HomeMy WebLinkAbout2.a. Pre-Park Dedication Agreement - UMORE Property4ROSEMOUNTEXECUTIVE SUMMARY
City Council Work Session Meeting: September 15, 2010
AGENDA ITEM: Pre -Park Dedication Agreement -
AGENDA SECTION:
UMORE Property
Discussion
PREPARED BY: Dan Schultz, Parks and Recreation
AGENDA NO. tj
Director
ATTACHMENTS: Concept Plan for Ball Field Project and
Pre -Park Dedication Agreement with
APPROVED BY:
University of MN
RECOMMENDED ACTION: None, discussion only.
ISSUE
Staff is continuing to work with representatives from the University of Minnesota — UMORE regarding a
pre- dedication agreement which would have the University of Minnesota pre- dedicating approximately 27
acres of land to the City of Rosemount to be used for a public park. The land that has been identified for a
future park is located south of the soccer fields at DCTC along Akron Avenue. The proposed use of the
27 acres would be for baseball and softball fields as depicted in the attached concept plan.
The main components of the agreement include the University of Minnesota agreeing to dedicate 27 acres
of park land to the City prior to the development of their property. The University will then be provided
22.78 acres of park dedication credits (27 acres minus 4.22 acres of right of way) to use towards their
future parks dedication requirements for new development. They will be allowed to use the land credit for
up to thirty percent (30 %) (or such greater percentage as the parties may agree to) of the land dedication
requirement in any subdivision (unless a lower percentage is agreed to by the University), until the Land
Area Credit is exhausted. The University is also providing the City a location for a temporary parking
lot and access to the dedicated land via Akron Avenue, which is a private road south of County Road 42,
that is currently owned by the University.
We are coming closer to agreeing on the pre - dedication agreement but there are still a few outstanding
issues that are being worked through. These include:
1. We had asked that additional language be added that would allow other public uses of the land being
dedicated. What we had in mind was nothing different than is sometimes done as an incidental use of
park property, not affecting the primary use of the park. This would involve projects involving small land
areas such as a lift station, antenna tower, or water tower. The language change from "other purposes" to
"other active recreational purposes" would seem to preclude such uses.
2. In section 7 of the agreement, there is provision for real estate taxes and special assessments to be
prorated to the date of closing. We assume that the property is tax exempt and will be tax exempt in the
hands of the City. The City would expect the University to be responsible for all levied or pending special
assessments.
3. The parking license agreement, and the access and utility licenses raised a few questions. The City is
somewhat concerned about the parking license agreement provision that required annual pre - approval of
scheduling of parking. In the access and utility license agreement, the City had not expected to see a
requirement that it be responsible for some of the costs of maintaining the road that will provide access to
the ball fields while it is still a University road. We need to know what the City's expected cost would be
for the maintenance.
4. The access and utility license agreement imposes substantial environmental responsibilities on the
City. We can understand that the University does not wish to assume any responsibility for the activities
of the City. However, in paragraph 4.1 it provides that the City shall "ensure that others do not" violate
environmental laws on the property. We do not see how the City can assume responsibility for ensuring
the conduct of others, and request that the words "and shall ensure that others do not" be deleted from
the first line in paragraph 4.1.
BACKGROUND
For the past several months, City staff and representatives of UMORE have been discussing a plan for the
University of Minnesota to pre - dedicate park land on the UMORE property. The concept plan for the
park identifies one large baseball field and a group of four softball/baseball fields. The plan also identifies
a large parking lot, trails, batting cages, concessions building, storage garage, plaza and stadium seating
area.
The Parks and Recreation Commission has reviewed this information and supported the pre - dedication
agreement as long as there are no major changes take place with the language of the agreement.
SUMMARY
Staff would like for the City Council to review and discuss the pre - dedication agreement.
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AGREEMENT
THIS AGREEMENT (the "Agreement ") is made as of the Effective Date between
Regents of the University of Minnesota, a Minnesota constitutional corporation ( "University "),
and the City of Rosemount, a Minnesota municipal corporation ( "City ").
Background
The University and the City have identified approximately 27 acres of land owned by
the University and situated in the City of Rosemount as a location for the construction by the
City of baseball and softball fields and other public improvements. The land (the `Ballfield
Site ") is legally described in Exhibit A.
The University owns, and anticipates subdividing and developing, other University
property (the "University Development Site ") in the vicinity of the Ballfield Site in the future.
The University Development Site and the Ballfield Site are together legally described in
Exhibit B.
Pursuant to the provisions of Minnesota Statutes, Section 462.358, the City has adopted
ordinances requiring that a reasonable portion of subdivided land be dedicated to public use or
that the subdivider make a payment in lieu of a land dedication.
In order to facilitate City's desired development of the Ballfield Site, the University is
willing to convey the Ballfield Site to the City now on the terms and conditions stated below
rather than waiting to make the conveyance at the time the University subdivides the
University Development Site in the future.
Agreements
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth,
University and City agree as follows:
1. Conveyance of Property.
1.1. Subject to the terms and conditions of this Agreement, for one dollar ($1.00)
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the University agrees to convey to the City for public parks, playground and
other active recreational purposes, and the City agrees to accept from the University for such
purposes, all of University's right, title and interest in and to the Ballfield Site, subject to a
Permanent Easement granted by the University to Minnesota State Colleges and Universities
on February 1, 2010, recorded on February 2, 2010 as Document Number 27118565 in the
Office of the Dakota County Recorder and other restrictions and easements of record as of the
date of this Agreement, if any. The University shall have the right to review and comment on
the City's plans for the initial development of the Ballfield Site, including the landscape and
lighting plans. Unless otherwise agreed, the City shall construct and operate the facilities on
the Ballfield Site in substantially the same manner in which it constructs and operates
comparable facilities in the City. In the event the Ballfield Site has not been developed and
placed in service as a public park or playground by the City within eight (8) years of the
Closing, the University shall have the right to require the City to convey the Ballfield Site back
to the University for $1.00 unless the University has earlier made use of the credit toward
satisfaction of the City's park dedication requirements in accordance with Section 2 hereof.
The provisions of this Section 1 shall survive the Closing.
1.2. At Closing, the University will execute and deliver to the City separate licenses
for temporary parking purposes and for right of way and utility purposes in the forms attached
hereto as Exhibits C and D.
2. Consideration for the Conveyance of Property. It is the intention of the parties that the
land area of the Ballfield Site shall be credited against the future obligation of the University to
dedicate land in connection with the future subdivision of the University Development Site.
Therefore, in consideration for the University's conveyance of the Ballfield Site to the City for
public parks, playground and other active recreational purposes, the City agrees that if the
University, its successors or assigns apply to the City for the subdivision of any part of the
University Development Site, and if in connection with that subdivision the City requires
under applicable law that such subdivider dedicate land for public use, the subdivider shall
have a credit for 22.78 acres of the area of the Ballfield Site (the "Land Area Credit "). The
Land Area Credit may be allocated and applied as directed by the University, its successors
and assigns in connection with the subdivision of any part of the University Development Site
subject to the following restrictions:
a. The City may require dedication of land in any subdivision; provided, however,
that the University will be allowed to use the Land Area Credit for thirty percent
(30 %) (or such greater percentage as the parties may agree) of the land
dedication requirement in any subdivision (unless a lower percentage is agreed
to by the University), until the Land Area Credit is exhausted.
b. No credit against park dedication requirements will be allowed for any
subdivision without written instructions executed by a duly authorized officer or
agent of the University.
The credit shall not expire until used, except that, if the City is required to reconvey the
Ballfield Site to the University pursuant to Section 1 hereof, the credit shall be void. The City
acknowledges that, in applying the credit, there must be an essential nexus between the amount
of land dedicated and the fees received in lieu of dedication and the municipal purposes sought
to be achieved by the fee or dedication and that there will be rough proportionality to the need
created by the subdivision to which the credit will be applied. The provisions of this Section 2
shall survive the Closing.
3. Closing. The closing of the transaction contemplated by this Agreement (the
"Closing ") shall occur within fifteen (15) days following written notice from the City to the
University that the City has completed its due diligence pursuant to Sections 4 and 5 hereof
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and wishes to proceed with the Closing (the "Closing Date "). The Closing shall take place at a
mutually agreeable place on the Closing Date.
4. Evidence of Title. The City is responsible for satisfying itself as to the condition of the
University's title to the Ballfield Site. Closing is contingent on determination by the City that
all easements and other restrictions, including the permanent easement for a railroad spur
identified in Section 1.1, above, are satisfactory or acceptable and will not interfere with the
City's proposed uses thereof.
5. Condition of Ballfield Site; Release.
5.1. The City shall undertake its own due diligence to determine whether the
condition of the Ballfield Site is satisfactory to City. The University agrees to issue one or
more environmental access permits in the University's standard form at the request of the City
providingthe City reasonable access to the Ballfield Site to conduct its due diligence at no cost
to the University. The City may conduct such tests of soil and groundwater as it deems
appropriate and shall restore the property to its original condition to the extent reasonably
possible. The City shall defend, indemnify and hold the University harmless from claims for
damages arising out of such access and testing; provided, however, that such indemnification
shall not be deemed a waiver by either party of applicable statutory limits on liability. Upon
request, the University shall supply the City or the City's consultants with documents and
information in the possession or under the control of the University about the condition of the
Ballfield Site (including but not limited to soil boring, ground water monitoring and laboratory
test results). The City acknowledges and agrees that (i) the Ballfield Site shall be conveyed,
and City shall accept possession of the Ballfield Site on the Closing Date "as is, where is, and
with all faults "; (ii) neither the University, its counsel, nor any officer, employee or agent of
University, nor any other party related in any way to any of the foregoing have or shall be
deemed to have made any verbal or written representations, warranties, promises or guarantees
(whether express, implied, statutory or otherwise) to City with respect to the Ballfield Site; and
(iii) prior to Closing, the City will confirm independently all information that it considers
material to its acquisition of the Ballfield Site. The City specifically acknowledges that it not
relying on any representations or warranties of any kind or nature whatsoever, whether oral or
written, express, implied, statutory or otherwise, as to:
5.1.1. The uses, merchantability or fitness of any portion of the Ballfield Site for a
particular purpose;
5.1.2. The physical condition of the Ballfield Site or its soils and geology;
5.1.3. The presence or absence, location, nature or scope of any Hazardous Materials
in, on, at, or under the Ballfield Site.
5.2. The City's election to close the transaction contemplated by this Agreement shall be
deemed an acknowledgment by City that City has inspected the Ballfield Site, is thoroughly
acquainted with and accepts its condition, and has reviewed, to the extent necessary in its
discretion, all the relevant information regarding the Ballfield Site. By closing this transaction
and accepting the deed, the City releases the University from claims, suits, actions, demands,
damages, costs, expenses, penalties, fines or compensations whatsoever that the City now has
or may have in the future on account of or arising out of or in connection with the physical or
environmental condition of the Ballfield Site.
6. Closiniz.
At Closing, the University shall deliver to the City:
6.1 A limited warranty deed, in the form attached hereto as Exhibit E, in recordable
form, duly executed and acknowledged by University, conveying after - acquired title to the
Ballfield Site to City, free and clear of all liens, taxes, restrictions and encumbrances of every
kind and description except:
6. 1.1 General real estate taxes and assessments that are a lien but that are not due and
payable on the Closing Date; and
6.1.2 Easements, rights -of -way, restrictions, covenants, reservations and conditions of
record.
6.2 An affidavit in customary form executed by University indicating that there are
no unsatisfied judgments, tax liens or bankruptcies against or involving University or
University's interest in the Ballfield Site; that there are no labor or material furnished to the
Ballfield Site at the request of University such as would create a mechanics lien and there are
no other unrecorded interests in the Ballfield Site created by University.
6.3 FIRPTA Affidavit. A non - foreign person affidavit, properly executed and in
recordable form, containing such information as is required by Internal Revenue Code ( "IRC ")
Section 1445(b)(2) and its regulations.
6.4 The appropriate Federal Income Tax Reporting Form, if any is required.
6.5 Pursuant to Minn. Stat. § 103I.235, the University shall either provide a
certification upon the deed that University does not know of any wells on the Ballfield Site, or
provide a properly executed well disclosure certificate. If the Ballfield Site contains any wells
that are not in use, inoperable, disconnected from a power supply, and not sealed, the
University shall not be required to seal the wells prior to Closing and the City shall assume all
responsibilities for such well(s).
7. Real Estate Taxes and Special Assessments. The parties shall pay all real estate taxes
and special assessments against the Ballfield Site as follows:
7.1. The University shall pay, on or before the Closing Date, all real estate taxes and
installments of special assessments due, if any, for all years prior to the year of Closing.
7.2. The City and the University shall prorate the real estate taxes, if any, payable in
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the year of Closing on a per diem basis to the Closing Date, using the current year's real estate
tax information or, if such information is not available, using the amount of real estate taxes
due and payable in the year immediately preceding the year of Closing. Any such proration
shall be final.
7.3. The City and the University shall prorate all installments of special assessments
certified for payment with the real estate taxes payable in the year of Closing.
7.4. The City shall pay any and all installments of special assessments and all real
estate taxes due and payable in the years following the year of Closing and, except as provided
in Subparagraph 7. 1, all other assessments levied or pending as of the Closing Date.
7.5. The City and the University hereby acknowledge that the Ballfield Site is
exempt from real estate taxes.
Recording and Transfer Taxes. The University shall pay the state deed tax, if any.
9. Transfer of Possession. Provided the City has performed all of its other obligations
under this Agreement, the University shall deliver possession of the Ballfield Site, subject to
easements and restrictions, on the Closing Date.
10. Condemnation. If at any time prior to Closing, legal proceedings are commenced under
the power of eminent domain against the Ballfield Site (or any part thereof), either party may
terminate this Agreement by sending notice to the other within fifteen (15) business days after
its receipt of written notice from the condemning authority of the pendency of any such
proceedings.
11. Notices and Demands. All notices, requests and other communications that a party is
required or elects to deliver shall be in writing and shall be delivered personally, or by
facsimile or electronic mail (provided such delivery is confirmed), or by a recognized
overnight courier service or by United States mail, first - class, certified or registered, postage
prepaid, return receipt requested, to the other party at its address set forth below or to such
other address as such party may designate by notice given pursuant to this section:
If to the University: University of Minnesota
c/o Real Estate Office
424 Donhowe Building
319 15th Avenue SE
Minneapolis. MN 55455 -0199
Facsimile No: (612) 624 -6345
E -mail Address: reoaumn.edu
If to the City: City of Rosemount
2875 —145th Street West
Rosemount, MN 55068 -4941
Facsimile No: (651) 423 -5203
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E -mail Address: comment@ci.rosemount.mn.us
12. Remedies upon Default. Time is of the essence for this contract. If either party shall
fail to perform any of its obligations under this Agreement within thirty (30) days after notice
from the other, then the sole remedy of the non - defaulting party is to terminate this Agreement.
13. Controlling Law. This Agreement has been made under the laws of the State of
Minnesota, and such laws will control its enforceability. In the event any provision hereof is
deemed unenforceable, the other provisions will survive.
14. Captions. The paragraph headings or captions appearing in this Agreement are for
convenience only, are not a part of this Agreement and are not to be considered in interpreting
this Agreement.
15. Counterparts. This Agreement is executed in two (2) counterparts, each of which shall
constitute one and the same instrument.
16. Meer /Survival. This written Agreement constitutes the complete agreement between
the parties and supersedes any prior oral or written agreements between the parties regarding
the Bailfield Site. There are no verbal agreements that change this Agreement and no waiver
of any of its terms will be effective unless in writing executed by the parties. This Agreement
binds and benefits the parties and their successors and assigns.
17. Effective Date. This Agreement shall be effective upon the date that the final required
signature is obtained ( "Effective Date ").
IN WITNESS WHEREOF, the parties hereto have set their hands on the date(s)
indicated below intending to be bound thereby.
CITY OF ROSEMOUNT:
59.2
Its:
Executed on , 2010
REGENTS OF THE UNIVERSITY OF MINNESOTA
LIM
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EXHIBIT A
The west 840.00 feet of the Southeast Quarter of Section 27, Township 115, Range 19, Dakota
County, Minnesota, lying southerly of the north 1400.00 feet of said Southeast Quarter,
and
The north 181.30 feet of the west 840.00 feet of the Northeast Quarter of Section 33, Township
115, Range 19, Dakota County, Minnesota;
Except minerals and minerals rights.
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EXHIBIT B
[Legal Description of University Development Site]
EXHIBIT C
[License for Temporary Parking Purposes]
UNIVERSITY OF MINNESOTA
PARKING LICENSE AGREEMENT
THIS PARKING LICENSE AGREEMENT ( "Agreement ") is entered into on the date
of last signature below (the "Effective Date ") by and between Regents of the University of
Minnesota, a Minnesota constitutional corporation ( "University ") and the City of Rosemount, a
Minnesota municipal corporation (the "Licensee ").
WHEREAS, on , 2010, Licensee purchased from University property east of
Akron Avenue and south of Dakota County Technical College in Rosemount,, Minnesota for the
purpose of providing ball fields and areas for active recreation (the ` Ballfields Site "); and
WHEREAS, University owns certain land west of the Ballfield Site legally described on
the attached Exhibit A and depicted on Exhibit B (the "Parking Area "); and
WHEREAS, Licensee desires to use the Parking Area in connection with activities at the
Ballfield Site; and
WHEREAS, University agrees to grant to Licensee a license to the Parking Area in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are acknowledged, the parties agree as follows:
1. Grant of License; Use. University hereby grants to Licensee the non - exclusive
right to use the Parking Area at times and on dates requested by Licensee and approved by
University.
a. Licensee may use the Parking Area for vehicle parking by Licensee and its
invitees (which includes users of the Ballfields Site) in connection with events
at the Ballfield Site and no other purpose. Such use shall be made in accordance
with the schedule approved in advance by University. Licensee shall provide to
University annually, on or before March 1, a written statement with the expected
dates and hours of use of the Parking Area during the following 12 calendar
months. The University shall have the right to approve the schedule and
amendments thereto, which approval shall not be unreasonably withheld.
b. This Agreement is subject to: (i) any and all existing restrictions, covenants,
easements, licenses, permits, leases and other encumbrances relating to the
Parking Area; and (ii) all applicable federal, state, and local laws, statutes,
regulations, ordinances, rules, and requirements, and applicable University
ordinances, policies, and procedures.
C. Parking before 6:00 a.m. and after 10:00 p.m., and the parking of service vehicles
in the Parking Area is prohibited
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2. Term. The term of this Agreement shall be one year, commencing on ,
( "Term "). Licensee may extend the Term for additional one year terms by written notice from
Licensee to the University at least 30 days before the end of the then - current term. In no event,
however, shall the Term extend beyond December 31, 2018.
3. License Fee. Licensee may use the Parking Area without charge.
4. Maintenance and Repair. Licensee shall be solely responsible for:
a. maintaining the Parking Area and, if approved by University, clearing, grading,
and otherwise preparing the Parking Area for the permitted use;
b. removing trash, debris, and recyclable materials from the Parking Area at
reasonable intervals; Licensee shall place and maintain an adequate number of
trash and recycling receptacles on the Parking Area each year during the period in
which the Ballfields Site is in use;
C. removing ice and snow from the Parking Area if Licensee intends to make it
available for use during winter months;
d. repairing all damage to the Parking Area resulting from use of the Parking Area
by Licensee and its invitees; and
e. with University's prior written approval, trimming, cutting and removing trees,
shrubs, or other vegetation in the Parking Area as in Licensee's judgment
unreasonably interfere with Licensee's use thereof.
5. Signs. Licensee shall be permitted to temporarily place signs in the Parking Area, as
mutually agreed with University, designating the availability of the Parking area for Ballfield
parking.
6. Liability. Subject to applicable law, each party agrees that it will be responsible for its
own actions, including the actions of its officers, agents, employees, contractors and invitees, and
the results thereof to the extent authorized by law and shall not be responsible for the acts of the
other party, its officers, agents, employees, contractors and invitees, or the results thereof.
Licensee's liability is limited by Minnesota Statutes Chapter 466 and University's liability is
limited by the provisions of the Minnesota Tort Claims Act, Minn. Stat. §3.736 and other
applicable law.
7. Notices. All notices, requests and other communications that a party is required or
elects to deliver shall be in writing and shall be delivered personally, or by facsimile or
electronic mail (provided such delivery is confirmed), or by a recognized overnight courier
service or by United States mail, first class, certified or registered, postage prepaid, return receipt
requested, to the other party at its address set forth below or to such other address as such party
may designate by notice given pursuant to this section:
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If to University: Regents of the University of Minnesota
C/o Real Estate Office
319 15th Avenue SE, Suite 424
Minneapolis MN 55455
reogumn.edu
With a copy to: University of Minnesota
Office of the General Counsel
Attn: Transactional Law Services Group
200 Oak Street SE, Suite 360
Minneapolis, MN 55455 -2006
If to Licensee: City of Rosemount
8. Surrender. Licensee will, at the expiration of this Agreement, remove all
improvements from the Parking Area, re- establish a vegetative cover thereon and restore the
Parking Area as nearly to its original condition as is reasonably practicable.
9. Assignment. This Agreement is not assignable. Any such assignment shall be null,
void and of no effect..
10. Entire Agreement. This Agreement constitutes the entire understanding between the
parties with respect to Licensee's use of the Parking Area, and supersedes all prior agreements,
written or oral regarding the same.
AGREED.
LICENSOR:
Regents of the University of Minnesota
By _
Print:
Date:
3
LICENSEE:
City of Rosemount
By _
Print:
Date:
EXHIBIT A
Parking Area
The West 80.00 feet of the East 113.00 feet of the South 1244.00 feet, of the Southwest
quarter of Section 27, Township 115, Range 19, Dakota County, Minnesota, and also the
West 120.00 feet of the East 233.00 of the North 524.00 feet of the South 1244.00 feet, of
said Southwest quarter, and also the West 80.00 feet of the East 113.00 feet of the North
181.30 feet of the Northwest Quarter of Section 34, Township 115, Range 19, Dakota
County, Minnesota.
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UNIVERSITY OF MINNESOTA
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement ") is entered into effective as of the
date of last signature below (the "Effective Date ") by and between Regents of the University of
Minnesota, a Minnesota constitutional corporation, through its Real Estate Office (the
"University ") and the City of Rosemount, a Minnesota municipal corporation (the "Licensee ").
WHEREAS, on 2010, Licensee acquired from University the property
legally described as , Dakota County, Minnesota (the
`Ballfield Site "); and
WHEREAS, University owns land adjacent to the Ballfield Site legally described on
Exhibit A (the "Property "); and
WHEREAS, Licensee desires to cross the Property to provide utility service and access
to the Ballfield Site; and
WHEREAS, University agrees to grant to Licensee a non - exclusive right to use the
Property in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are acknowledged, the parties agree as follows:
1. Grant of License.
1.1 University grants to Licensee a non - exclusive, irrevocable license to enter the
Property at all reasonable times for the purpose of constructing, reconstructing, operating,
maintaining, inspecting and repairing public storm sewer, sanitary sewer, water facilities serving
the Ballfields Site ( "Utilities ") and for the purpose of public pedestrian and vehicular access to
and from the Ballf elds Site to Dakota County Road 42 over, under and across the Property for a
50 year term beginning on the Effective Date.
1.2 This Agreement is subject to: (a) any and all existing restrictions, covenants,
easements, licenses, permits, leases and other encumbrances of record relating to the Property;
and (b) all applicable federal, state, and local laws, statutes, regulations, ordinances, rules, and
requirements and applicable University ordinances, policies, and procedures.
1.3 Licensee accepts the Property in an "AS IS" and "WITH ALL FAULTS"
condition.
1.4 Licensee represents that it has inspected the Property and enters into this
Agreement with knowledge of its condition. Licensee shall determine the suitability of the
Property for its intended use, including without limitation geotechnical, structural,
environmental, and health or safety conditions. Licensee acknowledges that University has not
made any warranties, express or implied, that Licensee or Licensee's contractors or consultants
can successfully install, operate, maintain, or repair the Utilities. Licensee shall have the right to
cut, trim, or remove trees, shrubs, or other vegetation as in the Licensee's judgment unreasonably
interferes with Licensee's use of the Property.
1.5 University agrees that it will execute and deliver a permanent easement over,
under and across the Property for public right of way purposes to Licensee if and when Licensee
opens Akron Avenue thereon as a public street.
2. Fee. The fee for this license is waived.
3. Use of the Property.
3.1 Licensee agrees to use the Property solely for the purposes stated in Section I.I.
Subject to the Licensee's obligations below, University shall maintain the Property in
substantially its present condition. University's maintenance costs for the existing road
(including without limitation costs for snow plowing, mowing, and grading) shall be equitably
allocated between the University and Licensee based upon the proportionate use of thereof by
Licensee and its invitees (including users of the Ballfields Site) and other users as reasonably
determined by University. University shall periodically invoice Licensee for its share of the
costs and payment shall be due 30 days after the date of the invoice. If requested by Licensee,
Licensee an University shall meet annually to discuss the University's anticipated costs of
maintenance for the coming year. University shall also have the right, but not the obligation, to
make improvements to the Property.
3.2 If Licensee proposes to make improvements to the Property (including
installation of Utilities) Licensee shall first submit to University, for its prior review and
approval, detailed plans and specifications for the proposed improvements. University's
approval shall not be unreasonably withheld. Any such improvements, once approved, shall be
installed and maintained at Licensee's expense.
3.3 Licensee shall perform its work on the Property in a safe, good and worker -like
manner, and in accordance with all applicable federal, state, and local laws, statutes, regulations,
ordinances, rules, and requirements.
3.4 Promptly after completion of any work by Licensee on the Property, Licensee at
its sole cost and expense shall: (i) remove all equipment and other property placed upon the
Property by Licensee or its contractors or consultants; (ii) remove all debris resulting therefrom;
(iii) restore the Property to its condition prior to the work; or at University's option, Licensee
shall upon demand reimburse the University for any costs incurred by University in restoring the
Property; and (iv) furnish to University without charge electronic copies of "as- built" drawings
and specifications for the Utilities under the Property.
3.5 Licensee, at its sole cost and expense, shall promptly restore to University's
reasonable satisfaction any damage to the Property or University's other property arising from or
related to Licensee's use of the Property; or at University's option, Licensee shall upon demand
reimburse the University for any costs incurred by University in restoring such damage.
3.6 Licensee, at its sole cost and expense, shall maintain its Utilities in a good, safe
condition and repair.
3.7 Licensee shall keep the Property free of any and all mechanics', material
supplier's, and other liens arising out of any work, labor done, services performed, or materials
furnished for Licensee or its contractors or consultants or claimed to have been furnished for
Licensee or its contractors or consultants.
3.8 The University reserves the right to occupy and use, and to grant others the right
to occupy and use the Property for any purpose whatsoever provided that such use shall not
unreasonably interfere with the Utilities or materially impair access to the Ballfields Site.
3.9 Licensee shall provide to University electronic copies of any test results and
reports it or its contractors or consultants obtain pertaining to the Property. All test results and
reports shall be sent to the University of Minnesota, Real Estate Office, 424 Donhowe Building,
319 15'" Avenue Southeast, Minneapolis, MN 55455 -0199, prior to submission to any regulatory
agency. University may comment separately on said results and reports to any regulatory
agency, but shall not alter any submission from Licensee to any regulatory agency.
4. Environmental.
4.1 Licensee shall not —and shall ensure that others do not—Release, install, use,
generate, store, locate, produce, process, treat, transport, incorporate, discharge, emit, deposit, or
dispose of Hazardous Substances in, upon, under, over or from the Property, or violate any
Environmental Laws.
4.2 Definitions.
4.2.1 `Environmental Laws" means any and all federal, state, local, or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any
governmental authority regulating, relating to, or imposing liability or standards of conduct
concerning any Hazardous Substances, environmental protection, or health and safety, as now or
may at any time hereafter be in effect and as amended from time to time, as well as the
regulations adopted and promulgated thereunder, including without limitation: the Clean Water
Act, also known as the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the
Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. Section 136 et seq.; the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq.; the Superfund Amendment and
Reauthorization Act of 1986, Public Law 99 -499, 100 Stat. 1613; the Emergency Planning and
Community Right to Know Act, 42 U.S.C. Section 11001 et seq.; the Resource Conservation and
Recovery Act, also known as the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq.; and the
Minnesota Environmental Response and Liability Act, Minnesota Statutes Chapter 115B.
4.2.2 "Hazardous Substance" means (i) hazardous materials, hazardous wastes, and
hazardous substances as those terms are defined under any Environmental Laws; (ii) petroleum,
petroleum products, and by- products, including crude oil and any fractions thereof; (iii) natural
gas, natural gas liquids, liquefied natural gas, synthetic gas, and any mixtures thereof; (iv)
asbestos or any material that contains any hydrated magnesium silicate minerals that crystallize
as bundles of long, thin fibers that readily separate when broken or crushed; (vi) radon; (vii) any
other hazardous or radioactive substance, material, contaminant, pollutant, or waste; (viii) any
substance with respect to which any federal, state, or local Environmental Law or governmental
agency requires environmental investigation, monitoring, or remediation; and (ix) any other
substance or material now or in the future deemed to be hazardous, dangerous, toxic, or a
pollutant or contaminant under any Environmental Laws.
4.2.3 "Release" means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching, or migration of a
Hazardous Substance into the indoor or outdoor environment (including, without limitation, the
abandonment or disposal of any barrels, containers, or other closed receptacles containing any
Hazardous Substance), or into or out of the Property, including the movement of any Hazardous
Substance through the air, soil, surface water, groundwater, or property.
4.3 Licensee, at its sole cost and expense, shall:
a. Notify University prior to any activity by Licensee, its contractors or invitees on
the Property which involves the Release, use, storage, generation, treatment,
transportation, disposal, or handling of any Hazardous Substance;
b. Comply with all Environmental Laws governing the Release, use, storage,
generation, treatment, transportation, disposal, or handling of Hazardous Substances;
C. Immediately stop construction or any other activity if Licensee encounters a
Hazardous Substance;
d. Give immediate notice to University's Department of Environmental Health and
Safety at 612- 626 -6002 or, after normal business hours, the Police Department dispatch
at 612 - 624 -2677 (i) if Licensee encounters a Hazardous Substance; (ii) if a Hazardous
Substance is Released on or from the Property; (iii) of a violation of any Environmental
Laws; (iv) of an inspection or inquiry by any governmental agency with respect to
Licensee's use of the Property; or (v) if Licensee receives any notice from any
governmental agency alleging that any Environmental Laws have been violated by
Licensee with respect to Licensee's use of the Property;
e. Promptly perform any investigative, remedial or other activities necessary to
avoid or minimize injury or liability to any person, or to prevent the Release or spread of
contamination; and
f. Promptly respond to and comply with any notice, order, request, or demand
relating to potential or actual contamination on the Property.
4.4 If during installation, maintenance, repair or other work, Licensee or its
contractors or consultants expose or disturb soils, water, or other materials that appear to be
contaminated based on visual and olfactory observation and/or field screening activities,
Licensee shall test the soils, water, and other materials at Licensee's cost; testing shall be
conducted by a certified laboratory. While the soils, water, and other materials are being tested,
all potentially contaminated soils and other materials shall be stored on 10 mil poly and covered
appropriately until testing is complete. Water shall be stored and labeled, if necessary, in an
approved storage vessel. Stored soils, water, and other materials shall be appropriately secured
on -site, and are the responsibility of the Licensee. If testing confirms, or any agency with
jurisdiction over the matter determines, that the soils, water, or other materials are contaminated,
Licensee shall dispose of them appropriately at an approved facility and/or via an approved
MCES or MPCA Discharge Permit at Licensee's sole cost. Licensee shall assume full
responsibility for impacted soil, water, and all other materials excavated and removed from the
Property. Licensee shall (a) seek and receive from a State and/or county approved disposal
facility(ies) written pre - approval for receipt of impacted materials; and (b) provide a copy of
such pre- approval to University. Licensee shall provide to University without charge copies of
all test results and documentation regarding analysis and disposal of impacted soil, water, and
materials removed from the Property, including, but not be limited to, waste manifests, bills of
lading, chain of custody documents and landfill /disposal facility receipt records. If identified
releases are detected on the Property and the site is entered into the MPCA's Voluntary
Investigation and Clean-up Program (VIC) and/or the Petroleum Brownfields Program (PB),
Licensee shall ensure that University is named as a Successor or Assign to any liability assurance
letter received from MPCA. If testing confirms, or any agency with jurisdiction over the matter
determines, that the soils, water, or other materials are not contaminated, Licensee may with
University's prior written consent dispose of them on the Property in accordance with existing
MPCA Guidelines.
4.5 If University believes that a Hazardous Substance has been Released on or from
the Property by Licensee its contractors or consultants, then University has the right, but not the
obligation, to require Licensee, at Licensee's sole cost and expense, to perform an environmental
audit by an environmental consultant satisfactory to University. Such audit shall be commenced
within ten (10) days after University's request, and thereafter be diligently prosecuted to
completion. Licensee shall provide to University an electronic copy of the environmental audit
immediately after it is completed.
4.6 If Licensee fails to perform its obligations under this Section, the University has
the right, but not the obligation, to perform Licensee's obligations and charge Licensee for the
costs and expenses reasonably incurred by University in doing so. Licensee shall reimburse the
University for all such costs and expenses within ten (10) days after receipt of an invoice.
4.7 Licensee hereby authorizes any and all governmental entities with responsibility
access to) all files related to for enforcement of Environmental Laws to release to University (or
provide University with alleged violations of Environmental Laws at the Property.
5. Liability. Subject to applicable law, each party agrees that it will be responsible for
its own actions, including the actions of its directors, officers, agents, employees, contractors and
invitees, and the results thereof to the extent authorized by law and shall not be responsible for
the acts of the other parry, its directors, officers, agents, employees, contractors and invitees, or
the results thereof. Licensee's liability is limited by Minnesota Statutes Chapter 466 and
University's liability is limited by the provisions of the Minnesota Tort Claims Act, Minn. Stat.
§3.736 and other applicable law.
6. Insurance.
6.1 Licensee shall ensure that its contractors and consultants working on the Property
maintain the following insurance:
a. Occurrence based general liability insurance using ISO form CG 00 01 12 04 or
its equivalent covering claims arising from operations under this Agreement, whether
such operations are performed by Licensee or its contractors or consultants, with
minimum limits of $1 million per occurrence, $3 million annual general aggregate per
project, $3 million annual aggregate for Products /Completed Operations, for a total
general liability limit of Five Million and no /100 Dollars ($5 million). Regents of the
University of Minnesota shall be named as Additional Insured for ongoing and completed
operations by endorsement on ISO forms CG 2010 07 04 and CG 2037 07 04 or their
equivalent.
b. Business Automobile Liability Insurance using ISO form CA 00 01 or its
equivalent contractual liability coverage equivalent to that provided in the 1990 and later
editions with a minimum limit of $1 million each accident for bodily injury and property
damage. Coverage shall apply to all owned, hired, and non -owed automobiles. The
Regents of the University of Minnesota shall be named as Additional Insured.
C. Workers' compensation insurance in compliance with all statutory requirements
of the State of Minnesota.
d. Employer's Liability (Part B) insurance with minimum limits of $500,000 bodily
injury by disease per employee; $500,000 bodily injury by disease aggregate; and
$500,000 bodily injury by accident.
e. An Umbrella or Excess Liability insurance policy may be used to supplement
Licensee's policy limit to satisfy the minimum policy limits required by this Agreement.
If these policies are not follow -form of the underlying coverage, the coverage shall, at a
minimum, provide the coverage available on the underlying policies.
All policies shall provide: (i) that the policy will not be canceled, materially changed, or
non - renewed without at least thirty (30) days' prior written notice to the University; and (ii) that
the policy is primary and any insurance maintained by the University is excess and non-
contributory. All policies shall be written by a reputable insurance company acceptable to with a
current AM Best Rating of A -VII or better, and authorized to do business in Minnesota.
Licensee's contractors and consultants shall provide to the University prior to
commencing any work on the Property fully executed Certificates of Insurance evidencing that it
has obtained the required coverage and endorsements.
6.2 Licensee shall require all contractors and consultants of every tier to waive all
subrogation and recovery rights against University. No endorsements, except those expressly
stated herein, may be included on any policy limiting coverage without the approval of the
University.
7. Default. If at any time Licensee fails to perform its obligations under this
Agreement, and if such default has not been cured within thirty (30) days after notice from
University, then University, in its sole discretion, may: (i) seek specific performance of the
unperformed obligations; (ii) perform Licensee's obligations and charge Licensee for its costs
reasonably incurred in doing so; or (iii) pursue any other remedy available at law or in equity.
Licensee shall promptly reimburse University for reasonable attorneys' fees and costs it incurs in
enforcing its rights under this Agreement.
8. Notices. A notice, communication, or demand by either parry to the other shall be
sufficiently given or delivered upon receipt if personally delivered or three (3) days after sent by
U.S. registered mail or certified mail, postage prepaid, return receipt requested; and
(i) in the case of University, is addressed or personally delivered to:
Regents of the University of Minnesota
C/o Real Estate Office
319 15th Avenue SE, Suite 424
Minneapolis MN 55455
reo @umn.edu
and
University of Minnesota
Office of the General Counsel
Attn: Transactional Law Services Group
360 McNamara Alumni Center
200 Oak Street SE
Minneapolis, MN 55455 -2006
(ii) in the case of Licensee, is addressed to or delivered personally to:
or at such other address with respect to either such party as that party may, from time to time,
designated in writing.
FDamages. IN NO EVENT SHALL UNIVERSITY BE LIABLE FOR ANY
DIRECT, CONSEQUENTIAL, INCIDENTAL, LOST PROFITS OR LIKE EXPECTANCY
DAMAGES ARISING OUT OF THE AGREEMENT.
10. Miscellaneous.
10.1 Assignment. Licensee shall not assign its rights under this Agreement without
University's prior written consent, which University may grant, withhold, or condition in its sole
discretion.
10.2 Survival. Notwithstanding anything to the contrary, to the extent applicable,
the terms of this Agreement shall survive expiration or termination of the Term.
10.3 Severability. If any provision of this Agreement is declared invalid, illegal or
otherwise unenforceable, that provision shall be deemed to have been severed from this
Agreement and the remainder of this Agreement shall otherwise remain in full force and effect.
10.4 Complete Agreement. This Agreement (including all exhibits) constitutes the
complete agreement between the parties with respect to the matters addressed herein. This
Agreement shall be amended only in a writing duly executed by the parties to this Agreement.
IN WITNESS WHEREOF, University and Licensee have executed this Agreement as
of the date University has signed this grant of license.
Regents of the University of Minnesota Licensee: City of Rosemount
By: By:
Name: Name:
Title: Title:
Date: Date:
EXHIBIT A
[The legal description has been revised to take into account MnSCU's ownership of the east
33 feet of future Akron Avenue from the south boundary of the County Road 42 r.o.w. and
overlap of the easement description proposed by the City with the Ballfields Site to be
conveyed to the City. The City and University's Real Estate Office need to confirm the
accuracy of the revised description.]
A strip of land 33 feet in width over that part of the South half of Section 27, and
the North half of Section 34 all in Township 115, Range 19, Dakota County,
Minnesota, west of a line which is described as follows; commencing at the
Northeast corner of the Southwest quarter of said Section 27; thence South along
the East line of said Southwest quarter 2643.70 feet to the Southeast corner of
said Southwest quarter; thence continuing South along the East line of the
Northwest quarter of said section 34 to the South line of the North 181.30 feet of
said Northwest quarter and said line there terminating. Said strip of land is to
extend by its full width from the Southerly Right Of Way line of 145th street
(CSAH 42) to the South line of the North 181.30 feet of said Northwest quarter of
said Section 34 and the South line of the North 181.30 feet of the Northeast
quarter of said Section 34, except that part thereof lying within the Northwest
quarter of the Southeast quarter of Section 27, Township 115, Range 19.
EXHIBIT E
Form of Limited Warranty Deed
LIMITED WARRANTY DEED
State Deed Tax: $ 1.65
Consideration for this transfer is less than $500.00.
Date:
For valuable consideration, Regents of the University of Minnesota, a Minnesota constitutional
corporation, ( "Grantor "), hereby convey and quitclaim to the City of Rosemount, ( "Grantee "), a
municipal corporation under the laws of Minnesota real property in Dakota County, Minnesota,
described as follows: (the "Property "):
The west 840.00 feet of the Southeast Quarter of Section 27, Township 115, Range 19,
Dakota County, Minnesota, lying southerly of the north 1400.00 feet of said Southeast
Quarter,
and
The north 181.30 feet of the west 840.00 feet of the Northeast Quarter of Section 33,
Township 115, Range 19, Dakota County, Minnesota;
Except minerals and minerals rights.
together with all hereditaments and appurtenances belonging to the Property. Grantor covenants
and represents that:
(1) this Deed conveys after- acquired title; and
(2) Grantor has not made, done, executed, or suffered any act or thing by which all or any
part of the Property, now or at any time hereafter, is or may be imperiled, charged, or
encumbered in any manner, and Grantor will warrant the title to the Property against all persons
lawfully claiming any interest in the Property from or through Grantor, as a result of any such act
or thing, except for the following encumbrances: a Permanent Easement granted by the
Regents of the University to Minnesota State Colleges and Universities on February 1, 2010,
recorded on February 2, 2010 as Document Number 27118565 in the Office of the Dakota
County Recorder
The Seller certifies that the seller does not know of any wells on the described real property.
REGENTS OF THE UNIVERSITY OF MINNESOTA
UN
Its:
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STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 20_, by
, the of Regents of the
University of Minnesota, a Minnesota constitutional corporation, Grantor.
Notary Public
Tax Statements for the real property described in this instrument should be sent to (include name
and address of Grantee):
City of Rosemount
2875 145' St. W.
Rosemount, MN 55068
This instrument drafted by:
Kennedy & Graven, Chartered
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
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