HomeMy WebLinkAbout6.l. County Road 73 Street & Utility Improvement Project, City Project #399-AgreementsAGENDA ITEM: County Road 73 Street Utility
Improvement Project, City Project #399-
Agreements
AGENDA SECTION:
Consent
AGENDA NO. (o
APPROVED BY:
PREPARED BY: Andrew J. Brotzler, PE, Director of Pu I'
Works /City Engineer
i
ATTACHMENTS: Assessment Roll; Parcel Exhibit; ARRA
Project List; Petition and Waiver
Agreements; Escrow Agreements; 0pl
RECOMMENDED ACTION: Motion to Approve the Petition and Waiver Agreements and
Escrow Agreements and Authorize the Necessary Signatures for Parcels 1 A, 1 B, 2A, 2B, 5,
6, 11A.
ROSEMOUNT
CITY COUNCIL
Special City Council Meeting: August 3, 2009
EXECUTIVE SUMMARY
BACKGROUND:
The County Road 73 Street and Utility Improvement Project, City Project #399 includes the improvement
of County Road 73 (Akron Avenue) from a 2 -lane rural gravel road to a 2 -lane urban road with medians,
turn lanes and trails between CSAH 42 and Bonaire Path. Through the American Recovery and
Reinvestment Act (ARRA), federal stimulus money has been secured for a portion of the estimated project
cost. In June 2009, the City was officially notified that the Metropolitan Council had awarded $2.96
million to the County Road 73 project. The attached figure summarizes the metro regional projects
funded as part of ARRA.
With the receipt of the ARRA funds for the project, staff has worked with the property owners along the
corridor to develop agreements necessary to facilitate the completion of the project within the required
timelines to qualify for ARRA funding. These agreements and documents are as follows:
1. Easements.
2. Petition and Waiver (assessment) Agreements for the deferred assessment of project costs to
benefitting properties at the time of subdivision.
3. Escrow Agreements for the retention of agreements until the project commences. In the event the
project does not proceed, the escrow agreements will make all easement and assessment
agreements null and void.
4. Easement and Trunk Area Charge Credit Agreements for the future credit of land dedicated for
ponding when properties are subdivided.
As the funding of a portion of the project cost with ARRA funds will benefit and facilitate the future
economic development of properties along the project corridor, it is expected that the necessary easements
will be dedicated by the property owners without compensation. In addition, as the availability of ARRA
funds will reduce future development costs, assessment agreements have been developed with the
property owners along the corridor for the recovery of costs with development to defray the local cost to
the City and County. For properties that include ponding necessary to complete the project, agreements
have been developed to provide a trunk storm area charge credit with future development in -lieu of a cash
payment at this time. The provisions of these agreements will need to be agreed to by all property owners
G: \ENGPROJ \399 \8 -3 -09 CC Agreements.doc
to facilitate the completion of the project and utilize the awarded ARRA funds.
The estimated project cost of $4,810,000 is proposed to be funded as follows.
ARRA Fund $2,960,000
Special Assessments 150,000
Dakota County $1,017,500
City 682,500
For the above City cost, $420,000 has been funded to date with prior year's Street CIP budgets as the
project was originally scheduled to be completed in 2006/2007. The remaining balance for the City cost
of $262,500 is proposed to be funded fifty percent (50 from the Street CIP fund and Storm Core funds
each.
Based on approval of the above agreements in August, the proposed schedule for the completion of the
project is as follows.
Submit Plans to Federal Aid July 31, 2009
Anticipated Federal Aid Approval and Authorization to Bid October 5, 2009
Receive Bids November 3, 2009
Award Contract November 9, 2009
Begin Construction November 27, 2009
SUMMARY
At this time, staff is recommending Council approval of the Petition and Waiver Agreements and Escrow
Agreements for Parcels 1A, 1B, 2A, 2B, 5, 6, 11A. Terms of the Trunk Storm Area Charge Credit
Agreement are still being reviewed with the property owners and final agreements will be presented to
Council at a future meeting.
2
Assessment Roll
WSB Project: County Road 73 from C.S.A.H. No. 42 to Bonaire Path Design By: MD
Projec, Location: City of Rosemount Checked By: MB
City Project No.: 399
WSB Project No.: 1556 -59 Date: 7/27/2009
PARCEL
NUMBER
PIN
Owner Address
Street Assessment
Front
Footage
Cost Per
Front Foot
Street
Assessment
1A
34- 58600 -011 -00
ARCON DEVELOPMENT INC. THE PEMTOM LAND CO.
744 SOUTHCROSS DRIVE W STE 103 1,170.27 16.25
BURNSVILLE, MN 55306
19,017.00
1B
34- 58600- 130-00
DAKOTA COUNTY CDA
1228 TOWN CENTRE DRIVE 1,323.34 16.25
EAGAN, MN 55123
21,504.00
2A
34 -02200- 030 -75
MINNOVA LAND LLC
11430 ZION CIR 1,631 16.25
BLOOMINGTON MN 55437
26,504.00
2B
34 -02200- 020 -75
I MINNOVA LAND LLC
11430 ZION CIR 813 16.25
BLOOMINGTON MN 55437
13,211.00
5
34 -02200- 013 -50
JMOR REAL ESTATE INVESTMENTS LLC
1903 WINSLOW CT
W SAINT PAUL MN 55118
840
16.25
13,650.00
6
34 -02200 -012 -50
ARCON DEVELOPMENT INC.
744 SOUTHCROSS DRIVE W STE 103
BURNSVILLE, MN 55306
2,289.46
16.25
37,204.00
11A
34- 02200 -012 -50
ARCON DEVELOPMENT INC.
744 SOUTHCROSS DRIVE W STE 103
BURNSVILLE, MN 55306
1,170.8
16.25
19,026.00
TOTAL
9,237.87
16.25
150,116.00
hs.%'Jte4 .P�
Piexa,e_ *9->str
GRAPHIC SCALE
PAR 116
1 cOW` ra ar i e.RN jai
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COUNTY ROAD 73 (AKRON AVENUE)
OVERALL PARCEL EXHIBIT
WSB Project No.1556-59 Dale 5/12/09
CITY Project No.417
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701 Xena AwnUe SouM, Suite 300
Minneapolis, W MN 55416
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WSB
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\FRASIRUCRIRE Is1OINEERING PLANNING CONS1RUC1NNI
PARCEL 4
BMW- 26
Rosemount, Minnesota
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Agency Project Description Location
Mn /DOT I -94 Landscaping Jct I494 to Hennepin CSAH 152 Maple Grove Brooklyn Park
Mn /DOT 212 Interchanges in Chanhassen (TH 101 and Carver CSAH 17) Chanhassen
Mn /DOT 212 Interchanges in Chaska Chaska
(TH 41, Carver CSAH 10, and Carver CSAH 11)
212 Interchanges in Eden Prairie
Mn /DOT Eden Prairie
(Hennepin CSAH 4 and Dell Road)
Mn /DOT TH 3 Bituminous M 0, guardrails, shoulders, drainage, etc Rosemount Inver
S. of Dakota CSAH 42 to TH 149 Grove Heights
Mn /DOT East side of Metro District- Guardrail improvement replacement Metrowide
Mn /DOT West side of Metro District- Guardrail improvement replacement Metrowide
Rogers, Hassan,
Mn /DOT I -94 Mainline and ramp concrete rehab Henn Co line to I -494
Dayton, Maple Grove
Mn /DOT I -94 at TH 101 Replace Lighting Rogers
Mn /DOT TH 252 at I- 94 Mainline Ramp Concrete Rehabilitation Brooklyn Center
Mn /DOT TH 252 bus shoulder rehab 694 to TH 610 Brooklyn Center
Brooklyn Park
Mn /DOT TH 62 lighting replacement TH 212 to Gleason Road Eden Prairie Edina
Mn /DOT 35W bituminous M 0, deck repair 694 to N. of Lake Dr Arden Hills Blaine
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Agency Project Description Location
Reconstruct Winnetka Ave N. from CSAH 10 Hope
New Ho
New Hope to 62nd Ave N. p
Oakdale Overlay Hadley Ave N. from Hudson Blvd N. to 11th St N. Oakdale
Prior Lake Signalization of CSAH 42 and McKenna Rd. Prior Lake
Campus Dr 26th Ave CR 61 to Teakwood Ln (M 0),
Plymouth Teakwood Ln to Sycamore Ln (reconstruct) Plymouth
Construct off ramp I -94 WB at S. Diamond Lake Rd, Rogers
Ro
Rogers extend ramp and grade separation over S. Diamond Lk. Rd g
Rosemount Reconstruct Akron Ave from CSAH 42 to Bonaire Path Rosemount
St. Paul Reconstruct Wabasha St pedestrian bridge tower St. Paul
Shakopee Construct ped bridge and trail connections Shakopee
Fuller St over TH 169 from Appaloosa Ave to Vierling Dr
Spring Lake Park Overlay reconditioning: Terrace Rd CSAH 8 to Spring Lake Park
Sanburnol Dr Able St CSAH 8 to CSAH 10
Stillwater M &O and storm sewer work on Washington Ave Stillwater
from TH 36 to Orleans St
Three Rivers Park Bike trail bridges (at TH 7 and CSAH 92) and paved St. Boni
District connection to Hennepin Co. line Minnetrista
Construct bridge and retaining walls for CR 83 overpass of
Washington County I -35 Forest Lake
Watertown Reconstruct TH 25 from White St to State St including Watertown
bituminous trail
Minor arterial roadway improvements including curb repair, Woodbury
Woodbury utility repair, M &O.
DNR Gateway Trail Bridge over TH 120 (enhancement project) Oaakkdd alle e Paul and
O
St. Paul Parks and Sam Morgan Trail from 35E to TH 5 (enhancement project) St. Paul
Rec
Arden Hills Anderson Memorial Trail connections (enhancement Arden Hills
project)
Carver County Dakota Rail Trail from Hennepin Carver county line to Eastern Carver
City of Mayer (enhancement project) County
Maplewood Stillwater Road Trail Improvements from Lakewood Dr to Maplewood
Century Ave (enhancement project)
Inver Grove Heights Rock Island Swing Bridge over Mississippi River Inver Grove
(enhancement project) Heights
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Cedar Lake Trail 3rd Ave North connection
from 12 St N to 7th St N (enhancement project)
ID Agency
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75 Minneapolis Park
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76 Coon Rapids
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M M M
The remaining projects (ID numbers 35 to 89) were approved by the Metropolitan Council as of June 10, 2009.
Projects with ID numbers 1 to 34 were approved by the Metropolitan Council as of April 22, 2009.
Metrowide project not on map
Parcel 1A
34- 58600- 100 -00
PETITION AND WAIVER AGREEMENT
This Agreement made this day of 2009, by and between the City of
Rosemount, a Minnesota municipal corporation "City"), and Mary Louise Daily and John Daily,
wife and husband; Patricia Dziedzic and Walter Dziedzic, wife and husband; Thomas L.
McCarthy, a single person; Cynthia McNary and Richard McNary, wife and husband; John P.
Wiederhold and Judith Wiederhold, husband and wife are the fee owners and Arcon
Development, Inc., a Minnesota corporation and The Pemtom Land Company, a Minnesota
corporation are contract for deed vendees (collectively "Owner").
WITNESSETH:
WHEREAS, the Owner is the fee owner of certain real property (the "Subject Property")
located in the City the legal description of which is set forth on Exhibit A, attached hereto and
hereby made a part hereof; and
WHEREAS, the Owner desires to have certain public improvements constructed to serve
the Subject Property as described in Exhibit B, attached hereto and hereby made a part hereof
(hereinafter referred to as the "Improvement Project and
WHEREAS, the Owner wishes for the City to construct the Improvement Project without
notice of hearing or hearing on the Improvement Project, and without notice of hearing or hearing
on the special assessments levied to finance the Improvement Project, and to levy $19,017.00 of the
cost of the Improvement Project against the Subject Property; and
WHEREAS, the City is willing to construct the Improvement Project in accordance with the
request of the Owner and without such notices or hearings, provided the assurances and covenants
354677v2 CBR RS220 -223 1
hereinafter stated are made by the Owner to ensure that the City will have valid and collectable
special assessments as they relate to the Subject Property to finance the costs of the Improvement
Project; and
WHEREAS, were it not for the assurances and covenants hereinafter provided, the City
would not construct the Improvement Project without such notices and hearings and is doing so
solely at the behest, and for the benefit of, the Owner.
NOW, THEREFORE, ON THE BASIS OF THE MUTUAL COVENANTS AND
AGREEMENT HEREINAFTER PROVIDED, IT IS HEREBY AGREED BY AND BETWEEN
THE PARTIES HERETO AS FOLLOWS:
1. The Owner hereby petitions the City for construction of the Improvement Project.
2. The Owner represents and warrants that it is the owner of 100 percent of the Subject
Property, that it has full legal power and authority to encumber the Subject Property as
herein provided, and that as of the date hereof, it has fee simple absolute title in the Subject
Property, which is not subject to any liens, interests or encumbrances, except as listed on the
attached Exhibit C.
3. The Owner requests that $19,017.00 of the cost of the Improvement Project be assessed
against the Subject Property.
4. The Owner waives notice of hearing and hearing pursuant to Minn. Stat. Section 429.031,
on the Improvement Project and notice of hearing and hearing on the special assessments
levied to finance the Improvement Project pursuant to Minn. Stat. Section 429.061, and
specifically requests that the Improvement Project be constructed and special assessments
levied against the Subject Property therefor without hearings.
5. The Owner waives the right to appeal the levy of the special assessments in accordance with
this Agreement pursuant to Minn Stat. Section 429.081, or reapportionment thereof upon
land division pursuant to Min. Stat. Section 429.071, Subd. 3, or otherwise, and further
specifically agrees with respect to such special assessments against the Subject Property or
reapportionment that:
a. Any requirements of Minn Stat., Chapter 429 with which the City does not comply
are hereby waived by the Owner;
b. The increase in fair market value of the Subject Property resulting from construction
of the Improvement Project will be at least equal to the amount specified in
354677v2 CBR RS220 -223 2
paragraph 3, and that such increase in fair market value is a special benefit to the
Subject Property; and
c. Assessment of amount specified in paragraph 3 against the Subject Property is
reasonable, fair and equitable.
6. The City will defer the payment of the special assessment for the Improvement Project,
without interest, until the Subject Property is subdivided or improved as defined below:
a. The Subject Property will be deemed to be subdivided upon final approval by the
City Council of a subdivision or division of land that creates buildable lots or parcels
of land. Subdivision into outlots that are not buildable will not be deemed to be a
subdivision.
b. The Subject Property will be deemed to be improved if the owner of the Subject
Property or the owner's authorized representative applies for and is granted a permit
for the construction of any residential, commercial, agricultural, industrial or other
building or structure that requires a building permit (other than permits to rebuild
existing buildings destroyed by fire or other casualty).
c. The deferment of the special assessment for the Improvement Project will terminate
upon the subdivision or improvement of the Subject Property as defined in
paragraphs a. and b. above. The special assessments may be paid without interest
until the earlier of: 1) 90 days after termination of the deferment; or 2) the issuance
of a certificate of occupancy for an improvement or release of a final plat for a
subdivision. If the special assessment is not paid by such date, interest on the
assessment will accrue at the rate of five percent per year from the termination of the
deferral until December 31 of the year in which the assessment is paid. The
assessment will be due and payable with ad valorem real estate taxes in the year
following the first November 30 occurring after the termination of the deferral of
the assessment.
7. Owner represents and warrants that the Subject Property is not so classified for tax purposes
as to result in deferral of the obligation to pay special assessments; and Owner agrees that it
will take no action to secure such tax status for the Subject Property during the term of this
Agreement.
8. The covenants, waivers and agreements contained in this Agreement shall bind the
successors and assigns of the Owner and shall run with the Subject Property and bind all
successors in interest thereof. It is the intent of the parties hereto that this Agreement be in a
form which is recordable among the land records of Dakota County, Minnesota; and they
agree to make any changes in this Agreement that may be necessary to effect the recording
and filing of this Agreement against the title of the Subject Property.
9. The City may abandon the Improvement Project if it is unable to secure agreement of all
affected landowners or necessary rights -of -way for the Improvement Project or determines
354677v2 CBR RS220 -223 3
that proceeding with the Improvement Project is not in the public interest. This Agreement
will be terminated if the City Council has not awarded a contract for the construction of the
Improvement Project by December 31, 2011.
10. If not terminated in accordance with paragraph 9, this Agreement shall terminate upon the
final payment of all special assessments levied against the Subject Property regarding the
Improvement Project, and the City shall thereupon execute and deliver such documents, in
recordable form, as are necessary to extinguish its rights hereunder.
11. This Agreement may be executed in several counterparts and all such executed
counterparts shall constitute one agreement, binding on all of the parties hereto, notwithstanding
that all of the parties hereto are not signatories to the original or to the same counterpart.
above.
IN WITNESS WHEREOF, the parties have set their hands the day and year first written
STATE OF MINNESOTA
ss.
COUNTY OF DAKOTA
By:
The foregoing instrument was acknowledged before me this day of 2009,
by William Droste and Amy Domeier, the Mayor and Clerk, respectively, of the City of Rosemount,
Minnesota, a municipal corporation under the laws of the State of Minnesota, on behalf of the City.
354677v2 CBR RS220 -223 4
CITY OF ROSEMOUNT
William Droste, Mayor
And by:
Amy Domeier, City Clerk
Notary Public
STATE OF MINNESOTA
ss..
COUNTY OF HENNEPIN
OWNER
The foregoing instrument was acknowledged before me this day of
2009, by the of
The Pemtom Land Company, a corporation under the laws of Minnesota by and on behalf of said
corporation.
354677v2 CBR RS220 -223 5
THE PEMTOM LAND COMPANY
By
DANIEL J. HERBST
President
Notary public
STATE OF MINNESOTA
COUNTY OF
ss..
354677v2 CBR RS220 -223 6
ARCON DEVELOPMENT, INC.
By
Scott Johnson
President
The foregoing instrument was acknowledged before me this day of
2009, by Scott Johnson, the President of Arcon Development, Inc.,
a corporation under the laws of Minnesota by and on behalf of said corporation.
Notary Public
John P. Wiederhold
Judy Wiederhold
STATE OF MINNESOTA
COUNTY OF DAKOTA
The foregoing instrument was acknowledged before me this
2009, by John P. Wiederhold and Judy Wiederhold, husband and wife.
ss.:
354677v2 CBR RS220 -223 7
Notary Public
day of
STATE OF NEVADA
COUNTY OF
ss.:
The foregoing instrument was acknowledged before me this day of
2009, by Thomas McCarthy, a single person.
354677v2 CBR RS220 -223 8
Thomas McCarthy
Notary Public
STATE OF OREGON
COUNTY OF
ss.:
354677v2 CBR RS220 -223 9
Mary Louise Daily
John Daily
The foregoing instrument was acknowledged before me this day of
2009, by Mary Louise Daily and John Daily, wife and husband.
Notary Public
STATE OF MINNESOTA
COUNTY OF DAKOTA
354677v2 CBR RS220 -223
ss.:
Cindy McNary
Richard McNary
The foregoing instrument was acknowledged before me this day of
2009, by Cindy McNary and Richard McNary, wife and husband.
Notary Public
10
STATE OF MINNESOTA
COUNTY OF HENNEPIN
354677v2 CBR RS220 -223
Patricia Dziedzic
Walter Dziedzic
The foregoing instrument was acknowledged before me this day of
2009, by Patricia Dziedzic and Walter Dziedzic, wife and husband.
Notary Public
11
Outlot J, PRESTWICK PLACE, according to the plat on file and of record in the office
of the County Recorder, Dakota County, Minnesota.
354677v2 CBR RS220 -223
Exhibit A
12
Exhibit B
Description of the Project
Upgrade of an existing 28' (typical) wide, rural, two -lane gravel roadway (County Road 73 also
known as Akron Avenue) between County State Aid Highway 42 and Bonaire Path, to a 58'
(typical) wide, urban, two -lane paved roadway with center medians and turn lanes, including
stormwater ponding and storm sewer necessary for stormwater runoff conveyance within the
project area.
354677v2 CBR RS220 -223
13
Parcel lA
34- 58600- 100 -00
354679v2 CBR RS220 -223
ESCROW AGREEMENT
THIS AGREEMENT entered into this day of 2009, by and
between Mary Louise Daily and John Daily, wife and husband; Patricia Dziedzic and Walter
Dziedzic, wife and husband; Thomas L. McCarthy, a single person; Cynthia McNary and Richard
McNary, wife and husband; John P. Wiederhold and Judith Wiederhold, husband and wife are the
fee owners and Arcon Development, Inc., a Minnesota corporation and The Pemtom Land
Company, a Minnesota corporation are contract for deed vendees (collectively "Owner"), City of
Rosemount, a Minnesota municipal corporation, "City") and KENNEDY GRAVEN,
CHARTERED "Escrow Agent" or "Agent
RECITALS
A. City proposes to improve Akron Avenue/County Road No. 73 by reconstruction of
the roadway, addition of curb and gutter, construction of a trail or sidewalk and associated storm
sewer improvements "City Project 399
B. Owner is the fee owner and contract for deed vendee as described above of certain
real property (the "Property"), legally described as follows:
Outlot J, PRESTWICK PLACE, according to the plat on file and of record in
the office of the County Recorder, Dakota County, Minnesota.
C. City has determined that it requires certain easements from Owner in order to
construct City Project No. 399 (the "Easements
D. City proposes to finance the construction of City Project No. 399 by using federal
funds and by levying special assessments against benefitted properties, including the
Property.
E. Owner desires the City to proceed with the construction of City Project No. 399 if,
and only if, adequate funding, including federal funding, is available. Owner is
willing to convey the necessary easements for City Project No. 399 and to petition
for construction of City Project No. 417, provided adequate funding is available to
offset the costs of the Project.
AGREEMENT
The parties agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated into
this Agreement by reference.
2. Escrowed Instruments. Escrow Agent acknowledges and agrees that it has received
from Owner (i) an executed and acknowledged original of copy of an instrument conveying the
Easements to City (ii) an executed and acknowledged original of a Petition and Waiver Agreement
for the construction of City Project No. 399, and (iii) an Easement and Trunk Area Charge Credit
Agreement (collectively, the "Instruments Escrow Agent shall hold the Escrowed Instruments in
a secure location until such time, if any, that Escrow Agent receives notice from City as provided in
Section 3 below.
3. Delivery and Recording of Instrument. If City secures all needed easements and
secures sufficient funds for City Project 399, including federal funds, and adopts a resolution
ordering City Project 399, City may provide written notice to Escrow Agent, with a copy to Owner,
directing Escrow Agent to release the Instruments from escrow and deliver the same to City for
execution and recording by the City. Within two business days after receiving such notice, Escrow
Agent shall release the Instruments from escrow and deliver the same to City.
4. Release of Instruments. If City has not directed Escrow Agent to release the
Instruments from escrow on or before December 31, 2011, within two business days after receiving
written demand from Owner, Escrow Agent shall deliver the original Instruments to Owner for
destruction.
5. Notices. Any notice required hereunder shall be given in writing, signed by the
party giving notice, personally delivered or mailed by certified or registered mail, return receipt
requested, to the parties' respective addresses as set forth below:
To Escrow Agent:
To Owner:
Copy to:
To City:
Kennedy Graven, Chartered
ATTN: Corrine A. Heine
200 South Sixth Street, Suite 470
Minneapolis, MN 55402
City of Rosemount
Attn: Andy Brotzler
2875 145 St. W.
Rosemount, MN 55068
Notice shall be deemed delivered (a) in the case of personal delivery, on the date when personally
delivered; or (b) in the case of certified or registered mail, on the date which is one day after
deposited in the United States mail with sufficient postage to effect such delivery. Each party may
change the address to which notice must be given by delivery of written notice to the other parties in
accordance with this Section 6.
6.. Escrow Agent Liability. The sole duties of Escrow Agent shall be those described
herein, and Escrow Agent shall be under no obligation to determine whether the other parties hereto
are complying with any requirements of law or the terms and conditions of any other agreements
354679v2 CBR RS220 -223
among said parties. Escrow Agent may conclusively rely upon and shall be protected in acting on
any notice believed by it to be genuine and to have been signed or presented by the proper party or
parties, consistent with reasonable due diligence on Escrow Agent's part. Escrow Agent shall have
no duty or liability to verify any such notice, and its sole responsibility shall be to act expressly as
set forth in this Escrow Agreement.
Owner and City understand that Agent is legal counsel to the City and each consents to
Agent's serving as Escrow Agent notwithstanding such representation. In the event Agent
determines, in its sole discretion, that it cannot continue to serve as Escrow Agent herein, Agent
shall deposit the Instruments with Old Republic National Title Insurance Company or such other
Escrow Agent acceptable to Owner and City. Owner consents to Agent's continued representation
of City, and City agrees to pay all escrow fees charged by the substitute Escrow Agent.
7. This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.. This Agreement can be amended or modified only by a writing signed by
the parties hereto. This Agreement shall be governed by the laws of the State of Minnesota.
8. This Agreement may be executed in several counterparts and all such executed
counterparts shall constitute one agreement, binding on all of the parties hereto, notwithstanding
that all of the parties hereto are not signatories to the original or to the same counterpart.
354679v2 CBR RS220 -223
[Signatures on following pages]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
354679v2 CBR RS220 -223
OWNER:
THE PEMTOM LAND COMPANY
By
DANIEL J. HERBST
President
[Signature page to Escrow Agreement]
354679v2 CBR RS220 -223
ARCON DEVELOPMENT, INC.
By
Scott Johnson
President
[Signature page to Escrow Agreement]
354679V2 CBR RS220 -223
John P. Wiederhold
Judy Wiederhold
[Signature page to Escrow Agreement]
354679v2 CBR RS220 -223
Thomas McCarthy
[Signature page to Escrow Agreement]
354679v2 CBR RS220 -223
Mary Louise Daily
John Daily
[Signature page to Escrow Agreement]
354679v2 CBR RS220 -223
Cindy McNary
Richard McNary
[Signature page to Escrow Agreement]
354679v2 CBR RS220 -223
Patricia Dziedzic
Walter Dziedzic
354679v2 CBR RS220 -223
CITY:
CITY OF ROSEMOUNT
By:
Its Mayor
By:
Its City Clerk
[Signature page to Escrow Agreement]
354679v2 CBR RS220 -223
ESCROW AGENT:
KENNEDY GRAVEN, CHARTERED
By:
Its: Director
[Signature page to Escrow Agreement]
Parcel 1B
34- 58600 130 -00
PETITION AND WAIVER AGREEMENT
This Agreement made this day of 2009, by and between the City of
Rosemount, a Minnesota municipal corporation "City"), and Dakota County Community
Development Agency, a public body corporate and politic organized under the laws of the State of
Minnesota "Owner").
WITNESSETH:
WHEREAS, the Owner is the fee owner of certain real property (the "Subject Property
located in the City the legal description of which is set forth on Exhibit A, attached hereto and
hereby made a part hereof; and
WHEREAS, the Owner desires to have certain public improvements constructed to serve
the Subject Property as described in Exhibit B, attached hereto and hereby made a part hereof
(hereinafter referred to as the "Improvement Project and
WHEREAS, the Owner wishes for the City to construct the Improvement Project without
notice of hearing or hearing on the Improvement Project, and without notice of hearing or hearing
on the special assessments levied to finance the Improvement Project, and to levy $21,504.00 of the
cost of the Improvement Project against the Subject Property; and
WHEREAS, the City is willing to construct the Improvement Project in accordance with the
request of the Owner and without such notices or hearings, provided the assurances and covenants
hereinafter stated are made by the Owner to ensure that the City will have valid and collectable
special assessments as they relate to the Subject Property to finance the costs of the Improvement
Project; and
1
WHEREAS, were it not for the assurances and covenants hereinafter provided, the City
would not construct the Improvement Project without such notices and hearings and is doing so
solely at the behest, and for the benefit of, the Owner.
NOW, THEREFORE, ON THE BASIS OF THE MUTUAL COVENANTS AND
AGREEMENT HEREINAFTER PROVIDED, IT IS HEREBY AGREED BY AND BETWEEN
THE PARTIES HERETO AS FOLLOWS:
1. The Owner hereby petitions the City for construction of the Improvement Project.
2. The Owner represents and warrants that it is the owner of 100 percent of the Subject
Property, that it has full legal power and authority to encumber the Subject Property as
herein provided, and that as of the date hereof, it has fee simple absolute title in the Subject
Property, which is not subject to any liens, interests or encumbrances, except as listed on the
attached Exhibit C.
3. The Owner requests that $21,504.00 of the cost of the Improvement Project be assessed
against the Subject Property.
4. The Owner waives notice of hearing and hearing pursuant to Minn Stat. Section 429.031,
on the Improvement Project and notice of hearing and hearing on the special assessments
levied to finance the Improvement Project pursuant to Minn. Stat. Section 429.061, and
specifically requests that the Improvement Project be constructed and special assessments
levied against the Subject Property therefor without hearings.
5. The Owner waives the right to appeal the levy of the special assessments in accordance with
this Agreement pursuant to Minn. Stat. Section 429.081, or reapportionment thereof upon
land division pursuant to Min. Stat. Section 429.071, Subd. 3, or otherwise, and further
specifically agrees with respect to such special assessments against the Subject Property or
reapportionment that:
a. Any requirements of Minn. Stat., Chapter 429 with which the City does not comply
are hereby waived by the Owner;
b. The increase in fair market value of the Subject Property resulting from construction
of the Improvement Project will be at least equal to the amount specified in
paragraph 3, and that such increase in fair market value is a special benefit to the
Subject Property; and
c. Assessment of amount specified in paragraph 3 against the Subject Property is
reasonable, fair and equitable.
2
6. The City will defer the payment of the special assessment for the Improvement Project,
without interest, until the Subject Property is subdivided or improved as defined below:
a. The Subject Property will be deemed to be subdivided upon final approval by the
City Council of a subdivision or division of land that creates buildable lots or parcels
of land. Subdivision into outlots that are not buildable will not be deemed to be a
subdivision.
b. The Subject Property will be deemed to be improved if the owner of the Subject
Property or the owner's authorized representative applies for and is granted a permit
for the construction of any residential, commercial, agricultural, industrial or other
building or structure that requires a building permit (other than permits to rebuild
existing buildings destroyed by fire or other casualty).
c. The deferment of the special assessment for the Improvement Project will terminate
upon the subdivision or improvement of the Subject Property as defined in
paragraphs a. and b. above. The special assessments may be paid without interest
until the earlier of: 1) 90 days after termination of the deferment; or 2) the issuance
of a certificate of occupancy for an improvement or release of a final plat for a
subdivision. If the special assessment is not paid by such date, interest on the
assessment will accrue at the rate of five percent per year from the termination of the
deferral until December 31 of the year in which the assessment is paid. The
assessment will be due and payable with ad valorem real estate taxes in the year
following the first November 30 occurring after the termination of the deferral of
the assessment.
7. Owner represents and warrants that the Subject Property is not so classified for tax purposes
as to result in deferral of the obligation to pay special assessments; and Owner agrees that it
will take no action to secure such tax status for the Subject Property during the term of this
Agreement.
8. The covenants, waivers and agreements contained in this Agreement shall bind the
successors and assigns of the Owner and shall run with the Subject Property and bind all
successors in interest thereof. It is the intent of the parties hereto that this Agreement be in a
form which is recordable among the land records of Dakota County, Minnesota; and they
agree to make any changes in this Agreement that may be necessary to effect the recording
and filing of this Agreement against the title of the Subject Property.
9. The City may abandon the Improvement Project if it is unable to secure agreement of all
affected landowners or necessary rights -of -way for the Improvement Project or determines
that proceeding with the Improvement Project is not in the public interest. This Agreement
will be terminated if the City Council has not awarded a contract for the construction of the
Improvement Project by December 31, 2011.
10. If not terminated in accordance with paragraph 9, this Agreement shall terminate upon the
final payment of all special assessments levied against the Subject Property regarding the
3
above.
Improvement Project, and the City shall thereupon execute and deliver such documents, in
recordable form, as are necessary to extinguish its rights hereunder.
IN WITNESS WHEREOF, the parties have set their hands the day and year first written
STATE OF MINNESOTA
ss.
COUNTY OF
NOTARY STAMP OR SEAL
4
CITY OF ROSEMOUNT
By:
William Droste, Mayor
And by:
Amy Domeier, City Clerk
OWNER
DAKOTA COUNTY COMMUNITY
DEVELOPMENT AGENCY
By
Mark Ulfers
Its Executive Director
The foregoing instrument was acknowledged before me this day of 2009,
by William Droste and Amy Domeier, the Mayor and Clerk, respectively, of the City of Rosemount,
Minnesota, a municipal corporation under the laws of the State of Minnesota, on behalf of the City.
Notary Public
STATE OF MINNESOTA
SS.
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2009 by Mark Ulfers, Executive Director of Dakota County Community
Development Agency, a public body corporate and politic under the laws of the State of
Minnesota, on behalf of the corporation, Grantor.
NOTARY STAMP OR SEAL
5
Notary Public
Exhibit A
Outlot M, PRESTWICK PLACE, according to the plat on file and of record in the office
of the County Recorder, Dakota County, Minnesota.
6
Exhibit B
Description of the Project
Upgrade of an existing 28' (typical) wide, rural, two -lane gravel roadway (County Road 73 also
known as Akron Avenue) between County State Aid Highway 42 and Bonaire Path, to a 58'
(typical) wide, urban, two -lane paved roadway with center medians and turn lanes, including
stormwater ponding and storm sewer necessary for stormwater runoff conveyance within the
project area.
7
Parcel 1B
34- 58600- 130 -00
ESCROW AGREEMENT
THIS AGREEMENT entered into this day of 2009, by and
between Dakota County Community Development Agency, a public body corporate and politic
organized under the laws of the State of Minnesota "Owner City of Rosemount, a Minnesota
municipal corporation, "City") and KENNEDY GRAVEN, CHARTERED ("Escrow Agent" or
"Agent
RECITALS
A. City proposes to improve Akron Avenue/County Road No. 73 by reconstruction of
the roadway, addition of curb and gutter, construction of a trail or sidewalk and associated storm
sewer improvements "City Project 399
B. Owner is the fee owner of certain real property (the "Property"), legally described as
follows:
Outlot M, PRESTWICK PLACE, according to the plat on file and of record in the
office of the County Recorder, Dakota County, Minnesota.
C. City has determined that it requires certain easements from Owner in order to
construct City Project No. 399 (the "Easements
D. City proposes to finance the construction of City Project No. 399 by using federal
funds and by levying special assessments against benefitted properties, including the
Property.
E. Owner desires the City to proceed with the construction of City Project No. 399 if,
and only if, adequate funding, including federal funding, is available. Owner is
willing to convey the necessary easements for City Project No. 399 and to petition
for construction of City Project No. 417, provided adequate funding is available to
offset the costs of the Project.
AGREEMENT
The parties agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated into
this Agreement by reference.
2. Escrowed Instruments. Escrow Agent acknowledges and agrees that it has received
from Owner (i) an executed and acknowledged original of copy of an instrument conveying the
Easements to City and (ii) an executed and acknowledged original of a Petition and Waiver
Agreement for the construction of City Project No. 399 (collectively, the "Instruments Escrow
1
Agent shall hold the Escrowed Instruments in a secure location until such time, if any, that Escrow
Agent receives notice from City as provided in Section 3 below.
3. Delivery and Recording of Instrument. If City secures all needed easements and
secures sufficient funds for City Project 399, including federal funds, and adopts a resolution
ordering City Project 399, City may provide written notice to Escrow Agent, with a copy to Owner,
directing Escrow Agent to release the Instruments from escrow and deliver the same to City for
execution and recording by the City. Within two business days after receiving such notice, Escrow
Agent shall release the Instruments from escrow and deliver the same to City.
4. Release of Instruments. If City has not directed Escrow Agent to release the
Instruments from escrow on or before December 31, 2011, within two business days after receiving
written demand from Owner, Escrow Agent shall deliver the original Instruments to Owner for
destruction.
5. Notices. Any notice required hereunder shall be given in writing, signed by the
party giving notice, personally delivered or mailed by certified or registered mail, return receipt
requested, to the parties' respective addresses as set forth below:
To Escrow Agent:
To Owner:
Copy to:
To City:
Kennedy Graven, Chartered
ATTN: Corrine A. Heine
200 South Sixth Street, Suite 470
Minneapolis, MN 55402
Dakota County CDA
1228 town Centre Drive
Eagan, MN 55123
City of Rosemount
Attn: Andy Brotzler
2875 145 St. W.
Rosemount, MN 55068
Notice shall be deemed delivered (a) in the case of personal delivery, on the date when personally
delivered; or (b) in the case of certified or registered mail, on the date which is one day after
deposited in the United States mail with sufficient postage to effect such delivery. Each party may
change the address to which notice must be given by delivery of written notice to the other parties in
accordance with this Section 6.
6.. Escrow Agent Liability. The sole duties of Escrow Agent shall be those described
herein, and Escrow Agent shall be under no obligation to determine whether the other parties hereto
are complying with any requirements of law or the terms and conditions of any other agreements
2
among said parties. Escrow Agent may conclusively rely upon and shall be protected in acting on
any notice believed by it to be genuine and to have been signed or presented by the proper party or
parties, consistent with reasonable due diligence on Escrow Agent's part. Escrow Agent shall have
no duty or liability to verify any such notice, and its sole responsibility shall be to act expressly as
set forth in this Escrow Agreement.
Owner and City understand that Agent is legal counsel to the City and each consents to
Agent's serving as Escrow Agent notwithstanding such representation. In the event Agent
determines, in its sole discretion, that it cannot continue to serve as Escrow Agent herein, Agent
shall deposit the Instruments with Old Republic National Title Insurance Company or such other
Escrow Agent acceptable to Owner and City. Owner consents to Agent's continued representation
of City, and City agrees to pay all escrow fees charged by the substitute Escrow Agent.
7. This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.. This Agreement can be amended or modified only by a writing signed by
the parties hereto. This Agreement shall be governed by the laws of the State of Minnesota.
[Signatures on following three pages]
3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
[Signature page to Escrow Agreement]
4
OWNER:
DAKOTA COUNTY COMMUNITY
DEVELOPMENT AGENCY
By
Mark Ulfers
Its Executive Director
CITY:
CITY OF ROSEMOUNT
By:
Its: Mayor
By:
Its: City Clerk
[Signature page to Escrow Agreement]
ESCROW AGENT:
KENNEDY GRAVEN, CHARTERED
By:
Its: Director
[Signature page to Escrow Agreement]
Parcel 2A
34- 02200 030 -75
This Agreement made this day of 2009, by and between the City of
Rosemount, a Minnesota municipal corporation "City and Wayne Groth and Sheila M. Groth,
husband and wife, as fee owners, and Minnova Land, LLC a Minnesota limited liability
company, as contract for deed vendee (collectively, "Owner").
WITNESSETH:
WHEREAS, the Owner holds a fee simple interest in certain real property (the "Subject
Property") located in the City the legal description of which is set forth on Exhibit A, attached
hereto and hereby made a part hereof; and
WHEREAS, the Owner desires to have certain public improvements constructed to serve
the Subject Property as described in Exhibit B, attached hereto and hereby made a part hereof
(hereinafter referred to as the "Improvement Project and
WHEREAS, the Owner wishes for the City to construct the Improvement Project without
notice of hearing or hearing on the Improvement Project, and without notice of hearing or hearing
on the special assessments levied to finance the Improvement Project, and to levy $26,504.00 of the
cost of the Improvement Project against the Subject Property; and
WHEREAS, the City is willing to construct the Improvement Project in accordance with the
request of the Owner and without such notices or hearings, provided the assurances and covenants
hereinafter stated are made by the Owner to ensure that the City will have valid and collectable
special assessments as they relate to the Subject Property to finance the costs of the Improvement
Project; and
WHEREAS, were it not for the assurances and covenants hereinafter provided, the City
354671v2 CBR RS220 -223
PETITION AND WAIVER AGREEMENT
1
would not construct the Improvement Project without such notices and hearings and is doing so
solely at the behest, and for the benefit of, the Owner.
NOW, THEREFORE, ON THE BASIS OF THE MUTUAL COVENANTS AND
AGREEMENT HEREINAFTER PROVIDED, IT IS HEREBY AGREED BY AND BETWEEN
THE PARTIES HERETO AS FOLLOWS:
1. The Owner hereby petitions the City for construction of the Improvement Project.
2. The Owner represents and warrants that it is the owner of 100 percent of the Subject
Property, that it has full legal power and authority to encumber the Subject Property as
herein provided, and that as of the date hereof, it has fee simple absolute title in the Subject
Property, which is not subject to any liens, interests or encumbrances, except as listed on the
attached Exhibit C.
3. The Owner requests that $26,504.00 of the cost of the Improvement Project be assessed
against the Subject Property. This agreement relates only to Rosemount City Project No.
399 and is not affected by the easement agreement recorded as document number 2600994
with the Dakota Count Recorder on July 9, 2008, relating to City Project No. 417.
4. The Owner waives notice of hearing and hearing pursuant to Minn. Stat. Section 429.031,
on the Improvement Project and notice of hearing and hearing on the special assessments
levied to finance the Improvement Project pursuant to Minn. Stat. Section 429.061, and
specifically requests that the Improvement Project be constructed and special assessments
levied against the Subject Property therefor without hearings.
5. The Owner waives the right to appeal the levy of the special assessments in accordance with
this Agreement pursuant to Minn. Stat. Section 429.081, or reapportionment thereof upon
land division pursuant to Min. Stat. Section 429.071, Subd. 3, or otherwise, and further
specifically agrees with respect to such special assessments against the Subject Property or
reapportionment that:
a. Any requirements of Minn. Stat., Chapter 429 with which the City does not comply
are hereby waived by the Owner;
b. The increase in fair market value of the Subject Property resulting from construction
of the Improvement Project will be at least equal to the amount specified in
paragraph 3, and that such increase in fair market value is a special benefit to the
Subject Property; and
c. Assessment of amount specified in paragraph 3 against the Subject Property is
reasonable, fair and equitable.
6. The City will defer the payment of the special assessment for the Improvement Project,
354671v2 CBR RS220 -223
2
without interest, until the Subject Property is subdivided or improved as defined below:
a. The Subject Property will be deemed to be subdivided upon final approval by the
City Council of a subdivision or division of land that creates buildable lots or parcels
of land. Subdivision into outlots that are not buildable will not be deemed to be a
subdivision.
b. The Subject Property will be deemed to be improved if the owner of the Subject
Property or the owner's authorized representative applies for and is granted a permit
for the construction of any residential, commercial, agricultural, industrial or other
building or structure that requires a building permit (other than permits to rebuild
existing buildings destroyed by fire or other casualty).
c. The deferment of the special assessment for the Improvement Project will terminate
upon the subdivision or improvement of the Subject Property as defined in
paragraphs a. and b. above. The special assessments may be paid without interest
until the earlier of: 1) 90 days after termination of the deferment; or 2) the issuance
of a certificate of occupancy for an improvement or release of a final plat for a
subdivision. If the special assessment is not paid by such date, interest on the
assessment will accrue at the rate of five percent per year from the termination of the
deferral until December 31s of the year in which the assessment is paid. The
assessment will be due and payable with ad valorem real estate taxes in the year
following the first November 30 occurring after the termination of the deferral of
the assessment.
7. The Subject Property is classified as Agricultural Preserve under Minnesota Statutes,
Chapter 473H. Owner acknowledges that Minnesota Statutes, Section 473H.11 provides
that public roads and other public improvements, such as the Improvement Project, built
adjacent to agricultural preserves, are deemed to be of no benefit to land and buildings in
agricultural preserves. Owner waives his right to object to, challenge or appeal the special
assessments levied in accordance with this agreement on the basis of Minnesota Statutes,
Section 473H.11.
8. The covenants, waivers and agreements contained in this Agreement shall bind the
successors and assigns of the Owner and shall run with the Subject Property and bind all
successors in interest thereof. It is the intent of the parties hereto that this Agreement be in a
form which is recordable among the land records of Dakota County, Minnesota; and they
agree to make any changes in this Agreement that may be necessary to effect the recording
and filing of this Agreement against the title of the Subject Property.
9. The City may abandon the Improvement Project if it is unable to secure agreement of all
affected landowners or necessary rights -of -way for the Improvement Project or determines
that proceeding with the Improvement Project is not in the public interest. This Agreement
will be terminated if the City Council has not awarded a contract for the construction of the
Improvement Project by December 31, 2011.
10. If not terminated in accordance with paragraph 9, this Agreement shall terminate upon the
354671v2 CBR RS220 -223
3
above.
final payment of all special assessments levied against the Subject Property regarding the
Improvement Project, and the City shall thereupon execute and deliver such documents, in
recordable form, as are necessary to extinguish its rights hereunder.
IN WITNESS WHEREOF, the parties have set their hands the day and year first written
354671v2 CBR RS220 -223
4
CITY OF ROSEMOUNT
By:
William Droste, Mayor
And by:
Amy Domeier, City Clerk
OWNER
Wayne Groth
Sheila M. Groth
MINNOVA LAND, LLC
By:
Its:
STATE OF MINNESOTA
COUNTY OF
The foregoing instrument was acknowledged before me this day of 2009,
by William Droste and Amy Domeier, the Mayor and Clerk, respectively, of the City of Rosemount,
Minnesota, a municipal corporation under the laws of the State of Minnesota, on behalf of the City.
STATE OF MINNESOTA
SS.
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2009, by Wayne Groth and Sheila M. Groth, husband and wife, Grantors.
NOTARY STAMP OR SEAL
STATE OF MINNESOTA
SS.
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2009, by the of Minnova
Land, LLC a limited liability company under the laws of the State of Minnesota, Grantors.
NOTARY STAMP OR SEAL
354671v2 CBR RS220 -223
ss.
5
Notary Public
Notary Public
Notary Public
That part of the West half of Southeast Quarter of Section 22, Township 115, Range 19,
Dakota County, Minnesota lying southerly of the railroad right of way.
354671v2 CBR RS220 -223
Exhibit A
6
Exhibit B
Description of the Project
Upgrade of an existing 28' (typical) wide, rural, two -lane gravel roadway (County Road 73 also
known as Akron Avenue) between County State Aid Highway 42 and Bonaire Path, to a 58'
(typical) wide, urban, two -lane paved roadway with center medians and turn lanes, including
stormwater ponding and storm sewer necessary for stormwater runoff conveyance within the
project area.
354671v2 CBR RS220 -223
7
Parcel 2A
34- 02200 030 -75
ESCROW AGREEMENT
THIS AGREEMENT entered into this day of 2009, by and
between Wayne Groth and Sheila M. Groth, husband and wife, as fee owners, and Minnova Land,
LLC, a Minnesota limited liability company, as contract for deed vendee (collectively, "Owner"),
City of Rosemount, a Minnesota municipal corporation, "City") and KENNEDY GRAVEN,
CHARTERED "Escrow Agent" or "Agent
RECITALS
A. City proposes to improve Akron Avenue/County Road No. 73 by reconstruction of
the roadway, addition of curb and gutter, construction of a trail or sidewalk and associated storm
sewer improvements "City Project 399
B. Owner is the owner of certain real property (the "Property"), legally described as
follows:
C. City has determined that it requires certain easements from Owner in order to
construct City Project No. 399 (the "Easements
D. City proposes to finance the construction of City Project No. 399 by using federal
funds and by levying special assessments against benefitted properties, including the
Property.
E. Owner desires the City to proceed with the construction of City Project No. 399 if,
and only if, adequate funding, including federal funding, is available. Owner is
willing to convey the necessary easements for City Project No. 399 and to petition
for construction of City Project No. 417, provided adequate funding is available to
offset the costs of the Project.
The parties agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated into
this Agreement by reference.
2. Escrowed Instruments. Escrow Agent acknowledges and agrees that it has received
from Owner (i) an executed and acknowledged original of copy of an instrument conveying the
Easements to City (ii) an executed and acknowledged original of a Petition and Waiver Agreement
for the construction of City Project No. 399, and (iii) an Easement and Trunk Area Charge Credit
Agreement (collectively, the "Instruments Escrow Agent shall hold the Escrowed Instruments in
354670v2 CBR RS220 -223
That part of the West half of Southeast Quarter of Section 22, Township 115,
Range 19, Dakota County, Minnesota lying southerly of the railroad right of
way.
AGREEMENT
a secure location until such time, if any, that Escrow Agent receives notice from City as provided in
Section 3 below.
3. Delivery and Recording of Instrument. If City secures all needed easements and
secures sufficient funds for City Project 399, including federal funds, and adopts a resolution
ordering City Project 399, City may provide written notice to Escrow Agent, with a copy to Owner,
directing Escrow Agent to release the Instruments from escrow and deliver the same to City for
execution and recording by the City. Within two business days after receiving such notice, Escrow
Agent shall release the Instruments from escrow and deliver the same to City.
4. Release of Instruments. If City has not directed Escrow Agent to release the
Instruments from escrow on or before December 31, 2011, within two business days after receiving
written demand from Owner, Escrow Agent shall deliver the original Instruments to Owner for
destruction.
5. Notices. Any notice required hereunder shall be given in writing, signed by the
party giving notice, personally delivered or mailed by certified or registered mail, return receipt
requested, to the parties' respective addresses as set forth below:
To Escrow Agent:
To Owner:
Copy to:
To City:
Kennedy Graven, Chartered
ATTN: Corrine A. Heine
200 South Sixth Street, Suite 470
Minneapolis, MN 55402
Minnova Land, LLC
11430 Zion Circle
Bloomington, MN 55437
City of Rosemount
Attn: Andy Brotzler
2875 145 St. W.
Rosemount, MN 55068
Notice shall be deemed delivered (a) in the case of personal delivery, on the date when personally
delivered; or (b) in the case of certified or registered mail, on the date which is one day after
deposited in the United States mail with sufficient postage to effect such delivery. Each party may
change the address to which notice must be given by delivery of written notice to the other parties in
accordance with this Section 6.
6.. Escrow Agent Liability. The sole duties of Escrow Agent shall be those described
herein, and Escrow Agent shall be under no obligation to determine whether the other parties hereto
are complying with any requirements of law or the terms and conditions of any other agreements
among said parties. Escrow Agent may conclusively rely upon and shall be protected in acting on
any notice believed by it to be genuine and to have been signed or presented by the proper party or
parties, consistent with reasonable due diligence on Escrow Agent's part. Escrow Agent shall have
no duty or liability to verify any such notice, and its sole responsibility shall be to act expressly as
set forth in this Escrow Agreement.
Owner and City understand that Agent is legal counsel to the City and each consents to
Agent's serving as Escrow Agent notwithstanding such representation. In the event Agent
determines, in its sole discretion, that it cannot continue to serve as Escrow Agent herein, Agent
shall deposit the Instruments with Old Republic National Title Insurance Company or such other
Escrow Agent acceptable to Owner and City. Owner consents to Agent's continued representation
of City, and City agrees to pay all escrow fees charged by the substitute Escrow Agent.
7. This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.. This Agreement can be amended or modified only by a writing signed by
the parties hereto. This Agreement shall be governed by the laws of the State of Minnesota.
[Signatures on following three pages]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
OWNER:
Wayne Groth
Sheila M. Groth
MINNOVA LAND, LLC
[Signature page to Escrow Agreement]
By:
Its:
CITY:
CITY OF ROSEMOUNT
By:
Its Mayor
By:
Its City Clerk
[Signature page to Escrow Agreement]
ESCROW AGENT:
KENNEDY GRAVEN, CHARTERED
By:
Its: Director
[Signature page to Escrow Agreement]
Parcel 2B
34- 02200 020 -75
PETITION AND WAIVER AGREEMENT
This Agreement made this day of 2009, by and between the City of
Rosemount, a Minnesota municipal corporation "City"), and Wayne Groth and Sheila M. Groth,
husband and wife, as fee owners, and Minnova Land, LLC a Minnesota limited liability
company, as contract for deed vendee (collectively, "Owner").
WITNESSETH:
WHEREAS, the Owner collectively holds a fee simple interest in certain real property (the
"Subject Property") located in the City the legal description of which is set forth on Exhibit A,
attached hereto and hereby made a part hereof; and
WHEREAS, the Owner desires to have certain public improvements constructed to serve
the Subject Property as described in Exhibit B, attached hereto and hereby made a part hereof
(hereinafter referred to as the "Improvement Project and
WHEREAS, the Owner wishes for the City to construct the Improvement Project without
notice of hearing or hearing on the Improvement Project, and without notice of hearing or hearing
on the special assessments levied to finance the Improvement Project, and to levy $13,211.00 of the
cost of the Improvement Project against the Subject Property; and
WHEREAS, the City is willing to construct the Improvement Project in accordance with the
request of the Owner and without such notices or hearings, provided the assurances and covenants
hereinafter stated are made by the Owner to ensure that the City will have valid and collectable
special assessments as they relate to the Subject Property to finance the costs of the Improvement
Project; and
WHEREAS, were it not for the assurances and covenants hereinafter provided, the City
354654v2 CBR RS220 -223 1
would not construct the Improvement Project without such notices and hearings and is doing so
solely at the behest, and for the benefit of, the Owner.
NOW, THEREFORE, ON THE BASIS OF THE MUTUAL COVENANTS AND
AGREEMENT HEREINAFTER PROVIDED, IT IS HEREBY AGREED BY AND BETWEEN
THE PARTIES HERETO AS FOLLOWS:
1. The Owner hereby petitions the City for construction of the Improvement Project.
2. The Owner represents and warrants that it is the owner of 100 percent of the Subject
Property, that it has full legal power and authority to encumber the Subject Property as
herein provided, and that as of the date hereof, it has fee simple absolute title in the Subject
Property, which is not subject to any liens, interests or encumbrances, except as listed on the
attached Exhibit C.
3. The Owner requests that $13,211.00 of the cost of the Improvement Project be assessed
against the Subject Property. This agreement relates only to Rosemount City Project No.
399 and is not affected by the easement agreement recorded as document number 2600994
with the Dakota Count Recorder on July 9, 2008, relating to City Project No. 417.
4. The Owner waives notice of hearing and hearing pursuant to Minn. Stat. Section 429.031,
on the Improvement Project and notice of hearing and hearing on the special assessments
levied to finance the Improvement Project pursuant to Minn. Stat. Section 429.061, and
specifically requests that the Improvement Project be constructed and special assessments
levied against the Subject Property therefor without hearings.
5. The Owner waives the right to appeal the levy of the special assessments in accordance with
this Agreement pursuant to Minn Stat. Section 429.081, or reapportionment thereof upon
land division pursuant to Min. Stat. Section 429.071, Subd. 3, or otherwise, and further
specifically agrees with respect to such special assessments against the Subject Property or
reapportionment that:
a. Any requirements of Minn. Stat., Chapter 429 with which the City does not comply
are hereby waived by the Owner;
b. The increase in fair market value of the Subject Property resulting from construction
of the Improvement Project will be at least equal to the amount specified in
paragraph 3, and that such increase in fair market value is a special benefit to the
Subject Property; and
c. Assessment of amount specified in paragraph 3 against the Subject Property is
reasonable, fair and equitable.
6. The City will defer the payment of the special assessment for the Improvement Project,
without interest, until the Subject Property is subdivided or improved as defined below:
354654v2 CBR RS220 -223 2
a. The Subject Property will be deemed to be subdivided upon final approval by the
City Council of a subdivision or division of land that creates buildable lots or parcels
of land. Subdivision into outlots that are not buildable will not be deemed to be a
subdivision.
b. The Subject Property will be deemed to be improved if the owner of the Subject
Property or the owner's authorized representative applies for and is granted a permit
for the construction of any residential, commercial, agricultural, industrial or other
building or structure that requires a building permit (other than permits to rebuild
existing buildings destroyed by fire or other casualty).
c. The deferment of the special assessment for the Improvement Project will terminate
upon the subdivision or improvement of the Subject Property as defined in
paragraphs a. and b. above. The special assessments may be paid without interest
until the earlier of: 1) 90 days after termination of the deferment; or 2) the issuance
of a certificate of occupancy for an improvement or release of a final plat for a
subdivision. If the special assessment is not paid by such date, interest on the
assessment will accrue at the rate of five percent per year from the termination of the
deferral until December 31s of the year in which the assessment is paid. The
assessment will be due and payable with ad valorem real estate taxes in the year
following the first November 30 occurring after the termination of the deferral of
the assessment.
7. The Subject Property is classified as Agricultural Preserve under Minnesota Statutes,
Chapter 473H. Owner acknowledges that Minnesota Statutes, Section 473H.11 provides
that public roads and other public improvements, such as the Improvement Project, built
adjacent to agricultural preserves, are deemed to be of no benefit to land and buildings in
agricultural preserves. Owner waives his right to object to, challenge or appeal the special
assessments levied in accordance with this agreement on the basis of Minnesota Statutes,
Section 473H.11.
8. The covenants, waivers and agreements contained in this Agreement shall bind the
successors and assigns of the Owner and shall run with the Subject Property and bind all
successors in interest thereof. It is the intent of the parties hereto that this Agreement be in a
form which is recordable among the land records of Dakota County, Minnesota; and they
agree to make any changes in this Agreement that may be necessary to effect the recording
and filing of this Agreement against the title of the Subject Property.
9. The City may abandon the Improvement Project if it is unable to secure agreement of all
affected landowners or necessary rights -of -way for the Improvement Project or determines
that proceeding with the Improvement Project is not in the public interest. This Agreement
will be terminated if the City Council has not awarded a contract for the construction of the
Improvement Project by December 31, 2011.
10. If not terminated in accordance with paragraph 9, this Agreement shall terminate upon the
final payment of all special assessments levied against the Subject Property regarding the
Improvement Project, and the City shall thereupon execute and deliver such documents, in
354654v2 CBR RS220 -223 3
above.
recordable form, as are necessary to extinguish its rights hereunder.
IN WITNESS WHEREOF, the parties have set their hands the day and year first written
354654v2 CBR RS220 -223 4
CITY OF ROSEMOUNT
By:
William Droste, Mayor
And by:
Amy Domeier, City Clerk
OWNER
Wayne Groth
Sheila M. Groth
MINNOVA LAND, LLC
By:
Its:
STATE OF MINNESOTA
COUNTY OF
NOTARY STAMP OR SEAL
COUNTY OF
NOTARY STAMP OR SEAL
ss.
The foregoing instrument was acknowledged before me this day of 2009,
by William Droste and Amy Domeier, the Mayor and Clerk, respectively, of the City of Rosemount,
Minnesota, a municipal corporation under the laws of the State of Minnesota, on behalf of the City.
STATE OF MINNESOTA
SS.
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2009, by Wayne Groth and Sheila M. Groth, husband and wife.
STATE OF MINNESOTA
SS.
The foregoing instrument was acknowledged before me this day of
2009, by the of Minnova
Land, LLC a limited liability company under the laws of the State of Minnesota.
354654v2 CBR RS220 -223 5
Notary Public
Notary Public
Notary Public
Exhibit A
That part of the Southeast Quarter of Section 22, Township 115, Range 19, Dakota
County, Minnesota except the railroad right of way, and except the North 1203.50 feet of
the East 753.00 feet of said Southeast Quarter, and except that part of the West half of
Southeast Quarter of Section 22, Township 115, Range 19, Dakota County, Minnesota
lying southerly of the railroad right of way.
354654v2 CBR RS220 -223 6
Exhibit B
Description of the Project
1
Upgrade of an existing 28' (typical) wide, rural, two -lane gravel roadway (County Road 73 also
known as Akron Avenue) between County State Aid Highway 42 and Bonaire Path, to a 58'
(typical) wide, urban, two -lane paved roadway with center medians and turn lanes, including
stormwater ponding and storm sewer necessary for stormwater runoff conveyance within the
project area.
354654v2 CBR RS220 -223 7
Parcel 2B
34- 02200 020 -75
ESCROW AGREEMENT
THIS AGREEMENT entered into this day of 2009, by and
between Wayne Groth and Sheila M. Groth, husband and wife, as fee owners, and Minnova Land,
LLC a Minnesota limited liability company, as contract for deed vendee (collectively, "Owner
City of Rosemount, a Minnesota municipal corporation, "City") and KENNEDY GRAVEN,
CHARTERED ("Escrow Agent" or "Agent
RECITALS
A. City proposes to improve Akron Avenue/County Road No. 73 by reconstruction of
the roadway, addition of curb and gutter, construction of a trail or sidewalk and associated storm
sewer improvements "City Project 399
B. Owner collectively holds a fee simple interest in certain real property (the
"Property"), legally described as follows:
That part of the Southeast Quarter of Section 22, Township 115, Range 19,
Dakota County, Minnesota except the railroad right of way, and except the
North 1203.50 feet of the East 753.00 feet of said Southeast Quarter, and
except that part of the West half of Southeast Quarter of Section 22,
Township 115, Range 19, Dakota County, Minnesota lying southerly of the
railroad right of way.
C. City has determined that it requires certain easements from Owner in order to
construct City Project No. 399 (the "Easements
D. City proposes to finance the construction of City Project No. 399 by using federal
funds and by levying special assessments against benefitted properties, including the
Property.
E. Owner desires the City to proceed with the construction of City Project No. 399 if,
and only if, adequate funding, including federal funding, is available. Owner is
willing to convey the necessary easements for City Project No. 399 and to petition
for construction of City Project No. 417, provided adequate funding is available to
offset the costs of the Project.
AGREEMENT
The parties agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated into
this Agreement by reference.
2. Escrowed Instruments. Escrow Agent acknowledges and agrees that it has received
from Owner (i) an executed and acknowledged original of copy of an instrument conveying the
Easements to City and (ii) an executed and acknowledged original of a Petition and Waiver
354653v2 CBR RS220 -223
Agreement for the construction of City Project No. 399 (collectively, the "Instruments Escrow
Agent shall hold the Escrowed Instruments in a secure location until such time, if any, that Escrow
Agent receives notice from City as provided in Section 3 below.
3. Delivery and Recording of Instrument. If City secures all needed easements and
secures sufficient funds for City Project 399, including federal funds, and adopts a resolution
ordering City Project 399, City may provide written notice to Escrow Agent, with a copy to Owner,
directing Escrow Agent to release the Instruments from escrow and deliver the same to City for
execution and recording by the City. Within two business days after receiving such notice, Escrow
Agent shall release the Instruments from escrow and deliver the same to City.
4. Release of Instruments. If City has not directed Escrow Agent to release the
Instruments from escrow on or before December 31, 2011, within two business days after receiving
written demand from Owner, Escrow Agent shall deliver the original Instruments to Owner for
destruction.
5. Notices. Any notice required hereunder shall be given in writing, signed by the
party giving notice, personally delivered or mailed by certified or registered mail, return receipt
requested, to the parties' respective addresses as set forth below:
354653v2 CBR RS220 -223
To Escrow Agent:
To Owner: Wayne Groth and Sheila M. Groth
Copy to:
Kennedy Graven, Chartered
ATTN: Corrine A. Heine
200 South Sixth Street, Suite 470
Minneapolis, MN 55402
Minnova Land, LLC
11430 Zion Circle
Bloominton, MN 55437
To City: City of Rosemount
Attn: Andy Brotzler
2875 145 St. W.
Rosemount, MN 55068
Notice shall be deemed delivered (a) in the case of personal delivery, on the date when personally
delivered; or (b) in the case of certified or registered mail, on the date which is one day after
deposited in the United States mail with sufficient postage to effect such delivery. Each party may
change the address to which notice must be given by delivery of written notice to the other parties in
accordance with this Section 6.
6.. Escrow Agent Liability. The sole duties of Escrow Agent shall be those described
herein, and Escrow Agent shall be under no obligation to determine whether the other parties hereto
are complying with any requirements of law or the terms and conditions of any other agreements
among said parties. Escrow Agent may conclusively rely upon and shall be protected in acting on
any notice believed by it to be genuine and to have been signed or presented by the proper party or
parties, consistent with reasonable due diligence on Escrow Agent's part. Escrow Agent shall have
no duty or liability to verify any such notice, and its sole responsibility shall be to act expressly as
set forth in this Escrow Agreement.
Owner and City understand that Agent is legal counsel to the City and each consents to
Agent's serving as Escrow Agent notwithstanding such representation. In the event Agent
determines, in its sole discretion, that it cannot continue to serve as Escrow Agent herein, Agent
shall deposit the Instruments with Old Republic National Title Insurance Company or such other
Escrow Agent acceptable to Owner and City. Owner consents to Agent's continued representation
of City, and City agrees to pay all escrow fees charged by the substitute Escrow Agent.
7. This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.. This Agreement can be amended or modified only by a writing signed by
the parties hereto. This Agreement shall be governed by the laws of the State of Minnesota.
354653v2 CBR RS220 -223
[Signatures on following three pages]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
354653v2 CBR RS220 -223
OWNER:
Wayne Groth
Sheila M. Groth
[Signature page to Escrow Agreement]
MINNOVA LAND, LLC
By:
Its:
354653v2 CBR RS220 -223
CITY:
CITY OF ROSEMOUNT
By:
Its Mayor
By:
Its City Clerk
[Signature page to Escrow Agreement]
354653v2 CBR RS220 -223
ESCROW AGENT:
KENNEDY GRAVEN, CHARTERED
By:
Its: Director
[Signature page to Escrow Agreement]
Parcel 5
34- 02200 013 -50
PETITION AND WAIVER AGREEMENT
This Agreement made this day of 2009, by and between the City of
Rosemount, a Minnesota municipal corporation ("City"), and by Kogl Family Limited Partnership,
a limited partnership organized under the laws of the State of Minnesota; JMOR Real Estate
Investments, LLC, a limited liability company organized under the laws of the State of Minnesota;
and BVM Real Estate Investments, LLC, a limited liability company organized under the laws of
the State of Minnesota, (collectively "Owner
WITNESSETH:
WHEREAS, the Owner is the fee owner of certain real property (the "Subject Propert
located in the City the legal description of which is set forth on Exhibit A, attached hereto and
hereby made a part hereof; and
WHEREAS, the Owner desires to have certain public improvements constructed to serve
the Subject Property as described in Exhibit B, attached hereto and hereby made a part hereof
(hereinafter referred to as the "Improvement Project and
WHEREAS, the Owner wishes for the City to construct the Improvement Project without
notice of hearing or hearing on the Improvement Project, and without notice of hearing or hearing
on the special assessments levied to finance the Improvement Project, and to levy $13,650.00 of the
cost of the Improvement Project against the Subject Property; and
WHEREAS, the City is willing to construct the Improvement Project in accordance with the
request of the Owner and without such notices or hearings, provided the assurances and covenants
hereinafter stated are made by the Owner to ensure that the City will have valid and collectable
1
special assessments as they relate to the Subject Property to finance the costs of the Improvement
Project; and
WHEREAS, were it not for the assurances and covenants hereinafter provided, the City
would not construct the Improvement Project without such notices and hearings and is doing so
solely at the behest, and for the benefit of, the Owner.
NOW, THEREFORE, ON THE BASIS OF THE MUTUAL COVENANTS AND
AGREEMENT HEREINAFTER PROVIDED, IT IS HEREBY AGREED BY AND BETWEEN
THE PARTIES HERETO AS FOLLOWS:
1. The Owner hereby petitions the City for construction of the Improvement Project.
2. The Owner represents and warrants that it is the owner of 100 percent of the Subject
Property, that it has full legal power and authority to encumber the Subject Property as
herein provided, and that as of the date hereof, it has fee simple absolute title in the Subject
Property, which is not subject to any liens, interests or encumbrances, except as listed on the
attached Exhibit C.
3. The Owner requests that $13,650.00 of the cost of the Improvement Project be assessed
against the Subject Property.
4. The Owner waives notice of hearing and hearing pursuant to Minn. Stat. Section 429.031,
on the Improvement Project and notice of hearing and hearing on the special assessments
levied to finance the Improvement Project pursuant to Minn Stat. Section 429.061, and
specifically requests that the Improvement Project be constructed and special assessments
levied against the Subject Property therefor without hearings.
5. The Owner waives the right to appeal the levy of the special assessments in accordance with
this Agreement pursuant to Minn. Stat. Section 429.081, or reapportionment thereof upon
land division pursuant to Min. Stat. Section 429.071, Subd. 3, or otherwise, and further
specifically agrees with respect to such special assessments against the Subject Property or
reapportionment that:
a. Any requirements of Minn Stat., Chapter 429 with which the City does not comply
are hereby waived by the Owner;
b. The increase in fair market value of the Subject Property resulting from construction
of the Improvement Project will be at least equal to the amount specified in
paragraph 3, and that such increase in fair market value is a special benefit to the
Subject Property; and
2
c. Assessment of amount specified in paragraph 3 against the Subject Property is
reasonable, fair and equitable.
6. The City will defer the payment of the special assessment for the Improvement Project,
without interest, until the Subject Property is subdivided or improved as defined below:
a. The Subject Property will be deemed to be subdivided upon final approval by the
City Council of a subdivision or division of land that creates buildable lots or parcels
of land. Subdivision into outlots that are not buildable will not be deemed to be a
subdivision.
b. The Subject Property will be deemed to be improved if the owner of the Subject
Property or the owner's authorized representative applies for and is granted a permit
for the construction of any residential, commercial, agricultural, industrial or other
building or structure that requires a building permit (other than permits to rebuild
existing buildings destroyed by fire or other casualty).
c. The deferment of the special assessment for the Improvement Project will terminate
upon the subdivision or improvement of the Subject Property as defined in
paragraphs a. and b. above. The special assessments may be paid without interest
until the earlier of: 1) 90 days after termination of the deferment; or 2) the issuance
of a certificate of occupancy for an improvement or release of a final plat for a
subdivision. If the special assessment is not paid by such date, interest on the
assessment will accrue at the rate of five percent per year from the termination of the
deferral until December 31 of the year in which the assessment is paid. The
assessment will be due and payable with ad valorem real estate taxes in the year
following the first November 30 occurring after the termination of the deferral of
the assessment.
7. As of the date of this Agreement, the Subject Property qualifies for deferral of special
assessments under Minnesota Statutes, Section 273.111. If payment of special assessments
becomes due under this Agreement while the Subject Property still qualifies for deferral
under Section 273.111, such special assessment shall continue to be deferred as long as it
qualifies for such deferral but shall become payable, together with interest as specified in
paragraph 6c of this Agreement, in accordance with Minnesota Statutes, Section 273.111.
8. The covenants, waivers and agreements contained in this Agreement shall bind the
successors and assigns of the Owner and shall run with the Subject Property and bind all
successors in interest thereof. It is the intent of the parties hereto that this Agreement be in a
form which is recordable among the land records of Dakota County, Minnesota; and they
agree to make any changes in this Agreement that may be necessary to effect the recording
and filing of this Agreement against the title of the Subject Property.
9. The City may abandon the Improvement Project if it is unable to secure agreement of all
affected landowners or necessary rights -of -way for the Improvement Project or determines
3
that proceeding with the Improvement Project is not in the public interest. This Agreement
will be terminated if the City Council has not awarded a contract for the construction of the
Improvement Project by December 31, 2011.
10. If not terminated in accordance with paragraph 9, this Agreement shall terminate upon the
final payment of all special assessments levied against the Subject Property regarding the
Improvement Project, and the City shall thereupon execute and deliver such documents, in
recordable form, as are necessary to extinguish its rights hereunder.
above.
IN WITNESS WHEREOF, the parties have set their hands the day and year first written
STATE OF MINNESOTA
ss.
COUNTY OF DAKOTA
The foregoing instrument was acknowledged before me this day of 2009,
by William Droste and Amy Domeier, the Mayor and Clerk, respectively, of the City of Rosemount,
Minnesota, a municipal corporation under the laws of the State of Minnesota, on behalf of the City.
4
CITY OF ROSEMOUNT
By:
William Droste, Mayor
And by:
Amy Domeier, City Clerk
Notary Public
STATE OF MINNESOTA
SS.
COUNTY OF
NOTARY STAMP OR SEAL
OWNER
Kogl Family Limited Partnership
By
Its General Partner
The foregoing instrument was acknowledged before me this day of
2009 by Jeanne Kogl, the General Partner of Kogl Family Limited Partnership, a
limited partnership organized under the laws of the State of Minnesota, on behalf of the limited
partnership, Grantor.
5
Notary Public
STATE OF MINNESOTA
SS.
COUNTY OF
NOTARY STAMP OR SEAL
JMOR Real Estate Investments, LLC
By
Its Chief Manager
The foregoing instrument was acknowledged before me this day of
2009 by Jill Minea O'Rourke, Chief Manager of JMOR Real Estate Investments,
LLC, a limited liability company organized under the laws of the State of Minnesota, on behalf of
the limited liability company, Grantor.
BVM Real Estate Investments, LLC
By
Its Chief Manager
6
Notary Public
STATE OF MINNESOTA
SS.
COUNTY OF
BVM Real Estate Investments, LLC
By
Its Chief Manager
The foregoing instrument was acknowledged before me this day of
2009 by Bruce V. Minea, the Chief Manager of BVM Real Estate Investments,
LLC, a limited liability company organized under the laws of the State of Minnesota, on behalf of
the limited liability company, Grantor.
NOTARY STAMP OR SEAL
7
Notary Public
Exhibit A
That part of the East Half of the Southwest Quarter (E1 /2 SW 1/4) of Section 22,
Township 115, Range 19, Dakota County, Minnesota, lying northerly of the northerly
right -of -way line of the Chicago, Rock Island and Pacific Railroad, and lying southerly of
the centerline of 135` Street West as now established (also known as County Road No.
38).
8
Exhibit B
Description of the Project
Upgrade of an existing 28' (typical) wide, rural, two -lane gravel roadway (County Road 73 also
known as Akron Avenue) between County State Aid Highway 42 and Bonaire Path, to a 58'
(typical) wide, urban, two -lane paved roadway with center medians and turn lanes, including
stormwater ponding and storm sewer necessary for stormwater runoff conveyance within the
project area.
9
Parcel 5
34- 02200 013 -50
ESCROW AGREEMENT
THIS AGREEMENT entered into this day of 2009, by and
between by Kogl Family Limited Partnership, a limited partnership organized under the laws of the
State of Minnesota; JMOR Real Estate Investments, LLC, a limited liability company organized
under the laws of the State of Minnesota; and BVM Real Estate Investments, LLC, a limited
liability company organized under the laws of the State of Minnesota (collectively "Owner City
of Rosemount, a Minnesota municipal corporation, "City") and KENNEDY GRAVEN,
CHARTERED "Escrow Agent" or "Agent
RECITALS
A. City proposes to improve Akron Avenue/County Road No. 73 by reconstruction of
the roadway, addition of curb and gutter, construction of a trail or sidewalk and associated storm
sewer improvements "City Project 399
B. Owner is the fee owner of certain real property (the "Property"), legally described as
follows:
That part of the East Half of the Southwest Quarter (E1 /2 SW 1/4) of
Section 22, Township 115, Range 19, Dakota County, Minnesota, lying
northerly of the northerly right -of -way line of the Chicago, Rock Island and
Pacific Railroad, and lying southerly of the centerline of 135 Street West as
now established (also known as County Road No. 38).
C. City has determined that it requires certain easements from Owner in order to
construct City Project No. 399 (the "Easements
D. City proposes to finance the construction of City Project No. 399 by using federal
funds and by levying special assessments against benefitted properties, including the
Property.
E. Owner desires the City to proceed with the construction of City Project No. 399 if,
and only if, adequate funding, including federal funding, is available. Owner is
willing to convey the necessary easements for City Project No. 399 and to petition
for construction of City Project No. 417, provided adequate funding is available to
offset the costs of the Project.
AGREEMENT
The parties agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated into
this Agreement by reference.
2. Escrowed Instruments. Escrow Agent acknowledges and agrees that it has received
from Owner (i) an executed and acknowledged original of copy of an instrument conveying the
Easements to City (ii) an executed and acknowledged original of a Petition and Waiver Agreement
for the construction of City Project No. 399, and (iii) an Easement and Trunk Area Charge Credit
Agreement (collectively, the "Instruments Escrow Agent shall hold the Escrowed Instruments in
a secure location until such time, if any, that Escrow Agent receives notice from City as provided in
Section 3 below.
3. Delivery and Recording of Instrument. If City secures all needed easements and
secures sufficient funds for City Project 399, including federal funds, and adopts a resolution
ordering City Project 399, City may provide written notice to Escrow Agent, with a copy to Owner,
directing Escrow Agent to release the Instruments from escrow and deliver the same to City for
execution and recording by the City. Within two business days after receiving such notice, Escrow
Agent shall release the Instruments from escrow and deliver the same to City.
4. Release of Instruments. If City has not directed Escrow Agent to release the
Instruments from escrow on or before December 31, 2011, within two business days after receiving
written demand from Owner, Escrow Agent shall deliver the original Instruments to Owner for
destruction.
5. Notices. Any notice required hereunder shall be given in writing, signed by the
party giving notice, personally delivered or mailed by certified or registered mail, return receipt
requested, to the parties' respective addresses as set forth below:
To Escrow Agent:
To Owner:
Copy to:
To City:
Kennedy Graven, Chartered
ATTN: Corrine A. Heine
200 South Sixth Street, Suite 470
Minneapolis, MN 55402
City of Rosemount
Attn: Andy Brotzler
2875 145 St. W.
Rosemount, MN 55068
Notice shall be deemed delivered (a) in the case of personal delivery, on the date when personally
delivered; or (b) in the case of certified or registered mail, on the date which is one day after
deposited in the United States mail with sufficient postage to effect such delivery. Each party may
change the address to which notice must be given by delivery of written notice to the other parties in
accordance with this Section 6.
6.. Escrow Agent Liability. The sole duties of Escrow Agent shall be those described
herein, and Escrow Agent shall be under no obligation to determine whether the other parties hereto
are complying with any requirements of law or the terms and conditions of any other agreements
among said parties. Escrow Agent may conclusively rely upon and shall be protected in acting on
any notice believed by it to be genuine and to have been signed or presented by the proper party or
parties, consistent with reasonable due diligence on Escrow Agent's part. Escrow Agent shall have
no duty or liability to verify any such notice, and its sole responsibility shall be to act expressly as
set forth in this Escrow Agreement.
Owner and City understand that Agent is legal counsel to the City and each consents to
Agent's serving as Escrow Agent notwithstanding such representation. In the event Agent
determines, in its sole discretion, that it cannot continue to serve as Escrow Agent herein, Agent
shall deposit the Instruments with Old Republic National Title Insurance Company or such other
Escrow Agent acceptable to Owner and City. Owner consents to Agent's continued representation
of City, and City agrees to pay all escrow fees charged by the substitute Escrow Agent.
7. This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.. This Agreement can be amended or modified only by a writing signed by
the parties hereto. This Agreement shall be governed by the laws of the State of Minnesota.
[Signatures on following three pages]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
OWNER:
Kogl Family Limited Partnership
By
Its General Partner
JMOR Real Estate Investments, LLC
By
Its Chief Manager
BVM Real Estate Investments, LLC
By
Its Chief Manager
[Signature page to Escrow Agreement]
ESCROW AGENT:
KENNEDY GRAVEN, CHARTERED
By:
Its: Director
[Signature page to Escrow Agreement]
CITY:
CITY OF ROSEMOUNT
By:
Its Mayor
By:
Its City Clerk
[Signature page to Escrow Agreement]
Parcel 6
34- 58600- 010 -00
PETITION AND WAIVER AGREEMENT
This Agreement made this day of 2009, by and between the City of
Rosemount, a Minnesota municipal corporation ("City"), and Arcon Development, Inc., a
corporation organized under the laws of the State of Minnesota "Owner
WITNESSETH:
WHEREAS, the Owner is the fee owner of certain real property (the "Subject Property
located in the City the legal description of which is set forth on Exhibit A, attached hereto and
hereby made a part hereof; and
WHEREAS, the Owner desires to have certain public improvements constructed to serve
the Subject Property as described in Exhibit B, attached hereto and hereby made a part hereof
(hereinafter referred to as the "Improvement Project and
WHEREAS, the Owner wishes for the City to construct the Improvement Project without
notice of hearing or hearing on the Improvement Project, and without notice of hearing or hearing
on the special assessments levied to finance the Improvement Project, and to levy $37,204.00 of the
cost of the Improvement Project against the Subject Property; and
WHEREAS, the City is willing to construct the Improvement Project in accordance with the
request of the Owner and without such notices or hearings, provided the assurances and covenants
hereinafter stated are made by the Owner to ensure that the City will have valid and collectable
special assessments as they relate to the Subject Property to finance the costs of the Improvement
Project; and
WHEREAS, were it not for the assurances and covenants hereinafter provided, the City
would not construct the Improvement Project without such notices and hearings and is doing so
1
solely at the behest, and for the benefit of, the Owner.
NOW, THEREFORE, ON THE BASIS OF THE MUTUAL COVENANTS AND
AGREEMENT HEREINAFTER PROVIDED, IT IS HEREBY AGREED BY AND BETWEEN
THE PARTIES HERETO AS FOLLOWS:
1. The Owner hereby petitions the City for construction of the Improvement Project.
2. The Owner represents and warrants that it is the owner of 100 percent of the Subject
Property, that it has full legal power and authority to encumber the Subject Property as
herein provided, and that as of the date hereof, it has fee simple absolute title in the Subject
Property, which is not subject to any liens, interests or encumbrances, except as listed on the
attached Exhibit C.
3. The Owner requests that $37,204.00 of the cost of the Improvement Project be assessed
against the Subject Property.
4. The Owner waives notice of hearing and hearing pursuant to Minn. Stat. Section 429.031,
on the Improvement Project and notice of hearing and hearing on the special assessments
levied to finance the Improvement Project pursuant to Minn. Stat. Section 429.061, and
specifically requests that the Improvement Project be constructed and special assessments
levied against the Subject Property therefor without hearings.
5. The Owner waives the right to appeal the levy of the special assessments in accordance with
this Agreement pursuant to Minn. Stat. Section 429.081, or reapportionment thereof upon
land division pursuant to Min. Stat. Section 429.071, Subd. 3, or otherwise, and further
specifically agrees with respect to such special assessments against the Subject Property or
reapportionment that:
a. Any requirements of Minn. Stat., Chapter 429 with which the City does not comply
are hereby waived by the Owner;
b. The increase in fair market value of the Subject Property resulting from construction
of the Improvement Project will be at least equal to the amount specified in
paragraph 3, and that such increase in fair market value is a special benefit to the
Subject Property; and
c. Assessment of amount specified in paragraph 3 against the Subject Property is
reasonable, fair and equitable.
6. The City will defer the payment of the special assessment for the Improvement Project,
without interest, until the Subject Property is subdivided or improved as defined below:
a. The Subject Property will be deemed to be subdivided upon final approval by the
City Council of a subdivision or division of land that creates buildable lots or parcels
of land. Subdivision into outlots that are not buildable will not be deemed to be a
2
subdivision.
b. The Subject Property will be deemed to be improved if the owner of the Subject
Property or the owner's authorized representative applies for and is granted a permit
for the construction of any residential, commercial, agricultural, industrial or other
building or structure that requires a building permit (other than permits to rebuild
existing buildings destroyed by fire or other casualty).
c. The deferment of the special assessment for the Improvement Project will terminate
upon the subdivision or improvement of the Subject Property as defined in
paragraphs a. and b. above. The special assessments may be paid without interest
until the earlier of: 1) 90 days after termination of the deferment; or 2) the issuance
of a certificate of occupancy for an improvement or release of a final plat for a
subdivision. If the special assessment is not paid by such date, interest on the
assessment will accrue at the rate of five percent per year from the termination of the
deferral until December 31 of the year in which the assessment is paid. The
assessment will be due and payable with ad valorem real estate taxes in the year
following the first November 30 occurring after the termination of the deferral of
the assessment.
7. Owner represents and warrants that the Subject Property is not so classified for tax purposes
as to result in deferral of the obligation to pay special assessments; and Owner agrees that it
will take no action to secure such tax status for the Subject Property during the term of this
Agreement.
8. The covenants, waivers and agreements contained in this Agreement shall bind the
successors and assigns of the Owner and shall run with the Subject Property and bind all
successors in interest thereof. It is the intent of the parties hereto that this Agreement be in a
form which is recordable among the land records of Dakota County, Minnesota; and they
agree to make any changes in this Agreement that may be necessary to effect the recording
and filing of this Agreement against the title of the Subject Property.
9. The City may abandon the Improvement Project if it is unable to secure agreement of all
affected landowners or necessary rights -of -way for the Improvement Project or determines
that proceeding with the Improvement Project is not in the public interest. This Agreement
will be terminated if the City Council has not awarded a contract for the construction of the
Improvement Project by December 31, 2011.
10. If not terminated in accordance with paragraph 9, this Agreement shall terminate upon the
final payment of all special assessments levied against the Subject Property regarding the
Improvement Project, and the City shall thereupon execute and deliver such documents, in
recordable form, as are necessary to extinguish its rights hereunder.
3
above.
COUNTY OF
IN WITNESS WHEREOF, the parties have set their hands the day and year first written
STATE OF MINNESOTA
ss.
The foregoing instrument was acknowledged before me this day of 2009,
by William Droste and Amy Domeier, the Mayor and Clerk, respectively, of the City of Rosemount,
Minnesota, a municipal corporation under the laws of the State of Minnesota, on behalf of the City.
STATE OF MINNESOTA
SS.
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2009, by Scott Johnson, the President of Arcon Development, Inc.,
a corporation under the laws of Minnesota by and on behalf of said corporation.
Notary Public
4
CITY OF ROSEMOUNT
By:
William Droste, Mayor
And by:
Amy Domeier, City Clerk
OWNER
ARCON DEVELOPMENT, INC.
By
Scott Johnson
President
Notary Public
Parcel 6
34- 58600- 010 -00
ESCROW AGREEMENT
THIS AGREEMENT entered into this day of 2009, by and
between Arcon Development, Inc., a corporation organized under the laws of the State of
Minnesota, "Owner City of Rosemount, a Minnesota municipal corporation, "City") and
KENNEDY GRAVEN, CHARTERED "Escrow Agent" or "Agent
RECITALS
A. City proposes to improve Akron Avenue/County Road No. 73 by reconstruction of
the roadway, addition of curb and gutter, construction of a trail or sidewalk and associated storm
sewer improvements "City Project 399
B. Owner is the fee owner of certain real property (the "Property"), legally described as
follows:
Outlot A, PRESTWICK PLACE, according to the plat on file and of record in the
office of the County Recorder, Dakota County, Minnesota EXCEPTING
THEREFROM that part which lies within the West Half of the Southwest Quarter of
Section 22, Township 115, Range 19, Dakota County, Minnesota.
C City has determined that it requires certain easements from Owner in order to
construct City Project No. 399 (the "Easements
D. City proposes to finance the construction of City Project No. 399 by using federal
funds and by levying special assessments against benefitted properties, including the
Property.
E. Owner desires the City to proceed with the construction of City Project No. 399 if,
and only if, adequate funding, including federal funding, is available. Owner is
willing to convey the necessary easements for City Project No. 399 and to petition
for construction of City Project No. 417, provided adequate funding is available to
offset the costs of the Project.
AGREEMENT
The parties agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated into
this Agreement by reference.
2. Escrowed Instruments. Escrow Agent acknowledges and agrees that it has received
from Owner (i) an executed and acknowledged original of copy of an instrument conveying the
Easements to City and (ii) an executed and acknowledged original of a Petition and Waiver
Agreement for the construction of City Project No. 399 (collectively, the "Instruments Escrow
Agent shall hold the Escrowed Instruments in a secure location until such time, if any, that Escrow
Agent receives notice from City as provided in Section 3 below.
3. Delivery and Recording of Instrument. If City secures all needed easements and
secures sufficient funds for City Project 399, including federal funds, and adopts a resolution
ordering City Project 399, City may provide written notice to Escrow Agent, with a copy to Owner,
directing Escrow Agent to release the Instruments from escrow and deliver the same to City for
execution and recording by the City. Within two business days after receiving such notice, Escrow
Agent shall release the Instruments from escrow and deliver the same to City.
4. Release of Instruments. If City has not directed Escrow Agent
Instruments from escrow on or before December 31, 2011, within two business days
written demand from Owner, Escrow Agent shall deliver the original Instruments
destruction.
5. Notices. Any notice required hereunder shall be given in writing,
party giving notice, personally delivered or mailed by certified or registered mail,
requested, to the parties' respective addresses as set forth below:
To Escrow Agent:
To Owner:
Copy to:
To City:
Kennedy Graven, Chartered
ATTN: Corrine A. Heine
200 South Sixth Street, Suite 470
Minneapolis, MN 55402
Arcon Development, Inc.
7625 Metro Boulevard, Suite 350
Edinia, MN 55439
City of Rosemount
Attn: Andy Brotzler
2875 145 St. W.
Rosemount, MN 55068
to release the
after receiving
to Owner for
signed by the
return receipt
Notice shall be deemed delivered (a) in the case of personal delivery, on the date when personally
delivered; or (b) in the case of certified or registered mail, on the date which is one day after
deposited in the United States mail with sufficient postage to effect such delivery. Each party may
change the address to which notice must be given by delivery of written notice to the other parties in
accordance with this Section 6.
6.. Escrow Agent Liability. The sole duties of Escrow Agent shall be those described
herein, and Escrow Agent shall be under no obligation to determine whether the other parties hereto
are complying with any requirements of law or the terms and conditions of any other agreements
among said parties. Escrow Agent may conclusively rely upon and shall be protected in acting on
any notice believed by it to be genuine and to have been signed or presented by the proper party or
parties, consistent with reasonable due diligence on Escrow Agent's part. Escrow Agent shall have
no duty or liability to verify any such notice, and its sole responsibility shall be to act expressly as
set forth in this Escrow Agreement.
Owner and City understand that Agent is legal counsel to the City and each consents to
Agent's serving as Escrow Agent notwithstanding such representation. In the event Agent
determines, in its sole discretion, that it cannot continue to serve as Escrow Agent herein, Agent
shall deposit the Instruments with Old Republic National Title Insurance Company or such other
Escrow Agent acceptable to Owner and City. Owner consents to Agent's continued representation
of City, and City agrees to pay all escrow fees charged by the substitute Escrow Agent.
7. This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.. This Agreement can be amended or modified only by a writing signed by
the parties hereto. This Agreement shall be governed by the laws of the State of Minnesota.
[Signatures on following three pages]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
OWNER:
ARCON DEVELOPMENT, INC.
By
Scott Johnson
President
[Signature page to Escrow Agreement]
CITY:
CITY OF ROSEMOUNT
By:
Its: Mayor
By:
Its: City Clerk
[Signature page to Escrow Agreement]
ESCROW AGENT:
KENNEDY GRAVEN, CHARTERED
By:
Its: Director
[Signature page to Escrow Agreement]
Exhibit B
Description of the Project
Upgrade of an existing 28' (typical) wide, rural, two -lane gravel roadway (County Road 73 also
known as Akron Avenue) between County State Aid Highway 42 and Bonaire Path, to a 58'
(typical) wide, urban, two -lane paved roadway with center medians and turn lanes, including
stormwater ponding and storm sewer necessary for stormwater runoff conveyance within the
project area.
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Exhibit A
Outlot A, PRESTWICK PLACE, according to the plat on file and of record in the office
of the County Recorder, Dakota County, Minnesota EXCEPTING THEREFROM that
part which lies within the West Half of the Southwest Quarter of Section 22, Township
115, Range 19, Dakota County, Minnesota.
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Parcel 11A
34- 58600- 090 -00
PETITION AND WAIVER AGREEMENT
This Agreement made this day of 2009, by and between the City of
Rosemount, a Minnesota municipal corporation "City"), and AKRON 42, LLC a limited liability
company organized under the laws of the State of Minnesota "Owner").
WITNESSETH:
WHEREAS, the Owner is the fee owner of certain real property (the "Subject Property
located in the City the legal description of which is set forth on Exhibit A, attached hereto and
hereby made a part hereof; and
WHEREAS, the Owner desires to have certain public improvements constructed to serve
the Subject Property as described in Exhibit B, attached hereto and hereby made a part hereof
(hereinafter referred to as the "Improvement Project and
WHEREAS, the Owner wishes for the City to construct the Improvement Project without
notice of hearing or hearing on the Improvement Project, and without notice of hearing or hearing
on the special assessments levied to finance the Improvement Project, and to levy $19,026.00 of the
cost of the Improvement Project against the Subject Property; and
WHEREAS, the City is willing to construct the Improvement Project in accordance with the
request of the Owner and without such notices or hearings, provided the assurances and covenants
hereinafter stated are made by the Owner to ensure that the City will have valid and collectable
special assessments as they relate to the Subject Property to finance the costs of the Improvement
Project; and
WHEREAS, were it not for the assurances and covenants hereinafter provided, the City
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would not construct the Improvement Project without such notices and hearings and is doing so
solely at the behest, and for the benefit of, the Owner.
NOW, THEREFORE, ON THE BASIS OF THE MUTUAL COVENANTS AND
AGREEMENT HEREINAFTER PROVIDED, IT IS HEREBY AGREED BY AND BETWEEN
THE PARTIES HERETO AS FOLLOWS:
1. The Owner hereby petitions the City for construction of the Improvement Project.
2. The Owner represents and warrants that it is the owner of 100 percent of the Subject
Property, that it has full legal power and authority to encumber the Subject Property as
herein provided, and that as of the date hereof, it has fee simple absolute title in the Subject
Property, which is not subject to any liens, interests or encumbrances, except as listed on the
attached Exhibit C.
3. The Owner requests that $19,026.00 of the cost of the Improvement Project be assessed
against the Subject Property.
4. The Owner waives notice of hearing and hearing pursuant to Minn. Stat. Section 429.031,
on the Improvement Project and notice of hearing and hearing on the special assessments
levied to finance the Improvement Project pursuant to Minn. Stat. Section 429.061, and
specifically requests that the Improvement Project be constructed and special assessments
levied against the Subject Property therefor without hearings.
5. The Owner waives the right to appeal the levy of the special assessments in accordance with
this Agreement pursuant to Minn. Stat. Section 429.081, or reapportionment thereof upon
land division pursuant to Min. Stat. Section 429.071, Subd. 3, or otherwise, and further
specifically agrees with respect to such special assessments against the Subject Property or
reapportionment that:
a. Any requirements of Minn. Stat., Chapter 429 with which the City does not comply
are hereby waived by the Owner;
b. The increase in fair market value of the Subject Property resulting from construction
of the Improvement Project will be at least equal to the amount specified in
paragraph 3, and that such increase in fair market value is a special benefit to the
Subject Property; and
c. Assessment of amount specified in paragraph 3 against the Subject Property is
reasonable, fair and equitable.
6. The City will defer the payment of the special assessment for the Improvement Project,
without interest, until the Subject Property is subdivided or improved as defined below:
a. The Subject Property will be deemed to be subdivided upon final approval by the
City Council of a subdivision or division of land that creates buildable lots or parcels
of land. Subdivision into outlots that are not buildable will not be deemed to be a
subdivision.
b. The Subject Property will be deemed to be improved if the owner of the Subject
Property or the owner's authorized representative applies for and is granted a permit
for the construction of any residential, commercial, agricultural, industrial or other
building or structure that requires a building permit (other than permits to rebuild
existing buildings destroyed by fire or other casualty).
c. The deferment of the special assessment for the Improvement Project will terminate
upon the subdivision or improvement of the Subject Property as defined in
paragraphs a. and b. above. The special assessments may be paid without interest
until the earlier of: 1) 90 days after termination of the deferment; or 2) the issuance
of a certificate of occupancy for an improvement or release of a final plat for a
subdivision. If the special assessment is not paid by such date, interest on the
assessment will accrue at the rate of five percent per year from the termination of the
deferral until December 31 of the year in which the assessment is paid. The
assessment will be due and payable with ad valorem real estate taxes in the year
following the first November 30 occurring after the termination of the deferral of
the assessment.
7. Owner represents and warrants that the Subject Property is not so classified for tax purposes
as to result in deferral of the obligation to pay special assessments; and Owner agrees that it
will take no action to secure such tax status for the Subject Property during the term of this
Agreement.
8. The covenants, waivers and agreements contained in this Agreement shall bind the
successors and assigns of the Owner and shall run with the Subject Property and bind all
successors in interest thereof. It is the intent of the parties hereto that this Agreement be in a
form which is recordable among the land records of Dakota County, Minnesota; and they
agree to make any changes in this Agreement that may be necessary to effect the recording
and filing of this Agreement against the title of the Subject Property.
9. The City may abandon the Improvement Project if it is unable to secure agreement of all
affected landowners or necessary rights -of -way for the Improvement Project or determines
that proceeding with the Improvement Project is not in the public interest. This Agreement
will be terminated if the City Council has not awarded a contract for the construction of the
Improvement Project by December 31, 2011.
10. If not terminated in accordance with paragraph 9, this Agreement shall terminate upon the
final payment of all special assessments levied against the Subject Property regarding the
Improvement Project, and the City shall thereupon execute and deliver such documents, in
recordable form, as are necessary to extinguish its rights hereunder.
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above.
IN WITNESS WHEREOF, the parties have set their hands the day and year first written
STATE OF MINNESOTA
ss.
COUNTY OF DAKOTA
4
CITY OF ROSEMOUNT
By:
William Droste, Mayor
And by:
Amy Domeier, City Clerk
OWNER
AKRON 42, LLC
By
Its
The foregoing instrument was acknowledged before me this day of 2009,
by William Droste and Amy Domeier, the Mayor and Clerk, respectively, of the City of Rosemount,
Minnesota, a municipal corporation under the laws of the State of Minnesota, on behalf of the City.
Notary Public
STATE OF MINNESOTA
SS.
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2009, by the
of AKRON 42, LLC a limited liability company under the laws of Minnesota by and on behalf of
said limited liability company.
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Notary Public
Exhibit A
Outlot I, PRESTWICK PLACE, according to the plat on file and of record in the office of the
County Recorder, Dakota County, Minnesota.
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Exhibit B
Description of the Project
Upgrade of an existing 28' (typical) wide, rural, two -lane gravel roadway (County Road 73 also
known as Akron Avenue) between County State Aid Highway 42 and Bonaire Path, to a 58'
(typical) wide, urban, two -lane paved roadway with center medians and turn lanes, including
stormwater ponding and storm sewer necessary for stormwater runoff conveyance within the
project area.
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Parcel 11A
34- 58600- 090 -00
ESCROW AGREEMENT
THIS AGREEMENT entered into this day of 2009, by and
between AKRON 42, LLC a limited liability company organized under the laws of the State of
Minnesota "Owner City of Rosemount, a Minnesota municipal corporation, "City") and
KENNEDY GRAVEN, CHARTERED ("Escrow Agent" or "Agent
RECITALS
A. City proposes to improve Akron Avenue/County Road No. 73 by reconstruction of
the roadway, addition of curb and gutter, construction of a trail or sidewalk and associated storm
sewer improvements "City Project 399
B. Owner is the fee owner of certain real property (the "Property"), legally described as
follows:
Outlot I, PRESTWICK PLACE, according to the plat on file and of record in
the office of the County Recorder, Dakota County, Minnesota.
C. City has determined that it requires certain easements from Owner in order to
construct City Project No. 399 (the "Easements
D. City proposes to finance the construction of City Project No. 399 by using federal
funds and by levying special assessments against benefitted properties, including the
Property.
E. Owner desires the City to proceed with the construction of City Project No. 399 if,
and only if, adequate funding, including federal funding, is available. Owner is
willing to convey the necessary easements for City Project No. 399 and to petition
for construction of City Project No. 417, provided adequate funding is available to
offset the costs of the Project.
AGREEMENT
The parties agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated into
this Agreement by reference.
2. Escrowed Instruments. Escrow Agent acknowledges and agrees that it has received
from Owner (i) an executed and acknowledged original of copy of an instrument conveying the
Easements to City and (ii) an executed and acknowledged original of a Petition and Waiver
Agreement for the construction of City Project No. 399 (collectively, the "Instruments Escrow
Agent shall hold the Escrowed Instruments in a secure location until such time, if any, that Escrow
Agent receives notice from City as provided in Section 3 below.
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3. Delivery and Recording of Instrument. If City secures all needed easements and
secures sufficient funds for City Project 399, including federal funds, and adopts a resolution
ordering City Project 399, City may provide written notice to Escrow Agent, with a copy to Owner,
directing Escrow Agent to release the Instruments from escrow and deliver the same to City for
execution and recording by the City. Within two business days after receiving such notice, Escrow
Agent shall release the Instruments from escrow and deliver the same to City.
4. Release of Instruments. If City has not directed Escrow Agent to release the
Instruments from escrow on or before December 31, 2011, within two business days after receiving
written demand from Owner, Escrow Agent shall deliver the original Instruments to Owner for
destruction.
5. Notices. Any notice required hereunder shall be given in writing, signed by the
party giving notice, personally delivered or mailed by certified or registered mail, return receipt
requested, to the parties' respective addresses as set forth below:
To Escrow Agent:
To Owner:
Copy to:
Kennedy Graven, Chartered
ATTN: Corrine A. Heine
200 South Sixth Street, Suite 470
Minneapolis, MN 55402
AKRON 42, LLC
7625 Metro Blvd., Suite 350
Edina, MN 55439
To City: City of Rosemount
Attn: Andy Brotzler
2875 145 St. W.
Rosemount, MN 55068
Notice shall be deemed delivered (a) in the case of personal delivery, on the date when personally
delivered; or (b) in the case of certified or registered mail, on the date which is one day after
deposited in the United States mail with sufficient postage to effect such delivery. Each party may
change the address to which notice must be given by delivery of written notice to the other parties in
accordance with this Section 6.
6.. Escrow Agent Liability. The sole duties of Escrow Agent shall be those described
herein, and Escrow Agent shall be under no obligation to determine whether the other parties hereto
are complying with any requirements of law or the terms and conditions of any other agreements
among said parties. Escrow Agent may conclusively rely upon and shall be protected in acting on
any notice believed by it to be genuine and to have been signed or presented by the proper party or
parties, consistent with reasonable due diligence on Escrow Agent's part. Escrow Agent shall have
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no duty or liability to verify any such notice, and its sole responsibility shall be to act expressly as
set forth in this Escrow Agreement.
Owner and City understand that Agent is legal counsel to the City and each consents to
Agent's serving as Escrow Agent notwithstanding such representation. In the event Agent
determines, in its sole discretion, that it cannot continue to serve as Escrow Agent herein, Agent
shall deposit the Instruments with Old Republic National Title Insurance Company or such other
Escrow Agent acceptable to Owner and City. Owner consents to Agent's continued representation
of City, and City agrees to pay all escrow fees charged by the substitute Escrow Agent.
7. This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.. This Agreement can be amended or modified only by a writing signed by
the parties hereto. This Agreement shall be governed by the laws of the State of Minnesota.
[Signatures on following three pages]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
OWNER:
AKRON 42, LLC
By
Its
[Signature page to Escrow Agreement]
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CITY:
CITY OF ROSEMOUNT
By:
Its Mayor
By:
Its City Clerk
[Signature page to Escrow Agreement]
ESCROW AGENT:
KENNEDY GRAVEN, CHARTERED
By:
Its: Director
[Signature page to Escrow Agreement]