk form
or comparable coverage written on a completed value basis, and shall include broad
form contractual liability, products/completed operations, independent contracts,
broad form property damage, personal injury, and with "X", "C" and "U" exclusions
deleted.
9.3. Indemnity. Subject to the provisions of subsection 9.4 (entitled "Waiver of
Subrogation"), each Owner ("Indemnitor") covenants and agrees to indemnify,
defend and hold harmless each other Owner ("Indemnitee") from and against all
claims, costs, expenses and liability (including reasonable attorneys' fees and cost of
suit incurred in connection with all claims) arising from or as a result of the injury to
or death of any Person, or damage to the property of any Person, that is caused by the
negligence or willful act of such Indemnitor or its contractors, agents, servants, or
employees. Nothing in this paragraph shall be deemed a waiver by the City of the
limitations on liability provided for by Minnesota Statutes, Chapter 466.
9.4. Waiver of Subrogation. Notwithstanding anything to the contrary contained in this
Agreement, each Owner (the "Releasing Owner") hereby releases and waives for
itself and on behalf of its insurer, any other Owner (the "Released Owner") from any
liability for any loss or damage to all property of such Releasing Owner located upon
any portion of its Tract, which loss or damage is of the type generally covered by
property insurance provided under the Comprehensive Replacement Cost Form,
irrespective either of any negligence on the part of the Released Owner which may
have contributed to or caused such loss, or of the amount of such insurance required
or actually carried. Each Owner agrees to use its best efforts to obtain, if needed,
appropriate endorsements to its policies of insurance with respect to the foregoing
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release; provided, however, that failure to obtain such endorsements shall not affect
any release given pursuant to this subsection.
9.5. General Requirements. The insurance required by this Section shall specifically
extend to contractual obligations of the insured party arising out of the
indemnification obligations set forth in this Agreement. Such insurance may be
carried under a blanket policy or policies which include other liabilities, properties
and locations of such Owner. All insurance required by this Section shall be
procured from financially responsible insurance companies licensed to do business in
the state of Minnesota.
10. Taxes and Assessments
Each Owner shall be responsible for paying all taxes and assessments relating to its Tract and
the buildings and improvements located thereon.
11. Liens
In the event any mechanic's lien is filed against the Tract of one Owner as a result of services
performed or materials furnished for the use of another Owner, the Owner for whose benefit
such services were performed or materials were furnished agrees to cause such lien to be
discharged prior to entry of final judgment (after all appeals) for the foreclosure of such lien
and further agrees to indemnify, defend, and hold harmless the other Owner and its Tract
against liability, loss, damage, costs or expenses (including reasonable attorneys' fees and
cost of suit) on account of such claim of lien. Upon request of the Owner whose Tract is
subject to such lien, the Owner for whose benefit such services were performed or materials
were furnished agrees to cause such lien to be released and discharged of record within 14
days after the filing of such lien, either by paying the indebtedness which gave rise to such
lien or by posting bond or other security as shall be required by law to obtain such release
and discharge; if the Owner for whose benefit such services were performed or materials
were furnished fails to obtain such release and discharge within such 14 day period, the
Owner of the Tract against which such lien was recorded may cause such lien to be released
and discharged of record, either by paying the indebtedness that gave rise to such lien or by
posting bond or other security as shall be required by law to obtain such release and
discharge, in which case the Owner for whose benefit such services were performed or
materials were furnished shall immediately upon demand reimburse the Owner of such Tract
for all costs and expenses incurred in connection with obtaining such release and discharge.
Nothing in this Agreement shall prevent an Owner for whose benefit such services were
performed or materials were furnished from contesting the validity of such lien in any
manner such Owner chooses so long as such contest is pursued with reasonable diligence. In
the event such contest is determined adversely (allowing for appeal to the highest appellate
court), such Owner shall promptly pay in full the required amount, together with any interest,
penalties, costs, or other charges necessary to release such lien. Notwithstanding anything
herein to the contrary, the cost of the initial construction of the Pedestrian Link, and any liens
resulting therefrom, shall be fully paid by Developer. Notwithstanding any provision of this
Agreement to the contrary, Developer shall indemnify, defend and hold harmless the City
and the City Tract from all mechanics' liens, claims, actions, proceedings and costs incurred
in connection therewith (including reasonable attorneys' fees and costs of suit) resulting from
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the construction and installation of the Pedestrian Link, and any warranty work performed by
or under Developer, on the City Tract.
12. Consents
Unless expressly provided otherwise in this Agreement, whenever consent is required in
this Agreement, such consent shall not be unreasonably withheld or delayed. Unless
provision is made for a specific time period, consent shall be given or withheld within 30
days of the receipt of the request for consent. If a notice that consent will be refused is
not given within the required time period, the requested Owner shall be deemed to have
given its consent. If an Owner shall refuse consent, the reasons therefor shall be stated.
Except with respect to a consent given by lapse of time, all consents and refusals to
consent shall be in writing. Any right to consent contained in this Agreement shall be
held by the Owner owning the Tract to which such right relates. Any purchaser of any
Tract shall automatically acquire any right to consent at such time as such purchaser
becomes an Owner, unless the selling Owner (a) conveys less than all of its ownership
interest in the Tract and (b) provides in writing, either in the deed conveying a portion of
its ownership interest in the Center or in another agreement executed by the selling
Owner and recorded in the Dakota County Registrar of Deeds or Registrar of Title's
office prior to or -simultaneously with such deed, that such selling Owner retains the
right or rights of consent described in such instrument. Until a purchaser becomes an
Owner, and only to the extent the selling Owner does not so retain any right to consent,
all rights to consent associated with such Tract shall remain with the selling Owner and
its heirs, successors and assigns with respect to the non-conveyed portion of the Tract.
13. Condemnation
In the event any portion of either the City Tract or the Developer Tract shall be condemned,
the award shall be paid to the Owner owning the land or the improvement taken, except that
(a) if the taking includes improvements belonging to more than one Owner, such as utility
lines, the portion of the award allocable thereto shall be used to relocate, replace or restore
such jointly owned improvements to a useful condition, and (b) if the taking includes
easement rights that are intended to extend beyond the term of the Agreement, the portion of
the award allocable to each such easement right shall be paid to the respective grantee of such
easement. In addition to the foregoing, if a separate claim can be filed for the taking of any
other property interest existing pursuant to this Agreement that does not reduce or diminish
the amount paid to the Owner owning the land or the improvement taken, then the owner of
such other property interest shall have the right to seek an award for the taking of such
interest.
14. Default
14.1. Force Majeure. The time within which any Owner to this Agreement is required
to perform any act shall be extended to the extent that performance of such act is
delayed by Force Majeure, but only if such delay was beyond that Owner's
reasonable control and was not caused by its fault or negligence. "Force Majeure"
shall mean acts of god, fire, abnormal weather, explosion, riot, war, labor
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disputes, governmental restrictions, inability to obtain necessary materials, or any
other cause beyond such Owner's reasonable control. If a delay of performance
occurs and such delay is excusable under this provision, the period for
performance shall be extended for a time equal to the time lost because of the
Force Majeure, but only if the Owner entitled to such extension give, prompt
notice to all other Owners of the occurrence causing the delay and if the Owner so
excused acts in good faith and uses due diligence to perform. The inability to
obtain financing or lack of money shall not constitute Force Majeure.
14.2. Notice; Cure. If any Owner fails to comply with any provision of this Agreement
(the "Defaulting Owner"), then any other Owner (the "Non-Defaulting Owner")
may upon 30 days' prior written notice to the Defaulting Owner, proceed to cure
the default (and shall have a license to do so) by the payment of money or
performance of some other action for the account of the Defaulting Owner. The
foregoing right to cure shall not be exercised if within the 30 day notice period (a)
the Defaulting Owner cures the default, or (b) if the default is curable, but cannot
reasonably be cured within that time period, the Defaulting Owner begins to cure
such default within such time period and diligently pursues such cure to
completion. The 30-day notice period shall not be required if, using reasonable
judgment, the Non-Defaulting Owner deems that an emergency exists that
requires immediate attention. In the event of such an emergency, the Non-
Defaulting Owner shall give whatever notice to the Defaulting Owner as is
reasonable under the circumstances. The Defaulting Owner hereby grants to the
Non-Defaulting Owner a nonexclusive easement over, across and under any and
all parts of the Defaulting Owner's Tract for all purposes reasonably necessary to
enable the Non-Defaulting Owner (or its agents, contractors or subcontractors) to
perform any of the terms, provisions, covenants or conditions of this Agreement
that the Defaulting Owner is obligated to perform but has failed to perform after
notice and the opportunity to cure pursuant to this subsection.
14.3. Reimbursement of Costs to Cure; Lien. Within 10 days after written demand
(including providing copies of invoices reflecting costs) the Defaulting Owner
shall reimburse the Non-Defaulting Owner for any amount reasonably spent by
the Non-Defaulting Owner to cure the default, together with interest on such
amount. The Non-Defaulting Owner shall have a lien upon the Defaulting
Owner's right, title, and interest in and to any portion of the Defaulting Owner's
Tract to secure payment of all amounts due to the Non-Defaulting Owner under
this subsection. The Non-Defaulting Owner shall have the right, but not the
obligation, to record its lien, but at all times its lien pursuant to this subsection
shall be subject and subordinate to (a) the lien of any mortgage or deed of trust
held by any institutional lender, or any extension, renewal, modification or
refinancing thereof, on the Defaulting Owner's Tract; (b) the leasehold estate
created by any lease of all or any part of the Defaulting Owner's Tract; (c) any
other lien of record against the Defaulting Owner's Tract as of the date that the
Non-Defaulting Owner's lien is recorded. The Defaulting Owner shall execute
such instruments and documents as the Non-Defaulting Owner may reasonably
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request to permit the recordation of such lien. The Non-Defaulting Owner shall
have the right to foreclose such lien in the manner provided by laws of the State
of Minnesota governing mechanics liens.
14.4. Estoppel. Each Owner shall, within 15 days after written request from another
Owner (but not more often than twice in any 12 month period), execute and
deliver to the requesting party an estoppel letter certifying whether or not the
certifying Owner has filed any liens, as provided in subsection 14.3, against any
Tract, and whether or not any other Owner is delinquent in any payments required
to be made to the certifying Owner pursuant to this Agreement.
14.5. Interest. Wherever and as often as one Owner shall not have paid any sum payable
hereunder to another Owner within five days of the due date, such delinquent Owner
shall pay interest on such amount from the due date, through and including the date
such payment is received by the Owner entitled thereto, at the lesser of the following:
(a) the highest rate permitted by law to be paid on such type of obligation by the
Owner obligated to make such payment; or (b) three percent per annum in excess of
the interest rate from time to time publicly announced by U.S. Bank National
Association ("U.S. Bank"), a national banking association having its main offices in
Minneapolis, Minnesota, or its successor, as its reference rate (the "Reference Rate"),
even though U.S. Bank, or its successor, may lend funds to its customers at interest
rates that are at, above, or below the Reference Rate.
14.6. Minimization of Damages. In all situations arising out of this Agreement, all Owners
shall attempt to avoid and minimize the damages resulting from the conduct of any
other Owner. Each Owner shall take all reasonable measures to effectuate the
provisions of this Agreement.
14.7. Agreement Shall Continue Notwithstanding Breach. It is expressly agreed that no
breach of this Agreement shall (a) entitle any Owner to cancel, rescind, or otherwise
terminate this Agreement, or (b) defeat or render invalid the lien of any mortgage or
deed of trust made in good faith and for value as to any part of a Tract; however, such
limitation shall not affect in any manner any other rights or remedies that an Owner
may have under this Agreement by reason of any such breach.
15. Notices
All notices given under this Agreement shall be in writing and shall be sent postage
prepaid by either (a) United States certified mail, return receipt requested, or (b) for
delivery on the next business day with a nationally-recognized express courier. All such
notices shall be sent to the following addresses, until such addresses are changed by 30
days' notice:
To City: City of Rosemount
2875 — 145th Street W
Rosemount, MN 55068
Attn: City Administrator
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438026 RS230-60
To Developer: Rosemount Senior Living Associates I, LLC
Notices shall be deemed given as of the date such notice is postmarked, if sent by
certified mail, or is placed with an express courier, if sent by express courier. If the last
day for giving any notice or taking any action required or permitted under this Agreement
would otherwise fall on a Saturday, Sunday, or legal holiday, that last day shall be
postponed until the next legal business day.
16. Miscellaneous
16.1. Liability Limitation. Notwithstanding any provisions of this Agreement to the
contrary, including without limitation the indemnifications and agreements described
in subsections 5.3, 6.3 and 9.3, and the requirements for insurance as described in
Section 9, the liability of the City under this Agreement shall be limited as provided
in Chapter 466 of Minnesota Statutes in effect from time to time, and nothing
contained in this Agreement shall be deemed to constitute a waiver of such
limitations or an agreement by the City to its increase or amend its limited liability as
described in such statutes.
16.2. Confirmation of Easements. All easements granted under this Agreement shall exist
by virtue of this Agreement, without the necessity of confirmation by any other
document. Upon the request of any Owner, each other Owner will sign and
acknowledge a document memorializing the existence (including the legal
description, location and any conditions), or the termination (in whole or in part), or
the release (in whole or in part), as the case may be and to the extent applicable, of
any easement.
16.3. Negation of Partnership. None of the terms or provisions of this Agreement shall be
deemed to create a partnership between or among the Owners in their respective
businesses or otherwise, nor shall it cause them to be considered joint venturers or
members of any joint enterprise. Each Owner shall be considered a separate Owner,
and no Owner shall have the right to act as an agent for another Owner, unless
expressly authorized to do so in this Agreement or by separate written instrument
signed by the Owner to be charged.
16.4. Not a Public Dedication. Nothing contained in this Agreement shall be deemed to be
a gift or dedication of any Tract, or of any portion of any Tract, to the general public
or for any public use or purpose whatsoever.
16.5. Entire Agreement: Enforceability. This Agreement, including any Recitals and any
attached Exhibits, all of which are made a part of this Agreement, and the
Development Agreement contains the entire agreement of the Owners concerning this
subject matter. This Agreement should be read carefully because only those terms in
writing in this Agreement are enforceable. No other terms or oral promises which are
not in this Agreement may be legally enforced, and no promises, projections,
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inducements or representations made before the Execution Date will change the terms
of this Agreement or be binding on any Owner. No promises or other terms shall be
implied in this Agreement. If there is a conflict-between the terms of this Agreement
and the Development Agreement, the terms of the Agreement will control.
16.6. Amendments. Except as provided otherwise in this Section, this Agreement may
only be amended by a written agreement signed by all of the then current Owners.
Any amendment of this Agreement shall be effective only when recorded in Dakota
County. No consent to the amendment of this Agreement shall ever be required of
any Occupant or Person other than the Owners whose consent is required pursuant to
the provisions of this Section, nor shall any Occupant or Person other than the
Owners whose consent is required pursuant to the provisions of this Section have any
right to enforce any of the provisions of this Agreement.
16.7. Binding Effect: No Third Owner Beneficiaries. This Agreement shall both bind and
benefit the parties to this Agreement and their respective heirs, personal
representatives, successors and assigns who become Owners. The Owners do not
intend that there be any third party or other beneficiaries of this Agreement. The
easements, covenants, agreements, conditions, terms, obligations, limitations and
undertakings in this Agreement shall be construed as covenants running with the
land. This Agreement is not intended to supersede, modify, amend, or otherwise
change the provisions of any prior instrument affecting the City Tract or the
Developer Tract.
16.8. Waivers: Consents. An Owner shall not be deemed to have made a waiver or consent
under this Agreement unless it does so in writing, and the mere failure of an Owner to
act to enforce any provision of this Agreement shall not be considered a waiver or
consent and shall not prevent that Owner from enforcing any provision of this
Agreement in the future. Any waiver or consent under this Agreement shall apply
only to the matter expressly waived or consented to, and shall not be deemed to be a
waiver of or consent to any subsequent breach or of any other provision of this
Agreement.
16.9. Time of the Essence. Time is of the essence with respect to all matters provided in
this Agreement.
16.10. Severability. The invalidity or unenforceability of one provision of this Agreement
will not affect the validity or enforceability of the other provisions.
16.11. Captions. The section numbers and captions are inserted only as a matter of
convenience, and do not in any way define, limit, or describe the scope or intent of
this Agreement. Any references in this Agreement to a Section or subsection shall
refer to such Section or subsection of this Agreement, unless expressly provided
otherwise.
16.12. Interpretation of"including" and "day". Wherever the word "including" is used in
this Agreement, or in any recital or exhibit to this Agreement, it shall mean
"including without limitation." Wherever the word "day[s]" is used in this
Agreement, or in any recital or exhibit to this Agreement, and the word "business"
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438026 RS230-60
does not appear immediately before such word, such word shall mean "calendar
day[s]."
16.13. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and all of which together shall constitute one and
the same instrument.
17. No Offer
The submission of this Agreement for examination and negotiation does not constitute an
offer to enter into an agreement, and this Agreement shall not be binding on any party
until it is executed and delivered by each party to this Agreement.
The City and Developer have signed this Agreement below as of the Execution Date.
CITY OF ROSEMOUNT
By:
William Droste, Mayor
And by:
Dwight Johnson, City Administrator
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
This instrument was acknowledged before me on, , 201 , by William Droste
and Dwight Johnson, the Mayor and City Administrator, respectively, of the City of Rosemount,
a Minnesota municipal corporation, on behalf of the City.
Notary Public
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438026 RS230-60
ROSEMOUNT SENIOR LIVING
ASSOCIATES I, LLC
By:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF )
This instrument was acknowledged before me on, 20 , by
, the of Rosemount Senior Living Associates I, LLC ,
a Minnesota limited liability company, on behalf of the limited liability company.
Notary Public
My Commission Expires:
This Instrument was Drafted By:
Kennedy & Graven, Chartered
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
(612) 337-9300
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438026 RS230-60
EXHIBIT A TO
PARKING, ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT
Site Plan C2.0 dated 1/28/2014
Preliminary plat needed
F-A-1
438026 RS230-60
EXHIBIT B TO
PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT
Legal description for developer tract
Legal description for city tract
F-B-1
438026 RS230-60
EXHIBIT C TO
PARKING, ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT
Easement- Shared Driveway Area- Developer/EDA
F-C-1
438026 RS230-60
EXHIBIT D TO
PARKING, ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT
Legal description for developer tract parking lot area
F-D-1
438026 RS230-60
EXHIBIT E TO
PARKING, ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT
Legal description City tract parking lot area
F-E-1
438026 RS230-60
EXHIBIT F TO
PARKING, ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT
Legal description pedestrian link corridor area
F-F-1
438026 RS230-60
EXHIBIT G TO
PARKING, ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT
Legal description for developer shared drive access
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438026 RS230-60
EXHIBIT H TO
PARKING, ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT
Legal description for city shared driveway access
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438026 RS230-60