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HomeMy WebLinkAbout9.a. McMenomy Woods Purchase Agreement EXECUTIVE SUMMARY City Council Regular Meeting: September 6, 2022 AGENDA SECTION: AGENDA ITEM: McMenomy Woods Purchase Agreement New Business AGENDA NO. 9.a. PREPARED BY: Dan Schultz, Parks & Recreation Director ATTACHMENTS: Location Map, Parks Master Plan Map, Resolution and Draft Purchase APPROVED BY: LJM Agreement RECOMMENDED ACTION: Motion to adopt a resolution that the City Council enter into a Purchase Agreement, in a format approved by the City Attorney, to Purchase the Fee Title to the McMenomy Property BACKGROUND The City’s Parks Master Plan identifies the McMenomy Woods property (future conservation area C-1) as a potential location for a future City Park. The vision is that the property would function as a passive park with several walking trails similar Carroll’s Woods. The possibility has been discussed since the idea was first introduced in the City of Rosemount 1991 Parks Master Plan. The attached location map shows the McMenomy Woods parcels outlined in yellow and the Vermillion Greenway Trail is a green line on the map. Dakota County has an agreement to purchase the land between the McMenomy properties outlined in yellow. The northern portion of the McMenomy property could be a future city park divided into the Vermillion Highlands Greenway Corridor and natural area since the County funding would have two different funding sources. The southern area would be divided into a parking area, greenway corridor and natural area. Staff from the City of Rosemount and Dakota County have been working with the McMenomy family for several years on a purchase and preservation plan for the McMenomy Woods. In 2017, the McMenomy family submitted a land protection application to Dakota County. Recently, the County identified funding sources to purchase a conservation easement to preserve and protect the properties natural resources. They have also secured funding to purchase a greenway trail corridor on the property. With the County purchasing conservation easement and greenway easement on the property, the fee title land purchase can happen a reduced rate. Dakota County is purchasing the conservation easement on the property for $2,715,322 and the greenway easement is being purchased for $246,848. The fee title value is $352,980 for purchasing the land with easements in place. Staff is recommending the City use the Park Improvement account funds to pay for the purchase of the fee title. RECOMMENDATION Staff recommends the City Council approve a resolution to enter into a Purchase Agreement, in a format approved by the City Attorney, to buy the fee tile for the McMenomy property. Location Map 2 Parks Master Plan Search Area Map 3 CITY OF ROSEMOUNT DAKOTA COUNTY, MINNESOTA RESOLUTION 2022-118 A RESOLUTION APPROVING THE CITY OF ROSEMOUNT TO ENTER INTO A PURCASHE AGREEMENT FOR THE MCMENOMY PROPERTY WHEREAS, the City of Rosemount participated in a planning process to create a multi- jurisdictional implementation strategy proposed for conservation areas and greenways; and WHEREAS, the conservation easements and greenways can be a valuable tool for the preservation of open space and wildlife corridors; and WHEREAS, the City of Rosemount supports the preservation and restoration of open space for its positive impact on our community’s natural resources; and WHEREAS, the addition of the park land in the community will allow for increased opportunities for residents to take part in recreational activities; and WHEREAS, the City of Rosemount has an opportunity to purchase the fee title to 69.48 acres of land with high quality natural resources. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Rosemount hereby approves a resolution to enter into an agreement for the purchase of Fee Title to the McMenomy property. th ADOPTED this 6 of September 2022. ______________________________ William Droste, Mayor ATTEST: __________________________ Erin Fasbender, City Clerk DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 DRAFT 8-31-22 AGREEMENT FOR THE PURCHASE OF FEE TITLE OF THE MCMENOMY PROPERTY This Real Estate Purchase Agreement (hereinafter referred to as the “Agreement”), made and entered into on the ___ day of ___________, 2022 (hereinafter called the “Effective Date”), by and between Michael F. McMenomy, having an undivided 29.2857% interest; John McMenomy, having an undivided 25.0% interest; Elizabeth A. McMenomy as trustee under the trust agreement of Elizabeth A. McMenomy, having an undivided 16.4286% interest; Daniel McMenomy, having an undivided 7.321425% interest; Robert McMenomy, having an undivided 7.321425% interest, Terry McMenomy, having an undivided 7.321425% interest; and William McMenomy, having an undivided 7.321425% interest; (hereinafter collectively called the “Seller”); and the City of Rosemount, a Minnesota municipal corporation, (hereinafter called the “Buyer”) (and hereafter each a “Party” and collectively the “Parties”). WITNESSETH WHEREAS, the above named individuals collectively referred to as Seller is not a partnership, joint venture or agent of each other, but rather individuals or trusts who each own an individual undivided interest as tenants in common in the percentage of ownership as stated above to the Property, defined in paragraph 1.k., below; and WHEREAS, the above individual sellers are not liable for the actions or omissions of each other and are not liable for the individual representations and warranties made herein by each individual seller ; and WHEREAS, Seller is the owner of real property (PID 34-01610-01-010) as defined in paragraph 1.k., below, situated in Dakota County, Minnesota; and WHEREAS, Seller agrees to sell, and Buyer agrees to buy fee title to the Property. NOW, THEREFORE, in consideration of the mutual promises and covenants and agreements stated in this document, it is agreed by and between Seller and Buyer as follows: AGREEMENT 1.DEFINITIONS. As used in this Agreement, the following terms shall have the meaning provided herein: a.“Access” shall mean a temporary pedestrian access easement commencing from the date of closing for three (3) years as legally described on Exhibit E attached hereto. Said access easement shall terminate if new access is provided to the southern portion of the Property DOCSOPEN\RS220\432\820226.v2-8/31/22 2 from adjacent property (PIN 34-01610-09-010) to the north or from adjacent property (PIN 34-01610-75-010) to the south. b. “Agreement” shall mean this Agreement for the purchase of the Property by Buyer from Seller as of the Effective Date. c. “Closing” shall mean the process by which the Buyer, Seller and Title Company execute all necessary documents, together with any other documents required by the Seller or the Title Company to complete the transaction contemplated herein. d. “Closing Date” shall mean on or before November 30, 2022. e. “Corridor Easement” shall mean the Regional Greenway Corridor Easementencumbering the Property to preserve it primarily in its present state for the conservation purpose of protection of a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem as that phrase is used in Section 170(h)(4)(A)(ii) of the Internal Revenue Code, or as that section may be amended from time to time, and in the regulations promulgated thereunder; and which allows a paved recreational trail and associated trail amenities, legally described on Exhibit C and generally depicted on Exhibit C-1, attached hereto. f. “Easement Areas” shall mean that certain real estate encumbered by a Natural Area Conservation Easement and a Corridor Easement, both to be acquired by the County of Dakota and situated in Dakota County, Minnesota, as legally described on Exhibits B and C, respectively, and generally depicted on Exhibits B-1 and C-1, respectively attached hereto. g. “Effective Date” shall mean the last date of execution by either Party to this Agreement. h. “Environmental Law” shall mean each and every federal, state, and local law, statute, ordinance, regulation, rule, judicial or administrative order or decree, permit, license, approval, authorization or similar requirement pertaining to the protection of human health and safety or the environment. i. “Hazardous Substance” shall mean any substance which is (i) defined as a hazardous substance, hazardous material, hazardous waste, poll utant or contaminant under any Environmental Law, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof, (iii) hazardous, toxic, corrosive, flammable, explosive, infectious, radioactive, carcinogenic, or reproductive toxicant, (iv) r egulated pursuant to any Environmental Law(s), or (v) any pesticide regulated under state or federal law. j. “Natural Area Conservation Easement” shall mean an instrument encumbering the Property to preserve it primarily in its present state for the conservation purpose of protection of a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem as that phrase is used in Section 170(h)(4)(A)(ii) of the Internal Revenue Code, or as that DOCSOPEN\RS220\432\820226.v2-8/31/22 3 section may be amended from time to time, and in the regulations promulgated thereunder, legally described on Exhibit B and generally depicted on Exhibit B-1, attached hereto. k. “Property” shall mean that separate tax parcel having Property Identification Number 34- 01610-01-010, legally described in Exhibit A and generally depicted in Exhibit A-1, attached hereto and to be partially encumbered by the Natural Area Conservation Easement and the Regional Greenway Corridor Easement. l. “Purchase Price” shall mean the sum of Three Hundred Fifty-Two Thousand Nine Hundred Eighty Dollars ($352,980). m. “Title Company” shall mean DCA Title Company located at 7373 - 147th Street West, Suite 161, Apple Valley, Minnesota 55124. 2. FEE OWNER. Each individual seller represents that they own an undivided interest as a tenant in common in the Property as stated above and hereby agrees to sell the Property, subject only to the following exceptions: a. Building and zoning laws, ordinances, St ate and Federal regulations. b. Utility, drainage, and public road easements of record. c. Natural Area Conservation Easement, Corridor Easement and any other easements, restrictions, and reservations of record, if any. 3. DEVELOPMENT RIGHTS. There are two development rights currently allowed by local ordinance on the Property. Seller previously agreed to convey all existing development rights to Buyer upon the conveyance of a Natural Area Conservation Easement on the Property, and Seller shall retain no development rights. Upon the Closing, no development rights shall remain within the Easement Area. The status of any development rights shall be subject to the terms and conditions of the Natural Area Conservation Easement and Corridor Easement. 4. TITLE EXAMINATION. Within twenty (20) days after the Effective Date, Buyer shall pay the entire cost for updating the title insurance commitment/binder. Buyer shall have twenty (20) days after its receipt of the title commitment to make any objections to title (hereinafter referred to as “Objections"). Buyer shall make any such Objections in writing or the Objection shall be deemed waived. If Objections are made, Seller shall have one hundred twenty (120) days following receipt of the Objections to make title marketable. If title is not marketable and is not made so within one hundred twenty (120) days from Seller’s receipt of the Objections, Buyer may terminate this Agreement and neither Party shall have any rights or obligations hereunder, nor be liable for damages or costs to the other Party. DOCSOPEN\RS220\432\820226.v2-8/31/22 4 If Buyer obtains title insurance, Buyer is not waiving the right to obtain a good and marketable title of record from Seller. 5. PAYMENT TERMS. As consideration for the covenants and agreements made herein, Buyer agrees to pay the Purchase Price to Seller for the Property, less closing costs as allocated in Paragraph 6, below, payable in cash upon the execution and delivery of the Warranty Deed and other documents necessary to complete the Closing on the Closing Date. Payment of the Purchase Price shall be distributed as follows: a. Michael F. McMenomy shall receive $103,373 b. John McMenomy shall receive $88,245 c. Elizabeth A. McMenomy shall receive $57,990 d. Daniel McMenomy shall receive $25,843 e. Robert. McMenomy shall receive $25,843 f. Terry McMenomy shall receive $25,843 g. William McMenomy shall receive $25,843 6. CLOSING COSTS. a. Seller shall be responsible for, and pay the following costs: tax and judgment search; any corrective title action taken by Seller and fees associated with Seller’s efforts to make title marketable, if any; Seller’s attorneys’ fees; and fifty (50) percent of closing fees charged by the Title Company. If a power of attorney is necessary for Seller to complete the Closing, then Seller is responsible for all costs associated with the power of attorney document including, but not limited, to the preparation costs and recording fees. b. Buyer is responsible for paying the following costs: special assessment search; title commitment and supplements; examination fee; name search; property inspection; title insurance premium; fifty (50) percent of closing fees charged by the Title Company; and Buyer’s attorneys’ fees. 7. SELLER’S CLOSING DOCUMENTS. Seller agrees to execute and deliver the following documents to Buyer on the date of closing: a. A duly recordable Warranty Deed conveying the Property to Buyer. b. A Bring-Down Certificate, as defined below. c. Standard form Affidavit of Seller. d. Affidavit of the Seller confirming that the Seller is not a foreign person within the meaning of Section 1445 of the Internal Revenue Code. DOCSOPEN\RS220\432\820226.v2-8/31/22 5 e. A completed Minnesota Well Disclosure Certificate or a statement that the Seller is not aware of any wells on the Property. f. Evidence of the Seller’s authority and authorization to enter this transaction as may b e required by the Title Company. g. Such other documents as may be reasonably required by the Title Company. 8. TAXES AND SPECIAL ASSESSMENTS. Seller shall pay past due, deferred Green Acres taxes, and any special assessments levied against the Property. Seller shall pay, on or before the Closing Date, all levied special assessments, constituting a lien against the Property as of the Closing Date, including, without limitation, any installments of special assessments that are payable with general real estate taxes in the year in which Closing occurs. 9. SELLER’S REPRESENTATIONS AND WARRANTIES. Each individual seller warrants that the following are true in all material respects now and will be true in all material respects on the Closing Date: a. Each individual seller has requisite power and authority to enter into and perform this Agreement (and the persons signing this Agreement as Seller have full power and authority to sign for Seller and to bind them to this Agreement) and to sell, transfer and convey all right, title and interest in and to the Property. b. To each individual seller’s knowledge, the execution of this Agreement will not constitute a breach or default under any agreement to which the Seller is bound and/or to which the Property is subject. c. To each individual seller’s knowledge, there is no suit, action, arbitration, or legal, administrative or other proceeding or injury pending or threatened against the Property or any portion thereof or pending or threatened against the Seller which could affect the Seller’s title to the Property or subject an owner of the Property to liability. d. To each individual seller’s knowledge, there is no lease, license, permit, option, right of first refusal or other agreement, oral or written, which affects the Property. e. To each individual seller’s knowledge There is a right of access to the Property from a public right of wa y. f. To each individual seller’s knowledge, there are no present violations of any restric tions relating to the use or improvement of the Property or any uncured notices which have been served upon the Seller by any governmental agency notifying the Seller of any violations of statute, order, ordinance, rule, requirement, or regulation which would affect the Property or any portion thereof. DOCSOPEN\RS220\432\820226.v2-8/31/22 6 g. To each individual seller’s knowledge, the Property is not subject to a lien for Medical Assistance or other public assistance. h. To each individual seller’s knowledge, the individual seller has no knowledge, nor does Seller have reason to know, of any condition at, on, under or related to the Property presently or potentially posing a significant hazard to human health or the environment (whether or not such condition constitutes a violation of Environmental Laws, as previously defined). i. To each individual seller’s knowledge, the individual seller has no knowledge, nor does Seller have reason to know, of any production, use, treatment, storage, transportation, or disposal of any Hazardous Substance (as previously defined) on or under the Property or, nor has there been any release or threatened release of any Hazardous Substance, pollutant or contaminant into, upon or over the Property or into or upon ground or surface water at the Property or within the immediate vicinity of the Property. j. To each individual seller’s knowledge, the individual seller is in compliance with all laws and regulations in connection with any handling, use, storage or disposal of Hazardous Substances at the Property, including the maintenance of all required permits and approvals. k. To each individual seller’s knowledge, the individual seller is in compliance with all Environmental Laws with respect to the Property. l. To the best of the Seller’s knowledge, no sewage treatment system exists on the Property. m. To the best of each individual seller’s knowledge, no wells exists on the Property. n. To the best of each individual seller’s knowledge, methamphetamine production has not occurred on the Property. Each of the above representations is material and is relied upon by Buyer. Except insofar as the Seller has advised Buyer in writing to the contrary, each of the above representations shall be deemed to have been made as of Closing and shall survive Closing for a period of one (1) year after the Closing Date. At Closing, Seller shall deliver to Buyer a certificate in a form satisfactory to Buyer stating that each of the above representations is true and correct as of Closing (hereinafter referred to as the “Bring-Down Certificate”). The If, before the Closing, the Seller discovers any information or facts that would materially change these warranties and representations, the Seller shall immediately give notice to Buyer of those facts and information. If any of the foregoing representations and warranties ceases to be true before the Closing, the Seller will promptly remedy the problem, at the Seller’s sole cost and expense, upon receipt of notice DOCSOPEN\RS220\432\820226.v2-8/31/22 7 by Buyer. If the material change is not remedied before Closing, Buyer may elect to either (a) terminate this Agreement and Buyer shall have no obligation to purchase the Property or (b) defer the Closing until such material change has been remedied. Buyer’s election in this regard shall not constitute a waiver of Buyer’s rights in regard to any loss or liability suffered as a result of a representation or warranty not being true nor shall it constitute a waiver of any other remedies provided in this Agreement or by law or in equity. 10. ACCESS EASEMENT. Legal access to the southern portion of the Property is not currently available via adjacent public land or right of way. A temporary pedestrian Access Easement to the Property shall be conveyed to Buyer at Closing. 11. CONDITIONS PRECEDENT FOR BUYER. In addition to the title examination, the purchase of the Property by Buyer is contingent upon: a. Buyer determining in its sole discretion that the condition of the Property is acceptable. From the date of this Agreement through November 15, 2022, or two weeks prior to the Date of Closing, the Buyer, its employees, contractors, and agents shall have the right to inspect and investigate the Property at all reasonable times and to perform any tests it deems necessary, including tests to evaluate the environmental condition of the Property. Buyer shall coordinate any such inspections to accommodate the schedule of Seller, who shall not unreasonably withhold permission to inspect or investigate. Buyer shall repair any damage to the Property occurring in connection with any such testing and restore the land and property to its original condition prior to the testing to Seller’s reasonable satisfaction. Buyer agrees to promptly refill holes dug and repair any damage to the Property as a result of its activities. Buyer shall keep the property free of any liens or third-party claims as a result of testing or its activities on the Property. Buyer agrees to indemnify and hold harmless Seller from any loss, cost or expense (including reasonable attorneys' fees) for death, bodily injury or damage to the Property related to Buyer’s tests or to Buyer's or its agents or contractors presence on the Property. b. The Minnesota Department of Natural Resources’ (hereinafter referred to as the “DNR”) acceptance of the appraised value of the Property and Natural Area Conservation Easement, as determined by an independent technical review appraiser hired by the DNR to evaluate the appraisal report. c. Seller signing and executing a separate purchase agreement with the County of Dakota to convey a 63.2-acre Natural Area Conservation Easement to the County of Dakota for the purchase price of Two Million Seven Hundred Fifteen Thousand Three Hundred Twenty- Two Dollars ($2,715,322) and Sellers signing and conveying the Natural Area Conservation Easement to the County of Dakota. d. Seller signing and executing a separate purchase agreement with the County of Dakota to convey a 5.7-acre Corridor Easement to the County of Dakota for the purchase price of Two Hundred Forty-Six Thousand Eight Hundred Forty -Eight Dollars ($246,848) and Sellers signing and conveying the Corridor Easement to the County of Dakota. DOCSOPEN\RS220\432\820226.v2-8/31/22 8 e. The Metropolitan Council approving a seventy-five percent (75%) Acquisition Opportunity Fund grant to the County of Dakota for the purchase of the Corridor Easement. If the above contingencies are not satisfied Buyer may terminate this Agreement and neither Party shall be liable for damages to the other Party. 12. CONDITION PRECEDENT FOR SELLER. The sale of the Property from the Seller to the Buyer is conditioned upon the following: a. The County of Dakota executing a separate purchase agreement with the Seller and full payment of Two Million Seven Hundred Fifteen Thousand Three Hundred Twenty- Two Dollars ($2,715,322) to the Seller for a 63.2-acre Natural Area Conservation Easement on the Property. b. The County of Dakota executing a separate purchase agreement with the Seller and full payment of Two Hundred Forty-Six Thousand Eight Hundred Forty-Eight Dollars ($246,848) for a Corridor Easement on the Property. c. The City approving the purchase of the Property for Three Hundred Fifty-Two Thousand Nine Hundred Eighty Dollars ($352,980), as documented by a resolution approving the purchase of the Property by the Rosemount City Council. d. Seller’s approval of the terms of the Access Easement. e. Seller’s approval of the terms of the Wastewater Facility Rights Agreement and Easement and the location of the Wastewater Facility in favor of the Metropolitan Council under the Corridor Easement. 13. METROPOLITAN COUNCIL FUNDING RESTRICTIONS AND COVENANTS. The Buyer and Seller acknowledge that the County of Dakota’s purchase of the Corridor Easement may be funded, in part, by a grant from the Metropolitan Council (hereinafter refer red as the “Council”) which requires the following additional restrictions on the Property for funding eligibility, and hereby place such restrictions and covenants on the Property in addition to the restrictions placed on the Property as follows: A. Conveyances. Buyer may not sell, lease, or mortgage the Easement Area or any portion thereof, or otherwise convey or grant any other easement or allow any other encumbrance to be placed against the Corridor Easement or restrict the use thereof unless the written approval of the Council or its successors is duly filed and recorded at the time of the filing and recording of the instrument to which such approval pertains. b. Regional Purpose. The Corridor Easement shall be used solely for regional recreational open space purposes as those purposes are from time to time defined by the Council or its successors, unless the Council or its successors shall consent to the other use or uses by DOCSOPEN\RS220\432\820226.v2-8/31/22 9 written instrument duly filed and recorded and designating the nature, extent, and duration of the use for which such consent is given. Without limiting the foregoing, the Regional Trail and Wastewater Facilities (see Section 15.c. below), together with uses such as benches, bike racks, local trail connections, information kiosks, retaining walls, drinking fountains, and tables, and fences are permitted uses for regional recreational open space purposes. c. Wastewater Facilities. Seller and Buyer acknowledge that, as a condition for the County of Dakota to receive funding from the Council, Buyer and County of Dakota must grant the Council the option to construct, operate and maintain Wastewater Facilities in the Easement Area. Seller consents to and permits the Buyer to assign the rights necessary to accomplish the construction, operation and maintenance of the Wastewater Facility (hereinafter referred to as the “Wastewater Facility Rights”) to the Council, its successors or assigns. Upon written request by and at no cost to the Council, Buyer will execute and deliver to the Council an assignment of rights allowing the Council to construct, install, operate and maintain the Wastewater Facilities over, under and across the Easement Area substantially in the form of the assignment attached hereto and incorporated herein as the attached Exhibit D for the location or locations described by the Council in its written request to Buyer. The Parties acknowledge that pursuant to a Grant Agreement entered or to be entered between the Council and the County of Dakota, Council may exercise its contractual right to the Wastewater Facilities Rights on one or more occasions. Buyer agrees that the Wastewater Facilities Rights may not be exercised unless assigned to the Council, its successors or assigns. If the County of Dakota is eligible to receive Council funding for the Corridor Easement on the Property, Buyer and Seller will allow the above-described, additional Council-required restrictions within the Property substantially in the form of the attached Exhibit D. 14. CLOSING. The Closing shall occur on the Closing Date at Title Company’s office. Seller and Buyer may mutually agree in writing to alter the Closing Date. 15. RISK OF LOSS. Until Closing, all risk of loss is on Seller. If the Easement Area is damaged prior to closing, Seller shall give Buyer notice within five (5) business days after such damage has occurred. The notice shall include Seller’s proposal for repairing t he damage. From the date that Buyer receives Seller’s notice, Buyer shall have three (3) business days to inspect the Easement Area and an additional (2) business days to determine if the damages and the Seller’s proposal for repairs are acceptable to Buyer, at Buyer’s sole discretion. If Buyer does not accept Seller’s proposal for repairs within the five (5) business day period, Buyer may terminate this Agreement and neither party shall have any further rights of obligations hereunder. DOCSOPEN\RS220\432\820226.v2-8/31/22 10 16.REMEDIES UPON DEFAULT. In the event that Seller defaults in the performance of any of its obligations under this Agreement, Buyer shall, in addition to any and all other remedies provided in this Agreement or at law or in equity, have the right of specific performance against Seller. In the event that Buyer defaults in the performance of any of its obligations under this Agreement, Seller shall have, as its sole and exclusive remedy, the right to terminate this Agreement by giving 30 days’ written notice to Buyer, as permitted by Minnesota Statutes § 559.21 as amended from time to time. 17.NO BROKER’S COMMISSION. The Buyer has not used a real estate broker in connection with this Agreement or the transaction contemplated by this Agreement and the Parties agree that the Buyer is not responsible for any portion of a broker’s commission or finder’s fee related to the Seller . In the event that the Seller has used a broker, or any person asserts a claim for a broker’s commission or finder’s fee related to the Seller, that the Seller will indemnify, defend, and hold the Buyer harmless from and against the claim and this indemnification shall survive Closing or any earlier termination of this Agreement. 18.WAIVER OF DISCLOSURE. Unless otherwise required herein, Buyer waives the written disclosures required under Minnesota Statutes §§ 513.52 to 513.60 as applicable. 19.MISCELLANEOUS. a.Time of Essence. The Parties hereto agree that time is of the essence in the performance of this Agreement. b.Notices. Notices to be given under this Agreement shall be in writing and sent by registered or certified mail, addressed to the Parties at the following addresses: With respect to Buyer: City of Rosemount Attn: City Administrator 2875 145th Street West Rosemount, MN 55068-2997 With copies to: Kennedy & Graven, Chartered Attn: Rosemount City Attorney Fifth Street Towers 150 South Fifth Street, Suite 700 Minneapolis, MN 55402 DOCSOPEN\RS220\432\820226.v2-8/31/22 11 With respect to Seller: Michael F. McMenomy 1838 Fairmount Avenue St Paul, MN 55105 John McMenomy 1419 Park Street White Bear MN 55110 Elizabeth A. McMenomy as trustee under the trust agreement of Elizabeth A. McMenomy 3610 Upper 143 ST W Rosemount, MN 55068 Daniel McMenomy 6097 East Ironwood Drive Scottsdale, AZ 85266 Robert McMenomy 2912 Rose Avenue McHenry, IL 60050 Terry McMenomy 28390 S Larch Road St. Maries, ID 83861 William McMenomy 9331 SE 170th Humphreys Loop The Villages, FL 32162 The addresses to which notices are to be mailed to either Party may be changed by such Party by giving written notice thereof to the other Party in the manner above provided. c.Non-Joint Venture. The Parties agree that nothing contained herein shall be considered a partnership or joint venture undertaken by the Parties. d.Minnesota Law. This Agreement shall be governed by the laws of the State of Minnesota. Venue for all legal proceedings arising out of this Agreement, or breach thereof, shall be in the state or federal court with competent jurisdiction in Dakota County, Minnesota. e.Representation by Counsel. The Seller understands that the Buyer and the County Attorney’s Office do not represent the Seller in this matter. The Seller has had an opportunity to review the terms of this Agreement with Seller’s own legal counsel, whether Seller has elected to consult with counsel or not. Seller has read and understands the terms of this Agreement and agrees to be bound by the terms of this Agreement. f.Entire Agreement. This Agreement, along with any exhibits, appendices, addendums, schedules, and written amendments hereto, encompasses the entire agreement of the Parties, and supersedes all previous understandings and agreements between the Parties, whether oral or written. g.Amendments. Any amendments or modifications to this Agreement shall be in writing and shall be executed by the same Parties who executed the original Agreement or their heirs, successors, or assigns. DOCSOPEN\RS220\432\820226.v2-8/31/22 12 h.Waiver. The waiver by any Party of a breach of any provision of this Agreement shall not be deemed a continuing waiver or a waiver of any subsequent breach whether of the same or another provision of this Agreement. i.Severability. Each provision of this Agreement is severable from any other provision of this Agreement. Should any provision of this Agreement for any reason be unenforceable, the balance of the Agreement shall nonetheless be of full force and effect. j.Headings. The headings used in this Agreement are for convenience of reference only and shall not operate or be construed to alter or affect the meaning of any of the provisions in this Agreement. k.Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one and the same agreement. -This Space Intentionally Left Blank- DOCSOPEN\RS220\432\820226.v2-8/31/22 13 IN TESTIMONY WHEREOF, the Parties hereto have caused this Agreement to be executed the day and year first recited herein. SELLER Michael F. McMenomy Date of Signature____________________ John McMenomy Date of Signature____________________ Elizabeth A. McMenomy, as trustee under the trust agreement of Elizabeth A. McMenomy Date of Signature____________________ Daniel McMenomy Date of Signature____________________ Robert McMenomy Date of Signature____________________ Terry McMenomy Date of Signature____________________ William McMenomy DOCSOPEN\RS220\432\820226.v2-8/31/22 14 Date of Signature____________________ BUYER City of Rosemount ________________________________ Name, Title Date of Signature____________________ ________________________________ Name, Title Date of Signature____________________ Approved as to form: ________________________________ City Attorney Date of Signature___________________ Approved by City Council Resolution No. 22-___ 15 15 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 EXHIBIT A Legal Description of the Property The East one half of the Northeast quarter (E ½ of NE ¼) of Section Sixteen (16), Township One hundred fifteen (115), Range Nineteen (19), Dakota County, Minnesota, according to the United States Government survey thereof, except, however, the North half of the South half of the Southeast quarter of the Northeast quarter (N ½ of S ½ of SE ¼ of NE ¼) of said Section Sixteen (16), Township One hundred fifteen (115), Range Nineteen (19), together with the right of way privilege reserved by M. P. Hobart over a stri p of One (1) rod in width of the East side of said North Half of the South half of the Southeast quarter of the Northeast quarter (N ½ of S ½ of SE ¼ of NE ¼) and subject to the right of way privileges granted by the said Hobart to Louis Krohne over a strip one (1) rod wide of the East side of the said East half of the Northeast quarter (E ½ of NE ¼) of said Section Sixteen (16), Town and Range aforesaid as set forth and described in a warranty deed executed by said Hobart and wife to Louis Krohne, dated Fe bruary 2, 1912, recorded February 3, 1912 in the office of the Register of Deeds of said County in Book 118 of Deeds on page 202. Legal Description of the Temporary Pedestrian Access Easement to the Easement on the McMenomy Property A temporary pedestrian access easement over the north 10.00 feet of the west 1340.00 feet of the North Half of the Southeast Quarter of Section 16, Township 115 North, Range 19 West, Dakota County, Minnesota, 16 16 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 EXHIBIT A-1 Depiction of the Property 17 17 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 Exhibit B Legal Description of the Natural Area Conservation Easement A permanent Natural Area Conservation Easement over the East Half of the Northeast Quarter of Section 16, Township 115 North, Range 19 West, Dakota County, Minnesota, EXCEPTING therefrom the North Half of the South Half of the Southeast Quarter of said Northeast Quarter of Section 16. And ALSO EXCEPTING from said easement the following described parcel: Commencing at the northwest corner of said Southeast Quarter of the Northeast Quarter of Section 16; thence South 00 degrees 11 minutes 32 seconds West, assumed bearing, along the west line of said Southeast Quarter of the Northeast Quarter of Section 16; a distance of 63.40 feet to the point of beginning of the easement to be described; thence South 82 degrees 07 minutes 25 seconds East a distance of 358.17 feet; thence South 63 degrees 17 minutes 26 seconds East a distance of 201.49 feet; thence South 38 degrees 57 minutes 20 seconds East a distance of 373.07 feet; thence South 86 degrees 06 minutes 37 seconds East a distance of 194.62 feet; thence South 05 degrees 17 minutes 18 seconds East a distance of 142.12 feet to the north line of the North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence South 20 degrees 38 minutes 00 seconds West a distance of 348.58 feet to the south line of said North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence South 22 degrees 04 minutes 11 seconds East a distance of 300.31 feet; thence South 88 degrees 04 minutes 32 seconds East a distance of 186.66 feet; thence South 21 degrees 39 minutes 44 seconds East, a distance of 43.16 feet to the south line of said Southeast Quarter of the Northeast Quarter of Section 16; thence South 89 degrees 48 minutes 03 seconds West along said south line of the Southeast Quarter of the Northeast Quarter of Section 16, a distance of 400.06 feet; thence North 11 degrees 04 minutes 12 seconds West a distance of 331.72 feet to said south line of the North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence North 05 degrees 01 minutes 40 seconds East a distance of 234.26 feet; thence North 50 degrees 33 minutes 11 seconds West a distance of 144.92 feet to said north line of the North Half of the South Half of said Southeast quarter of the Northeast Quarte r; thence North 07 degrees 26 minutes 21 seconds West a distance of 186.45 feet; thence North 40 degrees 57 minutes 20 seconds West a distance of 227.33 feet; thence North 86 degrees 08 minutes 54 seconds West, a distance of 442.50 feet to said west line of the Southeast Quarter of the Northeast Quarter of Section 16; thence North 00 degrees 11 minutes 32 seconds East along said west line of the Southeast Quarter of the Northeast Quarter of Section 16 a distance of 199.52 feet to the point of beginning. And ALSO EXCEPTING from said easement that part of the South Half of the South Half of the Southeast Quarter of the Northeast Quarter, Section 16, Township 115 North, Range 19 West, Dakota County, Minnesota described as follows: Commencing at the southeast corner of said Southeast Quarter of the Northeast Quarter of said Section 16; thence South 89 degrees 48 minutes 03 seconds West, assumed bearing, along the south line of said Southeast Quarter of the Northeast Quarter of Section 16 a distance of 550.56 feet to the point of beginning of the parcel to be described; thence continue South 89 degrees 48 minutes 03 seconds West along said south line a distance of 142.56 feet; thence North 00 degrees 11 minutes 57 seconds West a distance of 179.20 feet; thence North 89 degrees 48 minutes 03 seconds East a distance of 108.15 feet; thence South 11 degrees 04 minutes 12 seconds East a distance of 182.47 feet to the point of beginning. 18 18 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 Easement Area: 63.2 acres Exhibit B-1 Depiction of the Natural Area Conservation Easement 19 19 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 Exhibit C Legal Description of the Corridor Easement A permanent regional greenway corridor easement over that part of the Southeast Quarter of the Northeast Quarter, Section 16, Township 115 North, Range 19 West, Dakota Cou nty, Minnesota described as follows: Commencing at the northwest corner of said Southeast Quarter of the Northeast Quarter of Section 16; thence South 00 degrees 11 minutes 32 seconds West, assumed bearing, along the west line of said Southeast Quarter of the Northeast Quarter of Section 16; a distance of 63.40 feet to the point of beginning of the easement to be described; thence South 82 degrees 07 minutes 25 seconds East a distance of 358.17 feet; thence South 63 degrees 17 minutes 26 seconds East a dis tance of 201.49 feet; thence South 38 degrees 57 minutes 20 seconds East a distance of 373.07 feet; thence South 86 degrees 06 minutes 37 seconds East a distance of 194.62 feet; thence South 05 degrees 17 minutes 18 seconds East a distance of 142.12 feet to the north line of the North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence South 20 degrees 38 minutes 00 seconds West a distance of 348.58 feet to the south line of said North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence South 22 degrees 04 minutes 11 seconds east a distance of 300.31 feet; thence South 88 degrees 04 minutes 32 seconds East a distance of 186.66 feet; thence South 21 degrees 39 minutes 44 seconds East, a distance of 43.16 feet to the south line of said Southeast Quarter of the Northeast Quarter of Section 16; thence South 89 degrees 48 minutes 03 seconds West along said south line of the Southeast Quarter of the Northeast Quarter of Section 16, a distance of 400.06 feet; thence North 11 degrees 04 minutes 12 seconds West a distance of 331.72 feet to said south line of the North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence North 05 degrees 01 minutes 40 seconds East a distance of 234.26 feet; thence North 50 degrees 33 minutes 11 seconds West a distance of 144.92 feet to said north line of the North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence North 07 degrees 26 minutes 21 seconds West a distance of 186.45 feet; thence North 40 degrees 57 minutes 20 seconds West a distance of 227.33 feet; thence North 86 degrees 08 minutes 54 seconds West, a distance of 442.50 feet to said west line of the Southeast Quarter of the Northeast Quarter of Section 16; t hence North 00 degrees 11 minutes 32 seconds East along said west line of the Southeast Quarter of the Northeast Quarter of Section 16 a distance of 199.52 feet to the point of beginning EXCEPTING from said Greenway easement that part lying within said North Half of the South Half of the Southeast Quarter of the Northeast Quarter of said Section 16. Easement Area = 5.72 acres 20 20 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 Exhibit C-1 Depiction of the Corridor Easement 21 21 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 Exhibit D AGREEMENT AND RESTRICTIVE COVENANT THIS AGREEMENT AND RESTRICTIVE COVENANT is made and entered into this ________ day _________________, 202_, by and between COUNTY OF DAKOTA (the “Grantee”) and the Metropolitan Council, a political subdivision of the State of Minnesota (the “Council”). RECITALS 390. The Grantee has acquired the following described real property, to-wit: See attached Exhibit A, hereinafter referred to as the “Corridor Easement.” 2. The Council has contributed funds toward the acquisition of the Corridor Easement pursuant to its grant program authorized by chapter 563, Laws of Minnesota, 1974. 3. The grant program was established pursuant to the law to provide for the acquisition, preservation, protection, development, and betterment of regional recreational open space for public use. 4. The grant agreement under which the Council contributed funds towards the acquisition of the Corridor Easement is identified as SG-_______. NOW, THEREFORE, in consideration of the grant made by the Council to the Grantee and in consideration of the mutual agreements and covenants contained in this Agreement, the parties agree as follows: 390. No sale, lease, mortgage, or other conveyance, nor the creation of any easement, restriction, or other encumbrance against the Corridor Easement shall be valid for any purpose unless the written approval of the Council or its successors is duly filed and recorded at the time of the filing and recording of the instrument to which such approval pertains, nor shall the Corridor Easement be used for any purpose except regional recreational open space purposes as those purposes are from time to time defined by the Council or its successors, unless the Council or its successors shall consent to the other use or uses by written instrument duly filed and recorded and designating the nature, extent, and duration of the use for which such consent is given. 22 22 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 2. As a condition to this Grant, and provided that conveyance of such easement or easements is consistent with the Approved Master Plan, the Grantee agrees to convey to the Council, its successors or assigns, a permanent easement or easements, hereinafter referred to as “Wastewater Facilities Easement[s]” for future regional wastewater conveyance corridors within the Easement Area. Upon written request by and at no cost to the Council, Grantee will execute and deliver to the Council the Wastewater Facilities Easement[s] substantially in the form of the Easement attached hereto and incorporated herein for the location or locations described by the Council in its written request to Grantee. The Council may exercise this contractual right to the Wastewater Facilities Easement[s] on one or more occasions. The Council agrees to work cooperatively with Grantee to locate the Wastewater Facilities Easement[s] and the regional wastewater conveyance facilities within the Easement Area in a manner which minimizes the impact on existing and planned park system facilities within the Easement Area and natural resources. As further consideration for the conveyance of the Wastewater Facilities Easement[s], the Council agrees to waive the Sewer Availability Charge for the Easement Area. As a further condition for this Grant, the Council may, at any time after execution of this Grant, provide to Grantee written notification of the proposed location of a future regional wastewater conveyance corridor within the Easement Area. Grantee agrees not to place or allow to be placed any restrictions, conditions, or encumbrances on the Corridor Easement within the proposed future regional wastewater conveyance corridor without the written consent of the Council. This Agreement and Restrictive Covenant may be enforced by the Council or its successors, as then defined, by appropriate action in the courts of the State of Minnesota. -This Space Intentionally Left Blank- 23 23 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 IN WITNESS WHEREOF, the parties have caused this instrument to be executed in their respective names all as of the date first above written. METROPOLITAN COUNCIL, a public corporation and political subdivision of the State of Minnesota _______________________________ Name, Community Development Director Date: _________________________ STATE OF MINNESOTA) ) SS. COUNTY OF RAMSEY ) The foregoing instrument was acknowledged before me this ____ day of _______________________, 202_, by _____Name_____, Community Development Director of the METROPOLITAN COUNCIL, a public corporation and political subdivision of the State of Minnesota, on its behalf. ________________________________ Notary Public 24 24 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 COUNTY OF DAKOTA Name, Chair Board of Commissioners Attested to By: Name, Clerk to the Board Approved by Dakota County Board Resolution No. 2_-___ Approved as to Form: Assistant County Attorney Date: ___________________ KS-2_-__________ Contract No._____________ STATE OF MINNESOTA ) ) SS COUNTY OF _________ ) On the ______ day of __________________, 202_, before me a notary public within and for the County of Dakota, personally appeared _________Name__________, Chair of the Board of Commissioners and acknowledged that s/he executed said instrument on behalf of the County by authority of its Board. ___________________________ Notary Public THIS INSTRUMENT WAS DRAFTED BY: Peter A. Hanf, Associate General Counsel License No. 0268124 Metropolitan Council 390 Robert Street No 25 25 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 St. Paul, MN 55101 EXHIBIT A TO AGREEMENT Project Description -Insert project description- Legal Description Property Identification Number: 34-01610-01-010 A permanent regional greenway corridor easement over that part of the Southeast Quarter of the Northeast Quarter, Section 16, Township 115 North, Range 19 West, Dakota County, Minnesota described as follows: Commencing at the northwest corner of said Southeast Quarter of the Northeast Quarter of Section 16; thence South 00 degrees 11 minutes 32 seconds West, assumed bearing, along the west line of said Southeast Quarter of the Northeast Quarter of Section 16; a distance of 63.40 feet to the point of beginning of the easement to be described; thence South 82 degrees 07 minutes 25 seconds East a dista nce of 358.17 feet; thence South 63 degrees 17 minutes 26 seconds East a distance of 201.49 feet; thence South 38 degrees 57 minutes 20 seconds East a distance of 373.07 feet; thence South 86 degrees 06 minutes 37 seconds East a distance of 194.62 feet; thence South 05 degrees 17 minutes 18 seconds East a distance of 142.12 feet to the north line of the North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence South 20 degrees 38 minutes 00 seconds West a distance of 348.58 feet to the south line of said North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence South 22 degrees 04 minutes 11 seconds East a distance of 300.31 feet; thence South 88 degrees 04 minutes 32 seconds East a distance of 186.66 feet; thence South 21 degrees 39 minutes 44 seconds East, a distance of 43.16 feet to the south line of said Southeast Quarter of the Northeast Quarter of Section 16; thence South 89 degrees 48 minutes 03 seconds West along said south line of the Southeast Quarter of the Northeast Quarter of Section 16, a distance of 400.06 feet; thence North 11 degrees 04 minutes 12 seconds West a distance of 331.72 feet to said south line of the North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence North 05 degrees 01 minutes 40 seconds East a distance of 234.26 feet; thence North 50 degrees 33 minutes 11 seconds West a distance of 144.92 feet to said north line of the North Half of the South Half of said Southeast quarter of the Northeast Quarter; thence North 07 degrees 26 minutes 21 seconds West a distance of 186.45 feet; thence North 40 degrees 57 minutes 20 seco nds West a distance of 227.33 feet; thence North 86 degrees 08 minutes 54 seconds West, a distance of 442.50 feet to said west line of the Southeast Quarter of the Northeast Quarter of Section 16; thence North 00 degrees 11 minutes 32 seconds East along said west line of the Southeast Quarter of the Northeast Quarter of Section 16 a distance of 26 26 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 199.52 feet to the point of beginning EXCEPTING from said Greenway easement that part lying within said North Half of the South Half of the Southeast Quarter of the Northeast Quarter of said Section 16. Easement Area = 5.72 acres [EXAMPLE] EASEMENT THIS INSTRUMENT, MADE THIS _____ day of _________________, 202_, by and between the County of Dakota, Grantor, and the Metropolitan Council, a public corporation and political subdivision of the state (successor to the Metropolitan Waste Control Commission), Grantee; WITNESSETH, that Grantor(s), in consideration of One Dollar and other good and valuable consideration to _________ in hand paid by Grantee, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell, and convey to Grantee, its successors and assigns, the following described easement for sanitary sewer and utility purposes: [Insert Legal Description of EASEMENT] Said temporary easement to expire on or before ____________________. The above described easement includes the rights of grantee, its contractors, agents and employees to do whatever is necessary for enjoyment of the rights granted herein including the right to enter the easement for purposes of constructing, operating, maintaining, altering, repairing, replacing, and/or removing said sewers and utilities. Grantor(s), ____________ heirs, successors and assigns, will not erect, construct, or create any building, improvement, obstruction or structure of any kind, either above or below the surface, or stockpile soils, construction debris, or construction equipment or change the grade thereof, without the express written permission of the Grantee. Metropolitan Council Grant SG-10927 Agreement and Restrictive Covenant DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 Notwithstanding the aforementioned provision, the following improvements by Grantor(s), heirs, successors, and assigns do not require Grantee’s written approval: fences, parking lots, street and/or roadways, landscaping, bushes, shrubs. However, Grantor(s) hereby agree(s) that Grantee will not be responsible for and will not pay for the loss of or any damage to or replace or restore the following items within the easement area: fences, trees, shrubs, bushes or other plantings, other than grass or sod. Grantor(s) covenant(s) that it is has acquired the above described Easement and has a lawful right and authority to convey and grant the easement described herein. -This Space Intentionally Left Blank- 28 28 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 IN WITNESS WHEREOF, the said Grantor(s) has/have caused this Easement to be executed as of the date noted above. GRANTOR COUNTY OF DAKOTA Name, Chair Board of Commissioners Attested to By: Name, Clerk to the Board Approved by Dakota County Board Resolution No. 2_-___ Approved as to Form: Assistant County Attorney Date: ___________________ KS-2_-__________ Contract No._____________ STATE OF MINNESOTA) ) SS COUNTY OF DAKOTA ) On the ______ day of __________________, 202_, before me a notary public within and for the County of Dakota, personally appeared ________Name________, Chair of the Board of Commissioners and acknowledged that he/she executed said instrument by authority of the Board. _____________________________ Notary Public 29 29 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 GRANTEE METROPOLITAN COUNCIL, a public corporation and political subdivision of the State of Minnesota _______________________________ Name, Regional Administrator Date: _______________________________ STATE OF MINNESOTA ) ) SS. COUNTY OF RAMSEY ) The foregoing instrument was acknowledged before me this ____ day of _______________________, 202_, by _____Name__________, Regional Administrator of the METROPOLITAN COUNCIL, a public corporation and political subdivision of the State of Minnesota, on its behalf. __________________________________ Notary Public THIS INSTRUMENT WAS DRAFTED BY: Peter A. Hanf Associate General Counsel License No. 0268124 Metropolitan Council 390 Robert Street North St. Paul, MN 55101 30 30 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 EXHIBIT E 31 31 DOCSOPEN\RS220\432\820226.v2-8/31/22 DOCSOPEN\RS220\432\820226.v2-8/31/22 Legal Description of the Temporary Pedestrian Access Easement A temporary pedestrian access easement over the north 10.00 feet of the west 1340.00 feet of the North Half of the Southeast Quarter of Section 16, Township 115 North, Range 19 West, Dakota County, Minnesota.