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HomeMy WebLinkAbout4. Rosemount Professional Building : Consideration of Development Agreement � ♦ DEVELOPMENT AGBEIIIdENT . THIS AGREEMENT, dated this day of , 1994 by and between the Rosemount Port Authority (the "Authority"), a public body corporate and politic, and Dr. Kurt Walter-Hansen and Dr. Patricia Ann Walter (collectively, the "Developer"): RECITALS WHER.EAS, the Authority owns certain property (the "Property") within the City of Rosemount (the "City"), a deseription of which is attached as Exhibit A and WHEREAS, the Authority desires to cause the Property to be developed in a manner consistent with the City's downtown business community; and WHEREAS, the Developer has submitted a proposal and specifications for construction of a combination veterinary clinic and office building (the "Development") to be constructed on the Property, a description of which is attached as Exhibit B; and WHEREAS, the Property is within the Rosemount Redevelopment Project (the "Project"and the Rosetnount Redevelopment Project Tax Increment Financing District (the "TIF District"), which TIF District was created by the City in May, 1979 and is now administered by the Authority; NOW, THEREF08E, in consideration of the foregoing and of the mutual covenants and obligations set forth herein, the parties agree as follows: 1. Convevance of Property. (a) The Authority will convey the Property to the Developer by quit claim deed in substantially the form attached hereto as Exhibit C (the "Deed"), for the sum of $1.00, conditioned on satisfaction of the following conditions: (i) Developer has submitted written evidence in a form satisfactory to the Authority that the Developer has adequate mortgage or other financing for the Development; (u) and construction plans for the Development have been approved by the Authority and the City; and (iii) the Developer has approved title to the Property in aecordance with paragraph (b) of this Section. (b) As soon as practicable after the date of this Agreement, the Authority shall obtain and furnish to the Developer a registered property abstract for the Property. The Developer shall have ten (10) days from the date of its receipt of such commitment to review the state af title to the Property and to provide the Authority with a list of written objections to such title. Upon receipt of the Developer's list of written objeetions, the Authority shall proceed in good faith and with aIl due diligence to attempt to cure the objections made by the Developer. Not earlier than eleven days following the date the Developer shall have received an updated abstract for the Property from the Authority or, in the event the Developer shall have provided the Authority with a list of written objections, within ten (10) days after the date that all such objections have been cured to the reasonable satisfaction of the Developer, the Authority and Developer shall proceed with the canveyance of the Property pursuant to this Section. In the event that the Authority has failed to cure objections within sixty (60) days after its receipt of the Developer's list of such objections, either the Developer or the Authority may by the giving of written notice to the ather, terminate this Agreement, upon the receipt of SJH75251 R8230-Z 1 � which this Agreement shall be null and void and neither party shall have any liability hereunder. The Authority shall have no obligation to take any action to clear defects in the title to the Property, other than the good faith efforts described above. (c) The Authority shall take no actions to encumber title to the Property between the date of this Agreement and the time which the Deed is delivered to the Developer. (d) At closing, the Authority shall deliver the Deed and possession of the Property to the Developer. The Developer shall pay all recording fees relating to the filing of the Deed; charges relating to the filing of any instruments required to make title marketable; title insurance premiums, if any; and title company closing fee, if any. (e) Closing will occur within 30 days after satisfaction of the conditions specified in this Section, but no later than November 1, 1994. 2. Construction of Development. The Developer will be required to construct the Development substantially in accordance with the specifications set forth in Exhibit B, as those specifications may be modified by construction plans approved hereafter by the Authority and City. At a minimum, the Development shall have a face-brick exterior and a gross floor area of at least 8,000 square feet. Subject to Unavoidable Delays as defined hereinafter, construction must begin by no later than January 1, 1995 and be substantially completed (including the building, parking area and landscaping} by August 1, 1995. Promptly after substantial completion of the Development, the Authority will provide the Developer a written certificate so certifying (the"Certificate of Completion"), whieh will be in recordable form. The Development will be deemed substantially complete when the Developer has received a certificate of occupancy from the responsible inspecting authority and the Authority and City have reasons.bly determined that the parking, landscaping, site improvements and pedestrian trail under Section 3(b) are complete. For the purposes of this Agreement, the term"Unavoidable Delays" means delays beyond the reasonable control of the Developer as a result thereof which are the direct result of strikes, other labor troubles, prolonged adverse weather or acts of God, fire or other casualty to the Development, litigation commenced by third parties which, by injunction or other similar judicial action, directly results in delays, or acts of any federal, state or local governmental unit (other than the Authority in exercising its rights under this Agreement) which clirectly result in delays. 3. Other Developer Responsibilities. The Developer shall also: (a) undertake grading of the Property in a way as to be compatible with the topography and elevations of the City's Erickson Community Square Park, in accordance with grading plans approved by the City Engineer and a grading permit issued by the City. (b) construct a pedestrian trail or sidewalk on City property between the northernmost parking lot on the Property and the Erickson Community Square Park, to be completed by August 1, 1995, subject to Unavoidable Delays. The trail will be constructed according to specifications provided by the City. The parties understand and acknowledge that the total cost of the trail will be less than�25,000. In eJB75251 R8230-2 2 a letting contracts for construction of the trail, the Developer will obtain at least at least two quotations from contractors and will provide evidence of the quotations to the City, which will keep such quotations on file for at least one year thereafter, all in accordance with Minnesota Statutes, Section 471.345, Subd. 4. (c) convey to the City a perpetual non-exclusive easement that will allow visitors to the Erickson Community Square Park to use parking on the Property during any hours other than 8:00 a.m. through 6:00 p.m. , Monday through Friday. The rune spaces on the west side of the building may be reserved for the clinic use only. The easement will also include a right of public access at all times to the park and adjacent trail through and across the parking area. of the Property. The Developer will convey the easement to the City upon conveyance of the Property by the Authority to the Developer. The easement shall be substantially in the form attached hereto as Exhibit D. (d) cause all eleetrical utility lines on the south side of the Property to be buried from the pole to the east property line. (e) develop the Property and construct the Development in accordance with all City codes, ordinances and rules, including site plan approval required by the City of Rosemount Planning Commission. (f) pay all costs associated with the Development, including but not limited to building permit fees, water, sewer, storm sewer, plan review and any other fees, subject to potential reimbursement from tax increment in accordance with Seetions 4 and 5 hereof. (g) construct a sidewalk on the Property along State Trunk Highway 3 from the southernmost boundary line of the Property to the entrance drive, in accordance with specifications provided by the City. 4. Tax Increment Assistance. In order to make the Development economically feasible, the Authority will reimburse the Developer (in the manner set forth in Section 5) for the following site improvement costs (the "Site Improvements"): SAC and WAC fees and related permits $ 26,000 Parking lot and driveway 28,400 Curb for parking lot and driveway 12,800 Exeavation 19,500 Landscaping 15,000 Sidewalk 6,500 Trail, including sitework 14,000 Power line undergrounding 5,500 On site sewer, water and g�as 5,900 Lighting 7,200 Blaektop stri�ing 1,800 Conerete blocks and footing to ground 19,000 Survey, On-site storm sewer 6,500 Arehitect fee allocated to above items 6,900 TOTAL $175,000 8J875251 Rszso-z 3 The amounts identified may vary among categories, but if the total above-referenced costs exceed $175,000, such excess costs shall be the responsibility of the Developer. The Authority shall have no obligation to the Developer or to any third party with respect to any defects in the construction of improvements financed or reimbursed by the Authority as Site Improvements. The parties understand and acknowledge that the Developer may incur additional site improvement costs beyond those identified above, and that the Developer is not reimbursed for interest on the above Site Improvement costs under Section 5 hereof. 5. Tax Increment Payments. The Authority will reimburse the Developer for Site Improvement costs paid by the Developer pursuant to Section 4 in the total amount of$175,000 in accordance with the following terms and conditions: (a) The Site Improvement costs will be paid by the Authority to the Developer in semi-annual installments, withaut interest thereon, payable on each August 1 and February 1 ("Payment Dates") commeneing August 1, 1996 and concluding no later than February 1, 2001, whieh payments will be made from Available Tax Increment as defined herein and from no other source. (b) The term "Available Tax Increment" meaus 90 percent of the tax increments attributable the Property that are paid to the Authority during the six months preceding any Payment Date, all pursuant to Minnesota Statutes, Section 462.585 (1978) or, to the extent applicable, Sections 469.174 to 469.179. (c) The Authority's obligation to pay the Site Improvement costs shall terminate on the earlier of the Payment Date on whieh the Developer has been fully reimbursed for the amount of the Site Improvement costs or February 1, 2001, whichever date occurs first. The Authority shall have no obligation to pay any portion of the Site Improvement costs that remains unpaid after February 1, 2001. The Authority may prepay the Site Improvement costs at any time. (d) The Authority shall not be obligated to make any payment under this Seetion if: (i) the Authority has not issued the Certificate of Completion for the Development; (ii) there is an Event of Default on the Developer's part under this Agreement that has not been cured as of the Payment Date; or (iii) the Developer has failed to comply with the payment procedures described in paragraph (e) herein. (e) At least 30 days before the first Payment Date (August 1, 1996), the Developer must submit to the Authority a payment request certificate signed by its duly authorized representative stating that the Developer has paid the Site Improvement costs in at least the amount of$175,000 and that no Event of Default has occurred and is continuing under this Agreement. The first payment request certificate must be aceompanied by a certificate of a project engineer or other project supervisor showing in adequate detail in a form reasouably aceeptable to the Authority that the Site Improvement costs specified in Section 4 have been incurred and paid by the Developer. (f) The Authority makes no warranties or representations as to the amount or method of calculation of Available Tax Increment, and specifically does not warrant or represent that Available Tax Increment will be sufficient to pay the Site Improvement Costs in full during the term specified in this Section. The Authority will cooperate in any efforts by the Developer to maximize the calculation of Available Tax Increment by Dakata County. 8JB75251 gsaso-a 4 6. Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term"Event of Default" shall mean, whenever it is used in this Agreement (unless the context otherwise provides), any failure by any party to observe or perform any other covenant, condition, obligation or agreement on its part to be observed or performed hereunder. 7. Remedies on Default. Whenever any Event of Default referred to in Section 6 of this Agreement occurs, the non-defaulting party may exercise its rights under this Seetion 7 after providing 90 days written notice to the defaulting party of the Event of Default, but only if the Event of Default has not been cured within said thirty days or, if the Event of Default is by its nature incurable within thirty days, the defaulting party does not provide assurances reasonably satisfactory to the non-defaulting party that the Event of Default will be cured and will be cured as soon as reasonably possible: (a) Suspend its performance under the Agreement until it receives assurances that the defaulting party will cure its default and continue its performance under the Agreement. (b) Cancel and rescind or terminate the Agreement. (c) Upon a default by the Developer, the Authority may terminate the payments under Section 5. (d) Take whatever action, including legal, equitable or administrative action, which may appear necessary or desirable to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement, or covenant under this Agreement. 8. Revesting Title in Authoritv Upon Happenin� of Event Subsequent to Convevance to Developer. In the event that subsequent to conveyance of the Property or any part thereof to the Developer and prior to receipt by the Developer of the Gertificate of Completion for the Development, the Developer fails to comply with any of its covenants under this Agreement and fails to cure any such noncompliance or breach within 90 days after written demand from the Authority to the Developer to do so, then the Authority shall have the right to re- enter and take possession of the Property and to terminate (and revest in the Authority) the estate conveyed by the Deed to the Developer, it being the intent of this provision, together with other provisions of the Agreement, that the conveyance of the Property to the Developer shall be made upon, and that the Deed shall contain a condition subsequent to the effeet that in the event of any default on the part of the Developer and failure on the part of the Developer to remedy, end, or abrogate such default within the periad aud in the manner stated in such subdivisions, the Authority at its option may deelare a termination in f�vor of the Authority of the title, and of all the rights and interests in and to the Property conveyed to the Developer, and that such title and all rights and interests of the Developer, and any assigns or successors in interest to and in the Property, shall revert to the Authority, but only if the Event of Default has not been cured within the time periods provided above. Notwithstanding anything to the contrary contained in this Section 8 of this Agreement, the Authority shall have no right to reenter or retake title to and possession of the Property after the Certificate of Completion has been issued. SJH75251 xszao-a 5 9. Park Dedication. The parties agree and understand that the City accepts, as satisfaction of any required dedication of land for park purposes in connection with the Property under City ordinances or policies, the Developer's obligation to construct a pedestrian trail under Section 3(b) and to pave the parking Iot that will be subject to an easement conveyed to the City under Section 3(c). 10. No Additional Waiver Implied bv One Waiver. In the event any covenant contained in this Agreement should be breached by one party and subsequently waived by another party, such waiver shall be limited to the particular breach so wived and shall not be deemed to waive any other concurrent, previous or subsequent breach. 11. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. 12. Notices. Notice or demand or other communication between or among the parties shall be sufficiently given if sent by mail, postage PrePaid� return receipt requested or delivered personally: (a) As to the Authority: City of Rosemount P.O. Box 510 Rosemount, MN 5506$-0510 Attn: Executive Director (b) As to the Developer: 12101 Dodd Boulevard ftosemount, Minnesota 13. No Mer�er with Deed. None of the provisions of this Agreement are intended to or shall be merged by reason of any deed transferring any interest in the Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. 14. Counterparts. This Agreement may be executed simultaneously in any number of counterparts, all of which shall constitute one and the same instrument. 15. Recording. The Developer shall record this Agreement and any amendments thereto with the Dakota County Recorder and shall pay all costs for recording. 16. Future Assistance. The Authority agrees that, if for any reason the duration of the TIF District is extended and tax increments are collected from the Property after April 1, 2001, the Authority will, at the Developer's request, negotiate in good faith with the Developer regarding extension of the assistance provided hereunder, including without limitation: reimbursement of Site Improvement Costs, if any, remaini.ng unpaid after the final Payment Date under 8J875251 R8230-2 s Section 5 hereof; reimbursement of interest accrued on such Site Improvement Costs based upon a mutually agreed rate of interest and accrual date; and reimbursement of additional costs related to the Development other than those identified in Section 4 hereof. In determining whether to provide such additional assistanee, the Authority may consider whether such assistance is reasonably necessaxy to make continued operation of the Development financially feasible and any other factors deemed relevant by the Authority. Nothing herein shall be construed to limit the exercise by the Authority of its legislative discretion regarding provision of such additional assistance. SJH75251 P8230-2 ? IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed in its name and behalf and the Developer has caused this Agreement to be duly executed as of the day and year first above written. DEVELOPER ROSEMOUNT PORT AUTHORITY By: Dr. Kurt Walter-Hansen Chairperson By: Dr. Patricia Ann Walter Executive Director STATE OF MINNESOTA ) COUNTY OF The foregoing instrument was acknowledged before me this day of , 1994, by Kurt Walter-Hansen and Patricia Ann Walter. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) On this day of , 1994, before me, a notary publie within and for Dakota County, personally appeared Kevin Carroll and Thomas D. Burt to me personally known who by me duly sworn, did say that they are the Chairperson and E�cecutive Director of the Rosemount Port Authority, (the "Authority") named in the foregoing instrument; that the seal affixed to said instrument is the seal of said Authority; that said instrument was signed and sealed on behalf of said Authority pursuant to a resolution of its governing body; and said Kevin Carroll and Thomas D. Burt acknowledged said instrument to be the free act and deed of said Authority. THIS INSTRUMENT WAS DRAFTED BY: Notary Public Holmes & Graven, Chartered 470 Pillsbury Center Minneapolis, MN 55402 (612) 337-93Q0 SJ875251 R8230-2 $ EXHIBIT A DESCItIPTION OF PROPEBTY � saaasasi xszao-a A-1 F.XHIBIT B DESCBIPTION OF DEVELOPMII�TT See the site plan for the Property approved by the Rosemount Planning Commission on August 16, 1994, on file in City Hall. � 8JH75251 R8230-2 B-1 EXHIBIT C QUIT CLAIM DEED THIS INDENTUftE between the R.osemount Port Authority, a public body corporate and politic (the "Grantor"), and Dr. Kurt Walter-Hansen and Dr. Patricia Ann Walter as joint tenants and not as tenants in common (the "Grantee"). WITNESSETH, that Grantor, in consideration of the sum of one dollar ($1) and other good and valuable consideration the receipt whereof is hereby acknowledged, does hereby grant, bargain, quitclaim and convey to the Grantee, its successors and assigns forever, all the tract or parcel of land lying and being in the County of Dakota and State of Minnesota described as follows, to-wit (such tract or parcel of land is hereinafter referred to as the "Property"): To have and to hold the same, together with all the hereditaments and appurtenances thereunto belonging in anyway appertaining, to the said Grantee, its successors and assigns, forever, Provided: SECTION 1. It is understood and agreed that this Deed is subject to the covenants, conditions, restrictions and provisions of an agreement entered into between the Grantor and Grantee on the day of , 1994, identified as "Development Agreement" {hereafter referred to as the "Agreement") and that the Grantee shall not convey this Property, or any part thereof, except as permitted by the Agreement until a certificate of completion releasing the Grantee from certain obligations of said Agreement as to this Property or such part thereof then to be conveyed, has been placed of record. This provision, however, shall in no way prevent the Grantee from mortgaging this Property in order to obtain funds for the purchase of the Property hereby conveyed or for erecting improvements thereon in conformity with the Agreement, any applicable development program and applicable provisions of the zoning ordinance of the City of Rosemount, Minnesota, or for the refinancing of the same, It is specifically agreed that the Grantee shall promptly begin and diligently prosecute to completion the development of the Property through the construction of the improvements thereon, as provided in the Agreement. Promptly after completion of the improvements in accordanee with the provisions of the Agreement, the Grantor will furnish the Grantee with an appropriate instrument so certifying. Such certificat3on by the Grantor shall be (and it shall be so provided in the certification itself) a conclusive determination af satisfaetion and termination of the agreements and cavenants of the Agreement and of this Deed with respect to the obligation of the Grantee, and its successors and assigns, to construct the improvements and the dates for the beginning and completion thereof. Such certification and sueh determination shall not constitute evidence of compliance with or satisfaetion of any obligation of the Grantee to any holder of a mortgage, or any insurer of a mortga.ge, securing money loaned to 8JB75251 RS230-2 �i�l finance the purchase of the Property hereby conveyed or the improvements, or any part thereof. All certifications provided for herein shall be in such form as will enable them to be recorded with the County 8ecorder, or Registrar of Titles, Dakota County, Minnesota. If the Grantor shall refuse or fail to provide any such certification in accordance with the provisions of the Agreement and this Deed, the Grantor shall, within thirty (30) days after written request by the Grantee, provide the Grantee with a written statement indicating in adequate detail in what respects the Grantee has failed to complete the improvements in accordance with the provisions of the Agreement or is otherwise in default, and what measures or acts it will be necessary, in the opinion of the Grantor, for the Grantee to take or perform in order to obtain such certification. SECTION 2. In the event the Grantee herein shall, prior to the recording of the certificate of completion hereinabove referred to, fail to comply with any of its covenants under the Agreement and fail to cure any such noncompliance or breach within thirty (30) days after written demand from the Grantor to the Grantee to do so, then the Grantor shall have the right to re-enter and take possession of the Property and to terminate and revest in the Grantor the estate conveyed by this Deed to the Grantee, its assigns or successors in interest, but only if the event of default has not been cured within the time periods provided above. SECTION 3. This Deed is also given subject to: (a) Covenants, conditions and restrietions contained in the Kedevelopment Plan for the Rosemount Redevelopment Projeet, as amended as of the date of the Agreement. (b) Provision of the ordinances, building and zoninglaws of the City of Rosemount, state and federal laws and regulations in so far as they affect this real estate. Grantor certifies that it does not know of any wells on the Property. SJH75251 1i8230-2 C�2 IN WITNESS WHEREOF, the Grantor has caused this Deed to be duly executed in its behalf by its Chairperson and Executive Direetor and has caused its corporate seal to be hereunto affixed this day of , 1994. R.OSIIVlOUNT PORT AUTHORITY R�� — � Its Chairperson R� _ Its Executive Director STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) On this day of , 1994, before me, a notary public within and for Dakota County, personally appeared Keviu Carroll and Thomas D. Burt to me personally known who by me duly sworn, did say that they are the Chairperson and Executive Director of the Rosemount Port Authority, (the "Authority") named in the foregoing instrument; that the seal affixed to said instrument is the seal of said Authority; that said instrument was signed and sealed on behalf of said Authority pursuant to a resolution of its governing body; and said Kevin Carroll and Thomas D. Burt acknowledged said instrument to be the free act and deed of said Authority. Notary Public This instrument was drafted by: Holmes & Graven, Chartered 470 Pillsbury Center Niinneapolis, Minnesota 55402 8J875251 na23o-z C-3 EXHIBIT D EASE�dF1vT THIS INDENTURE is made this day of , 1994 by and between Dr. Kurt Walter-Hansen and Dr. Patricia Ann Walter as joint tenants (Grantor) and CITY OF ROSEMOUNT, a Minnesota municipal corporation (Gra.ntee). Recitals The Grantor is the owner of certain real property (the "Property") in the City of Rosemount, County of Dakota, State of Minnesota, described as set forth in Exhibit A hereto. Grantee desires to acquire, and Grantor desires to convey to Grantee, a perpetual easement for public parking and access purposes over, under and aerass a portion of the Property, subject to all the terms and conditions of this Indenture. Easement A. In consideration of one ($1.00) dollar, and other good and valuable consideration, the receipt and sufficiency of which Grantor hereby aeknowledges, the Grantor hereby grants and conveys to Grantee for the benefit of the public a perpetual, nonexelusive easement over and across that part of the Property described as set forth in Exhibit B (the "Easement Property"), for the purposes set forth in paragraph B hereof. B. The Easement Property may be used by Grantee and the public generally: (1) for public parki.ng by visitors to the Eriekson Community Square Park adjacent to the Property during any hours other than 8:00 a.m. through 6:00 p.m., Monday through Friday; and (2) at all times, for pedestrian and bicycle aceess to the public trail and Erickson Community Square Park adjacent to the Property. [Note: this section may need better descriptions of the property to be accessed.] C. Grantee may, at its own cost, install and maintain reasonable signage on the Easement Property describing the rights of parking and aecess granted herein. D. Grantar shall, at its own cast, maintain the Easement Property for use as a parking lot, ineluding without limita#ion maintenance of paved surfaces and parking space striping. E. This easement shall run with the land and shall bind and inure to the benefit of Grantee, its successors and assigns. S.TB75251 xaz3o-z D-1 IN WITNESS WHEREOF, Grantor has caused this instrument to be executed on or as of the day and year first above written. GRANTOR Dr. Kurt Walter-Hansen Dr. Patricia Ann Walter STATE OF MINNESOTA ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 1994, by Dr. Kurt Walter-Hansen and Dr. Patricia Ann Walter. Notary Public This document drafted by: HOLMES & GRAVEN, CHARTERED 470 Pillsbury Center Minneapolis, MN 55402 (612) 337-9300 SJH75251 xsz3o-z D-2 EXHIBIT A TO EAS�IENT DESCRIPTION OF PROPERTY SJH75251 nsz3o-z A-1 EXHIBIT B TO EASEMENT DESCRIPTION OF EASIII�iT PBOPERTY eJBT5251 R8230-2 B�1