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HomeMy WebLinkAbout4.A.3. Approval of the developer's agreement for Valley Park Business Center 1st Addition 411111 Consent Business 4. A. 3. SHAKOPEE TO: Mayor and City Council Mark McNeill, City Administrator FROM: R. Michael Leek, Community Development Director DATE: 07/16/2013 SUBJECT: Approval of the developer's agreement for Valley Park Business Center 1st Addition Action Sought City Council is asked to approve the attached developer's agreement for Valley Park Business Center 1st Addition. Background Ordinarily, once a plat is approved the developer's agreement is drafted and executed without further Council action. The terms of the agreement are based on the City's template for developer's agreements and the conditions contained in the final plat approval. Because the plat of Valley Park Business Center 1st Addition is relatively unique, involving as it does the Emerson project, there has been much discussion between City staff and the City Attorney and representatives for the developer, Opus, and Emerson. The attached developer's agreement does not include an element that is part of the normal template, i.e. a requirement for posting of security for the public improvement project known as Innovation Boulevard. Because a portion of the cost of the project will be covered by a grant from MNDEED, and because Emerson is contemplating an almost immediate and substantial investment, it was determined that the City is exposed to very little risk that the assessments would not be paid. Indeed, provisions requiring security for payment of assessments are apparently unusual, and the City Attorney has suggested that the City may want to consider in the future doing away with that requirement. Recommendation It is recommended that the Council approve the developer's agreement attached, and direct the appropriate City officials to execute the agreement. Budget Impact There is no budget impact from the proposed action. Relationship to Vision This item relates to City Goal B. Positively manage the challenges and opportunities presented by growth development and change. Requested Action City Council is asked to offer and pass a motion approving the attached developer's agreement for Valley Park Business Center 1st Addition. Attachments: Developers Agreement Opus The space above is reserved for recording purposes iji SHAKOPE COMMUNITY PRIDE SINCE 1857 CITY OF SHAKOPEE SCOTT COUNTY, MINNESOTA DEVELOPER'S AGREEMENT THIS DEVELOPER'S AGREEMENT ( "Agreement "), made and entered into as of , 2013 ( "Effective Date "), by and among the City of Shakopee, a municipal corporation organized under the laws of the State of Minnesota ( "City "); Opus Development Company, L.L.C., a Delaware limited liability company ( "Developer "), and Rosemount Inc., a Minnesota corporation ( "Rosemount "). RECITALS (1) The Developer has made application to the City Council for approval of a plat of land within the corporate limits of the City described as follows: Valley Park Business Center First Addition, according to the recorded plat thereof, ( "Subdivision "), a copy of which is attached hereto and made a part hereof as Exhibit A; the property subject to the Subdivision is sometimes hereafter collectively referred to as the "Property "; and (2) The City Council, by Resolution No. 7323 adopted on July 2, 2013, has granted conditional approval to the Subdivision on the condition that the Developer and Rosemount enter into this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, promises and conditions contained in this Agreement, the City, Developer and Rosemount agree as follows: 1. DEFINITIONS. The following terms as used in this agreement have the meanings stated: 564006.00429.22955597.10 (A) "Street Improvements" means (i) construction of a ring road to be known as Innovation Boulevard (formerly known as Valley Industrial Boulevard North and Broadband Boulevard) (the, "Ring Road "), from near the intersection of Valley Industrial Boulevard North and Valley Park Drive, through the Property and to near the intersection of Valley Industrial Boulevard South and Valley Park Drive, including without limitation: (w) removal of existing roadway alignment and utilities previously installed, (x) street and curb construction, turn lanes, street lighting, storm water drainage and appurtenant work including, without limitation, access points to Quarry Lake Park; (y) grading of the Ring Road to accommodate a bituminous trail from the Ring Road's intersection at Valley Park Drive to the southeast corner of the Property (the "Trail Improvements "); and (z) undertaking of traffic and related studies to determine the desirability and feasibility for the potential future connection to the Ring Road of property to the west of and adjacent to the Property, and construction of all improvements relating to such future connection to the Ring Road (in addition to those improvements otherwise specifically enumerated in this clause (A)), including, without limitation, any such improvements to be located outside of the Property; and (ii) construction of a north -south road to be known as Innovation Drive ( "North -South Road "), from the northern portion of the Ring Road through the Property to the southern portion of the Ring Road, including without limitation street and curb construction, medians, turn lanes, decorative street lighting, storm water drainage and appurtenant work including, in each case, subgrade preparation, right -of -way grading and /or berm construction, the furnishing and the installation of all class 5 aggregate base, concrete curb and gutter, permanent surfacing, signage, concrete sidewalks, bituminous trails and all other appurtenant facilities. (B) "Sanitary Sewer Improvements" means construction and extension of sanitary sewer mains, pipes, and other appurtenances, together with stubs and extensions to accommodate connections for future building development, and appurtenant work serving the Property or portions thereof within the North -South Road and other portions of the Property from existing mains within or adjacent to the Ring Road. (C) "Water Distribution System Improvements" means construction and extension of domestic water mains, pipes, valves, fire hydrants and other appurtenances, together with stubs and extensions to accommodate connections for future building development, and appurtenant work serving the Property or portions thereof within the North -South Road and other portions of the Property from existing mains within or adjacent to the Ring Road. (D) "Street Lighting Improvements" means the furnishing and the installation of all street lighting including poles, arms, lamps, fixtures, conduit, underground wiring, transformers, pedestals and any other appurtenant street lighting facilities. (E) "Storm Sewer Improvements" means construction, upgrade and improvement of storm water detention, sewer and drainage facilities including storm sewer pipes, catch basins, ponds /basins, inlets and other appurtenances, together with stubs and extensions to accommodate connections for future building development, and 2 564006.00429.22955597.10 appurtenant work serving the Property or portions thereof, including without limitation: (i) modifications to existing storm water detention ponds within the Property to accommodate infiltration requirements and (ii) construction of storm sewer lines within the Ring Road, the North -South Road and other portions of the Property, with stubs and extensions to accommodate connections for future building development. (F) "Design Work" means all design, planning, permitting and engineering work, all as they relate to any or all of the Street Improvements, the Storm Sewer Improvements, the Street Lighting Improvements, the Water Distribution System Improvements or the Sanitary Sewer Improvements. (G) "Permit Fees" means all governmental permit and approval fees and costs, all as they relate to any or all of the Street Improvements, the Storm Sewer Improvements, the Street Lighting Improvements, the Water Distribution System Improvements or the Sanitary Sewer Improvements. (H) "Improvements" or "Petition Items" means, collectively: (i) the Street Improvements, the Storm Sewer Improvements, the Street Lighting Improvements, the Water Distribution System Improvements, and the Sanitary Sewer Improvements, all as more particularly described in plans and specifications therefor prepared by or on behalf of the City and approved by Developer and Rosemount as herein provided; (ii) the Design Work; (iii) payment of all costs and expenses of the Street Improvements, the Storm Sewer Improvements, the Street Lighting Improvements, the Water Distribution System Improvements, the Sanitary Sewer Improvements and the Design Work; and (iv) payment of the Permit Fees. 2. OWNERSHIP WARRANTY OF DEVELOPER. The Developer warrants and represents to the City as inducement to the City's entering into this Agreement, that Developer is the contract purchaser of the Property, and that the current owner and contract seller of the Property is Premier Bank, with an address of 1875 West Highway 36, Roseville, MN 55113. Rosemount warrants and represents to the City as an inducement to the City entering into this Agreement that Rosemount is the contract purchaser from Developer of that portion of the Property described as Lot 1, Block 1 and Outlot C on the Subdivision. The portion of the Property described as Lot 1 Block 1 and Outlot C on the Subdivision is sometimes hereinafter collectively referred to as the "Rosemount Property," and the portion of the Property described as Outlot A and Outlot B on the Subdivision is sometimes hereinafter collectively referred to as the "Developer Property." 3. DESIGNATION OF IMPROVEMENTS. The Improvements that the Developer has petitioned the City to install and finance on a cash and assessment basis, and which are more particularly described in Section 1 of this Agreement are sometimes hereinafter collectively referred to as the "Improvements" or the "Petition Items." 3 564006.00429.22955597.10 4. THE IMPROVEMENTS. The Developer has petitioned the City for the installation of the Improvements. The Improvements will be instituted, constructed and financed pursuant to M.S.A. 429 improvement projects as follows: (A) Construction Plan and Approval Thereof. The City will engage a duly licensed professional civil engineer authorized to practice within the State of Minnesota to prepare detailed plans, specifications, and a cost estimate for complete installation of all Improvements, in accordance with the most recent editions of the City Design Criteria and the City General Specifications and Standard Detail Plates For Street & Utility Construction and the SPUC Water Policy Manual and submit them to the City Engineer and to the SPUC Utilities Manager, when required. (B) Initiation. The Developer has submitted a petition (the "Petition "), a copy of which is attached hereto and made a part hereof as Exhibit B to this Agreement. (C) Construction. Prior to awarding any bids for construction of the Improvements, the City shall submit a copy of the plans and specifications to be included within the bids for construction of the Improvements to Developer and Rosemount, each of whom shall have the right to review the scope of work and the plans and specifications associated with the work, and to recommend modifications to the same to the City. The City agrees that the general construction contract for the construction of the Improvements shall be awarded to the lowest responsible bidder whose bid covers the entire scope of the work contemplated by the bids for construction of the Improvements. Any such bids as thereafter awarded by the City are sometimes hereinafter referred to as the "Approved Bids ". Prior to awarding any Approved Bids, the City shall submit a copy of all bids to the Developer and Rosemount for their review and comment. The City shall cause the Improvements to be constructed substantially in accordance with the plans and specifications therefor (based upon the Approved Bids). The City will include the construction schedule attached hereto and made a part hereof as Exhibit C ( "Construction Schedule ") in the plans and specifications. To that end, the City agrees to enter into a general construction contract ( "Contract ") with a bondable and licensed contractor ( "Contractor ") experienced in construction of improvements similar in type and quality to the Improvements, which Contract shall require the Contractor to complete the Improvements in a good and workmanlike and Tien -free manner in accordance with applicable laws and regulations by no later than the dates prescribed in the Construction Schedule. Each of Opus and Rosemount shall be a third party beneficiary of the Contract and shall have the independent right to enforce the same directly against the Contractor, including, without limitation, an action for specific performance, without the joinder or consent of any other party. The City shall use good faith efforts to cause the Improvements to be substantially completed by the dates set forth in the Construction Schedule, and the Contract shall require the Contractor to substantially complete the Improvements by such dates. Thereafter, the City shall diligently pursue final completion of all matters not fully completed or in need of repair as of such date, and the Contract shall require the Contractor to diligently pursue completion of all such matters. For purposes hereof "substantially complete" shall mean that the Improvements shall be 4 564006.00429.22955597.10 ready for beneficial use by the public for their intended purposes consistent with other public improvements of the City with only minor items of finish work to be completed (which such minor items do not interfere with the use and enjoyment of the Improvements) and at such time as the City's engineer has certified in writing that such items have been completed substantially in accordance with the plans and specifications therefor (based upon the Approved Bids) and in accordance with applicable laws and regulations, and the Contract shall so provide. The City shall keep Developer and Rosemount informed as to the progress of the construction of the Improvements. The City shall provide Developer and Rosemount reasonable access to the Property at all times during construction of the Improvements. Without limiting the generality of the foregoing, the City shall cause the Improvements to be staged to permit at all times vehicular access and traffic movements of substantially equivalent usefulness as the vehicular access and traffic movements contemplated by the fully engineered and constructed Improvements, including without limitation access and movement by eighteen (18) wheel semi - trailer trucks. If the City's contractor is not performing the work in a timely manner or otherwise not in accordance with the requirements set forth herein or in said contract, then the City shall diligently exercise its rights under the Contract to ensure that the work is timely completed. The City agrees to consult with the Developer and Rosemount in that process. (D) The City, Developer and Rosemount shall reasonably cooperate and work together to coordinate performance of the Improvement work and construction operations at the Property, including taking such actions to provide access as may be reasonably required to accommodate each party's critical path construction schedule. Without limiting the generality of the foregoing, in order to ensure that work proceeds efficiently at the Property, Developer, Rosemount and the City may from time to time develop reasonable agreed -upon procedures for coordination of all construction work. The City, Developer and Rosemount acknowledge that the Contract will be administered, in all respects, as other City improvements made pursuant to the provisions of M.S.A. Chapter 429 and other applicable statutes. Subject to the other provisions in this Agreement, the City will have sole responsibility for administration of the Improvements, and the City will not be responsible or liable to the Developer or Rosemount for any liability or damages arising out of, or in any manner associated with, the Improvements, including any time delays in the construction of the Improvements, regardless of whether such time delays arise out of actions by the City, by its consultants, or by Contractor or any of its subcontractors, provided the City has otherwise complied with the terms, covenants, conditions and agreements to be kept, performed and observed by the City pursuant to this Section 4. The City, Developer and Rosemount shall ensure that any architect, engineer, designer, contractor and workmen employed by the Developer, City or Rosemount is informed of and observes such procedures, and prior to commencement of any construction work makes appropriate arrangements with Developer, City or Rosemount, particularly with respect to: i. material handling and hoisting facilities; ii. material and equipment storage; iii. time and place of deliveries; 5 564006.00429.22955597.10 iv. hours of work and coordination of work; v. power, heating and washroom facilities; vi. scheduling; vii. security; and viii. clean up. (E) M.S.A. 429 Special Assessment Procedures. The City Council has approved the Petition Items and installation of the Improvements contemplated thereby, with the cost of the Improvements (excluding the Trail Improvements) to be assessed ( "Assessments ") against the Property; provided that: (i) the Assessments against the Developer Property shall not exceed $1,400,000 in the aggregate, and the assessments against the Rosemount Property shall not exceed $1,800,000 in the aggregate (collectively, the "Maximum Assessment Amounts "); (ii) to the extent the final costs of the Improvements are less than $3,200,000 in total, the resulting cost savings (i.e., the amount by which $3,200,000 exceeds the final costs) shall reduce the Maximum Assessment Amounts, such that the resulting cost savings shall be allocated forty -five percent (45 %) to the reduction of the Maximum Assessment Amount against the Developer Property and fifty -five percent (55 %) to the reduction of the Maximum Assessment Amount against the Rosemount Property. The City shall be solely responsible for all costs attributable to the Trail Improvements. Developer and Rosemount each agree to pay the Assessments allocable to each of the Developer Property and the Rosemount Property, as the case may be, on the following terms and conditions: (1) Waiver of Objections To and Right of Appeal from Assessments. Developer and Rosemount agree to, and do waive and release (a) any and all objections of every kind to the Assessments levied by the City pursuant to this Agreement, including, without limitation, objections to procedures and hearings before the City Council in connection with the Improvements and Assessments therefore, objections resulting from failure to fully comply with any applicable statute, and objections to the amount of the Assessments levied against the Property due to the Improvements stated; and (b) the right to appeal, pursuant to applicable Minnesota Statutes, from the Assessments levied pursuant to this Agreement. It is understood by Developer and Rosemount that the City is doing the Improvements at Developer's and Rosemount's request and for the parties' convenience, and the City would not be installing the Improvements without this waiver provided, that, nothing herein shall prevent Developer and /or Rosemount from objecting to the Assessments on the basis that the amount of Assessments has been calculated by the City in error. This waiver is valid up to Three Million Two Hundred Thousand and No /100 Dollars ($3,200,000.00), which is the estimated amount of the Assessments. The City, shall within thirty (30) days after the date of completion of the Improvements, notify Developer and Rosemount, in writing, of the actual cost of the Improvements, and the portion thereof allocable to each of the Developer Property and the Rosemount Property (subject to the Maximum Assessment Amounts) and substantiate the actual cost with evidence therefor reasonably acceptable to Developer and Rosemount. Developer and Rosemount shall have the right to review the books and records of the City to confirm such actual cost. If such review discloses that the actual cost thereof is more or less than the 6 564006.00429.22955597.10 amount claimed by the City or are in excess of the applicable Maximum Assessment Amounts, an appropriate adjustment shall be made with respect to the Assessments. (2) Construction. After approval of preliminary plans and estimates by the City Engineer and the SPUC Utilities Manager, an Improvement hearing will be called by the City Council for the purpose of ordering the Improvements. After approval of final plans and specifications by the City Engineer and the SPUC Utilities Manager, and approval by Developer, bids will be taken by the City and contracts awarded for the installation of the improvements under the City's and SPUC's complete supervision in accordance with the procedures outlined above. (3) Levy of Assessments and Required Prepayments. The entire cost of the installation of the Improvements, including any reasonable engineering, legal and administrative costs incurred by the City, must be paid by the Developer and Rosemount to the City as Assessments levied against the Property, subject to the conditions and limitations set forth herein. Reference herein to special assessments must be deemed to include, and must include, all interest due thereon in accordance with M.S.A. 429. (4) Recalculation of Assessments. The actual amount of the Assessments to be paid shall be subject to recalculation (in the manner set forth below) for the prepayment of any Assessments amounts (the City hereby agreeing that Developer or Rosemount may prepay the Assessments levied against the Developer Property or the Rosemount Property, as the case may be, in whole or in part, at any time and from time to time). Following any such repayment, the remaining Assessments with respect to the Developer Property or the Rosemount Property, as the case may be, shall be re- amortized at five percent (5 %) over the balance of the 10 -year term. Nothing in this Subparagraph (4) shall obligate Developer or Rosemount to pay an amount greater than the amount of Assessments or, if lesser, the Maximum Assessment Amounts allocable to the portion of the Property owned by Developer or Rosemount, as the case may be. (5) Acceleration Upon Default. If the Developer or Rosemount fails to pay, within thirty (30) days after delivery of written notice of such failure from the City, any installment of any Assessment levied pursuant to this Agreement that such party is obligated to pay, or any interest thereon, when it is to be paid by such party, the City at its option, in addition to its other rights and remedies under this Agreement, by written notice given to the party that has failed to make the required payment of the Assessments, may declare all of the unpaid Assessments due from such party that are then estimated or levied against the Developer Property or the Rosemount Property, as the case may be, due and payable in full, with interest. The City, at its option, may demand immediate payment. The City may immediately commence legal action against the party that has failed to make the required payment of the Assessments to collect the entire unpaid balance of the Assessments against the Developer Property or the Rosemount Property, as the case may be, with interest, including reasonable attorney's fees. (F) Easements. The Developer and Rosemount, as required, must grant or cause to be granted to the City, at no cost to the City, all permanent or temporary 7 564006.00429.22955597.10 easements necessary for the installation and maintenance of the Improvements, each in form and substance reasonably acceptable to the parties; provided, however, nothing herein contained shall require Developer or Rosemount to grant any additional right -of- way easements beyond the areas dedicated by the Subdivision. 5. GENERAL. (A) Violation of Provisions of Agreement. If the Developer or Rosemount violates any of the covenants in this Agreement to be performed by the Developer or Rosemount, as the case may be, then the City shall provide written notice specifying the violation to the violating party. Upon receipt of the notice of violation, the violating party shall have thirty (30) days to cure such violation, if it can be reasonably cured within thirty (30) days, or must commence curing the violation and complete curing the violation within a reasonable time thereafter, if the violation cannot be cured within thirty (30) days. Following notice and expiration of the cure period as provided above, the City has the option to commence an action for specific performance requiring the Developer or Rosemount, as the case may be, to comply with the covenants in this Agreement to be performed by Developer or Rosemount, as the case may be. The Developer and Rosemount agree that the City will be entitled to its administrative costs, legal costs, and reasonable attorney's fees in connection with any such action, provided the City is the prevailing party in such action. (B) Hold Harmless. The Developer or Rosemount on a several (and not joint) basis will defend, indemnify and hold harmless the City and its agents, officers and employees against any and all claims, damages, losses, and expenses, including attorney fees, arising out of or resulting from the enforcement of this Agreement against Developer or Rosemount, as the case may be, or in the construction of any improvements by Developer or Rosemount with respect to the Developer Property (as to Developer) or the Rosemount Property (as to Rosemount), as the case may be, except as might arise as a result of the negligence of the City, its agents, officers or its employees, provided with respect to any matter subject to the foregoing indemnity, the City shall tender defense of any such matter to Developer or Rosemount, as the case may be, in sufficient time to avoid prejudice to Developer or Rosemount, as the case may be, for handling by counsel selected by Developer or Rosemount, as the case may be, and reasonably acceptable to the City and, in no event, shall Developer or Rosemount, as the case may be, be liable for any special, incidental, punitive, or consequential damages. (C) Binding Effect. The terms and provisions hereof are binding upon and insure to the benefit of the representatives, successors and assigns of the parties and are binding upon all future owners of all or any part of the Subdivision and are deemed to be covenants running with the land. It is understood that Developer or Rosemount may transfer the portion of the Property owned by it, or part thereof, from time to time. Whenever a transfer occurs in the ownership of the Property, or part thereof, as aforesaid, the transferor shall have no further liability for breach of covenant occurring thereafter as to the portion of the Property which has been transferred, provided any such transferee shall assume the obligations of Developer or Rosemount as to the portion of the Property so 8 564006.00429.22955597.10 transferred. The City agrees to look solely to the interest of Developer and Rosemount in the Developer Property (as to Developer) and in the Rosemount Property (as to Rosemount), and to the security provided hereunder for the recovery of any judgment from Developer or Rosemount, as the case may be, it being agreed that neither Developer nor Rosemount nor their respective successors, partners, directors, officers, members, managers or shareholders shall ever be personally liable for any such judgment. This Agreement will be placed on record so as to give notice to subsequent purchasers and encumbrances of all or any part of the Subdivision and all recording fees must be paid by the Developer. (D) Notices. Any notices permitted or required to be given or made pursuant to this Agreement must be delivered personally, mailed by United States Mail by certified or registered mail or delivered by overnight courier, in each case to the addresses set forth below, or by facsimile. All notices shall be deemed given two (2) business days following deposit in the United States mail with respect to a certified or registered letter, one (1) business day following deposit with an overnight courier guaranteeing next business day delivery and on the same day if sent by personal delivery or facsimile (with proof of transmission). Attorneys for each party shall be authorized to give notices for such party. Any party may change its address for service of notice by giving written notice of such change to the other party, in the manners above specified. Addresses of the parties are as follows: If to the City: City Administrator City Hall 129 Holmes Street South Shakopee, MN 55379 If to Developer: Opus Development Company, L.L.C. 10350 Bren Road West Minnetonka, Minnesota 55343 Attn: Facsimile No.: with copies to: Opus Holding, L.L.C. 10350 Bren Road West Minnetonka, Minnesota 55343 Attn: Thomas J. Hoben - General Counsel Facsimile No.: (952) 238 -6734 and Daspin & Aument, LLP 227 West Monroe Street, Suite 3500 Chicago, Illinois 60606 Attn: D. Albert Daspin Facsimile No.: (312) 258 -1955 9 564006.00429.22955597.10 If to Rosemount: c/o Emerson Electric Co. 8000 West Florissant Avenue St. Louis, MO 63136 Attn: Stephen Clarke, Director Environmental Affairs and Real Estate Facsimile No.: (314) 553 -1365 with a copy to: Bryan Cave LLP One Metropolitan Square 211 North Broadway, Suite 3600 St. Louis, MO 63102 -2750 Attn: James G. Buell Facsimile No.: (314) 552 -8373 (E) Assignment. Developer and Rosemount may assign this Agreement without permission of the City only in conjunction with a sale of the Property, or any portion of the Property. No assignment will be effective unless the assignee assumes in writing all obligations of the Developer or Rosemount, as the case may be, under this Agreement and the documents related to it. The assumption must be in a form reasonably acceptable to the City. Following any such assignment and assumption, the assignor shall have no further liability for breach of covenant occurring thereafter as to the portion of the Property which is subject to the assignment and assumption. (F) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable by any court of competent jurisdiction, such holding must pertain only to such section and will not invalidate or render unenforceable any other section or provision of this Agreement. (G) Non - Waiver. Each right, power or remedy conferred upon the City, Developer or Rosemount by this Agreement is cumulative and in addition to every other right, power or remedy, express or implied, now or later arising, or available to the City, Developer or Rosemount, at law or in equity, or under any other agreement. Each and every right, power or remedy contained in this Agreement or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by the City, Developer or Rosemount, as the case may be, and does not constitute a waiver of the right to exercise at any time any other right, power or remedy. If either party waives in writing any default or nonperformance by the other party, the waiver is deemed to apply only to that event and does not waive any other prior or subsequent default. (H) Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be an original and must constitute one and the same Agreement. 10 564006.00429.22955597.10 (I) Coverage Ratios. The City agrees that Developer and Rosemount may include the square footage of any area burdened by any drainage and utility, conservation or trail easements, in calculating open space, floor area ratios, coverage ratios and the like in connection with applicable zoning or other governmental regulations including, without limitation, planned unit development standards, criteria, approvals and conditions. (J) Estoppel Certificates. The City agrees that it will, from time to time, upon request by Developer or Rosemount, execute and deliver to Developer or Rosemount, as the case may be, and to any parties designated by Developer or Rosemount, as the case may be, within ten (10) days following demand therefor, an estoppel certificate in a form reasonably acceptable to the parties, certifying (i) that this Agreement is unmodified and in full force and effect (or if there had been modifications, that the same is in full force and effect as so modified), (ii) that there are no defaults hereunder (or specifying any claimed defaults), and (iii) such other matters as may be reasonably requested by Developer or Rosemount, as the case may be. (K) Administration of Agreement. Whenever the consent or approval of the City (or any individual acting for and on behalf of the City) is required under this Agreement, such consent or approval shall not be unreasonably withheld, delayed or conditioned. The City, Developer and Rosemount shall act in good faith and in a reasonable manner with respect to any matter contemplated by this Agreement. (L) Further Assurances. The City, Developer and Rosemount each agree to do, execute, acknowledge and deliver any and all other reasonable documents and instruments and to take all such further reasonable action as shall be necessary or required in order to fully carry out this Agreement and to fully consummate and effect the transactions contemplated hereby. (M) Acquisition Contingency. Anything in this Agreement to the contrary notwithstanding, if Developer does not acquire the Property on or before October 31, 2013, then Developer shall notify City of the same, and at any time thereafter Developer or Rosemount may terminate this Agreement, in which event all of the covenants, conditions and agreements to be kept, performed and observed by Developer and Rosemount, as the case may be, pursuant to this Agreement shall be null and void and of no further force and effect, and Developer and Rosemount shall have no liability with respect thereto, except for Rosemount's obligation to reimburse the City in accordance with Paragraph 6 of the Petition. (N) Mortgagee Protection. Except with respect to the No Development Covenant (as hereinafter defined), the obligations of Developer and Rosemount, and their respective successors and assigns under this Agreement shall not be binding upon any mortgagee, ground lessor, sale - 11 564006.00429.22955597.10 leaseback lessor and /or trust deed holders or successor in interest to such party (collectively, "Mortgagee ") that acquire title to all or any portion of the Property by trustee's sale, foreclosure, or deed -in -lieu of foreclosure or otherwise, but any such Mortgagee or any subsequent transferee obtaining title to the Property, or any portion of it, from the Mortgagee shall not commence or proceed with any development or improvements of the Property, or any portion of it, unless and until the Mortgagee or transferee in title has agreed in writing to be bound by all the terms, covenants and conditions of this Agreement (the "No Development Covenant "). The City agrees to give any Mortgagee, by registered or certified mail, a copy of any notice of default served upon Developer or Rosemount, as the case may be, provided that prior to such notice the City has been notified, in writing (by way of written notice of Assignment of Rents and Leases sent to the City pursuant to the terms of this Agreement) of the address of such Mortgagee and such Mortgagee's request for notice pursuant to this provision. The City further agrees that, except in instances where there is an imminent likelihood that public health or safety would be materially and adversely affected by such default, if Developer or Rosemount, as the case may be, shall fail to cure such default within the time provided in this Agreement, then the Mortgagee shall have an additional thirty (30) days within which to cure such default or if such default cannot be cured within such 30 -day time period, then such additional time as may be necessary if within such 30 -day period, any Mortgagee has commenced and is diligently pursuing the remedies necessary to cure such default (including, without limitation, commencement of foreclosure proceedings, if necessary to effect such cure) and has provided written notice to the City of such commencement and pursuit, in which event this Agreement shall not be terminated nor shall the City exercise any rights or remedies hereunder while such remedies are being so diligently pursued. Developer and /or Rosemount may collaterally assign their respective interest in this Agreement in connection with any financing transaction. (0) Authority. Each of Developer and Rosemount hereby represents and warrants to the City that the performance by Developer and Rosemount, as the case may be, of this Agreement will not conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which the Developer and Rosemount, as the case may be, is a party or by which it is bound, or constitute a default under any of the foregoing. The City hereby represents and warrants to Developer and Rosemount that the performance by the City of this Agreement will not conflict with or result in a breach of any of the terms, conditions or provisions of any agreement or instrument to which the City is a party or by which it is bound, or constitute a default under any of the foregoing, or violate any law, order, writ, injunction or decree of any court, administrative agency or governmental body. 12 564006.00429.22955597.10 (P) Maintenance of Improvements. The City agrees, at its sole cost and expense, to operate, maintain, repair, renew and replace the Improvements consistent with other public improvements in the City. (Q) Approvals. The City agrees and acknowledges that all requisite consents, permits, approvals and the like with respect to the proposed development of the Property that are required to be obtained prior to the recording of the final plat of the Property have been obtained, and that there are currently no other obligations or liabilities with respect to the Property on Rosemount's or Developer's part to be kept, performed and observed that are not expressly set forth in this Agreement or in City Council Resolution No. 7323, which approves the preliminary and final plats for the Subdivision. There are no costs, fees, charges, assessments, contributions, sureties, bonds or the like which may be due and owing or required with respect to the Property other then as set forth in this Agreement; the Developer's application for Preliminary and Final Plat for the Subdivision, and City Council Resolution No. 7323, provided, however, nothing contained herein shall diminish the obligation or liability of any owner of any portion of the Property with respect to standard City charges and user fees such as SAC and WAC charges, City sewer connection charges, and building permit fees. Trunk water charges with respect to the Property total $46,499.90, and Rosemount shall be solely responsible for payment of such amount. (R) Force Maieure. Whenever a period of time if herein prescribed, for action to be taken by Developer, Rosemount or the City, then Developer, Rosemount or the City, as the case may be, shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time, any delays due to strikes, riots, acts of God, fire or other casualty, shortages of labor or materials, war, governmental loss, regulations or restrictions of any or any other causes of any kind whatsoever which are beyond the reasonable control of the parties, including without limitation, inclement climatic conditions and delays in the issuance of permits and approvals. 6. PAYMENTS TO THE PARK FUND IN LIEU OF LAND DEDICATION. In accordance with the authority provided by the Shakopee City Code, Section 12.34, Developer, Rosemount, and the City acknowledge that, consistent with the current City of Shakopee Fee Schedule, the park dedication fees attributable to Lot 1, Block 1 in the amount of $316,008.00 have been paid to the City. Park Dedication fees attributable to the remaining portion of the Property will be addressed when those portions of the Property are subsequently platted and developed. [Signature Page Follows] 13 564006.00429.22955597.10 IN WITNESS WHEREOF, The City and Developer have caused this Agreement to be duly executed as of the Effective Date. DEVELOPER: CITY: Opus Development Company, L.L.C., City of Shakopee a Delaware limited liability company By: By: Mayor Its: By: City Administrator By City Clerk ROSEMOUNT: Rosemount Inc., a Minnesota corporation By: Its: STATE OF MINNESOTA ) ss COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this day of , 20 , by , Mayor of the City of Shakopee, Minnesota, on behalf of the City. Notary Public My Commission Expires: 14 564006.00429.22955597.10 STATE OF MINNESOTA ) ss COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this day of 20 , by , City Administrator of the City of Shakopee, Minnesota, on behalf of the City. Notary Public My Commission Expires: STATE OF MINNESOTA ) ss COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this day of 20 , by , City Clerk of the City of Shakopee, Minnesota, on behalf of the City. Notary Public My Commission Expires: STATE OF MINNESOTA ) ) ss COUNTY OF The foregoing instrument was acknowledged before me this day of 20 , by , President of Opus Development Company, L.L.C., a Delaware limited liability company, on behalf of the limited liability company. Notary Public My Commission Expires: 15 564006.00429.22955597.10 STATE OF MINNESOTA ) ss COUNTY OF The foregoing instrument was acknowledged before me this day of 20 , by , the of Rosemount Inc., a Minnesota corporation, on behalf of the corporation. Notary Public My Commission Expires: This instrument was drafted by City of Shakopee 129 Holmes Street South Shakopee, MN 55379 16 564006.00429.22955597.10 EXHIBIT A Plat of Subdivision 17 564006.00429.22955597.10 EXHIBIT B CITY OF SHAKOPEE PETITION FOR PUBLIC IMPROVEMENTS AND WAIVER OF ASSESSMENT RIGHTS RECITALS A. Opus Development Company, L.L.C., a Delaware limited liability company ( "ODC "), and Rosemount Inc., a Minnesota corporation ( "Rosemount "), are each a contract purchaser of certain real property ( "Property ") legally described on Exhibit A attached hereto and made a part hereof. B. As part of the subdivision and platting process for the Property, Premier Bank, a Minnesota corporation ( "Premier "), will be dedicating right -of -way for Innovation Boulevard (formerly known as Valley Industrial Boulevard North and Broadband Boulevard) (collectively, the "Ring Road "), and a north -south roadway known as Innovation Drive (the "North -South Road ") running between various portions of the Ring Road, all which will be constructed as Street Improvements (as defined below) as part of the subdivision and platting process. C. As part of the subdivision and platting process for the Property, Premier will also be granting easements for the Sanitary Sewer Improvements, the Water Distribution System Improvements and the Storm Sewer Improvements (as each such term is defined below), all of which will be constructed, upgraded or improved as part of the subdivision and platting process. D. ODC and Rosemount desire that the City of Shakopee construct, install and otherwise undertake and complete the Improvements (as defined below) described in this Petition and assess the costs thereof against the Property. E. It is understood by ODC and Rosemount that the City will be doing the Improvements solely at the request and for the convenience of ODC and Rosemount and that the City would not be installing the Improvements described in this petition without this waiver. F. Each of ODC and Rosemount is voluntarily submitting this petition and understands that the City is relying on it as a condition of proceeding with the public improvements. NOW, THEREFORE, each of ODC and Rosemount agrees as follows: 18 564006.00429.22955597.10 1. ODC and Rosemount petition the City to install the following improvements and to assess them against the Property pursuant to Minnesota Statutes, Chapter 429 (collectively, the "Improvements "): (a) Construction of the Ring Road, from near the intersection of Valley Industrial Boulevard North and Valley Park Drive, through the Property and to near the intersection of Valley Industrial Boulevard South and Valley Park Drive, including without limitation: (i) removal of existing roadway alignment, and utilities previously installed, (ii) street and curb construction, turn lanes, storm water drainage and appurtenant work, including without limitation access points for connection to Quarry Lake Park; (iii) grading of the Ring Road to accommodate a bituminous trail from the Ring Road's intersection at Valley Park Drive to the southeast corner of the Property (the "Trail Improvements "); and (iv) undertaking of traffic and related studies to determine the desirability and feasibility for the potential future connection to the Ring Road of property to the west of and adjacent to the Property, and construction of all improvements relating to such future connection to the Ring Road (in addition to those improvements otherwise specifically enumerated in this clause (a)), including but not limited to any such improvements to be located outside of the Property. (b) Construction of the North -South Road, from the northern portion of the Ring Road through the Property to the southern portion of the Ring Road, including without limitation street and curb construction, turn lanes, storm water drainage and appurtenant work (the Improvements described in clause (a) and this clause (b) sometimes collectively referred to herein as the "Street Improvements "). (c) Construction and extension of sanitary sewer mains, pipes, and other appurtenances, together with stubs and extensions to accommodate connections for future building development, and appurtenant work serving the Property or portions thereof (collectively, the "Sanitary Sewer Improvements ") within the North -South Road and other portions of the Property from existing mains within or adjacent to the Ring Road. (d) Construction and extension of all watermain pipes, valves, fire hydrants, and other appurtenances, together with stubs and extensions to accommodate connections for future building development, and appurtenant work serving the Property or portions thereof (collectively, the "Water Distribution System Improvements ") within the North -South Road and other portions of the Property from existing mains within or adjacent to the Ring Road. (e) Construction, upgrade and improvement of storm water detention, sewer and drainage facilities including storm sewer pipes, catch basins, ponds /basins, inlets and other appurtenances, together with stubs and extensions to accommodate connections for future building development, and appurtenant work serving the Property or portions thereof (collectively, "Storm Sewer Improvements "), including without limitation: (i) modifications to existing storm water detention ponds within the Property to accommodate infiltration 19 564006.00429.22955597.10 requirements and (ii) construction of storm sewer lines within the Ring Road, the North -South Road and other portions of the Property, with stubs and extensions to accommodate connections for future building development. (f) Furnishing and installation of all street lighting including poles, arms, lamps, fixtures, conduit, underground wiring, transformers, pedestals and any other appurtenant street lighting facilities (collectively, "Street Lighting Improvements "), with respect to the North -South Road and the Ring Road, from near the intersection of Valley Industrial Boulevard North and Valley Park Drive, through the Property and to near the intersection of Valley Industrial Boulevard South and Valley Park Drive. (g) Undertaking all design, planning, permitting and engineering work, and payment of all governmental permit and approval fees and costs, all as they relate to any or all of the work described in clauses (a), (b), (c), (d), (e) and (f) above. 2. Each of ODC and Rosemount represents and warrants that it is a contract purchaser of all or a portion of the Property and that it has the full legal authority and power to execute this Petition. 3. ODC and Rosemount request that the cost of the Improvements other than the Trail Improvements (the "Project Costs ") be assessed against the Property over a ten (10) year period. The City shall be solely responsible for all costs attributable to the Trail Improvements. The current estimated amount of the assessments is $3,200,000.00. Each of ODC and Rosemount understands that the exact amount of the assessments cannot be determined at the present time, and understands that the final assessment and interest rate payable with respect to the assessment will be determined in accordance with the City's adopted assessment policy; provided that: (a) the assessments against the portions of the Property to be owned by ODC (the "ODC Property ") shall not exceed $1,400,000 in the aggregate, and the assessments against the portions of the Property to be owned by Rosemount (the "Rosemount Property ") shall not exceed $1,800,000 in the aggregate (collectively, the "Maximum Assessment Amounts "); (b) to the extent the final Project Costs are less than $3,200,000 in total, the resulting Project Costs savings (i.e., the amount by which $3,200,000 exceeds the final Project Costs) shall reduce the Maximum Assessment Amounts, such that the resulting Project Cost savings shall be allocated forty -five percent (45 %) to the reduction of the Maximum Assessment Amount against the ODC Property and fifty -five percent (55 %) to the reduction of the Maximum Assessment Amount against the Rosemount Property; and (c) such interest rate shall in no event exceed five percent (5 %) per annum. ODC and Rosemount understand that the waivers contained in this Petition are effective for the current estimated amount of the assessments and for any increases that are the result of requests made by ODC and Rosemount or any increases that are otherwise approved in writing by each of ODC and Rosemount. In no event shall any sureties, letters of credit, performance bonds or other financial security be 20 564006.00429.22955597.10 required from either ODC or Rosemount with respect to the Improvements or either party's obligations under this Petition. 4. Each of ODC and Rosemount waives notice of hearing and hearing pursuant to Minnesota Statutes 429.031 on the Improvements and notice of hearing and hearing on the special assessments to be levied to finance the Improvements pursuant to Minnesota Statutes 429.061 and specifically requests that the Improvements be constructed and special assessments be levied without hearing against the Property. 5. Each of ODC and Rosemount waives all right to appeal or otherwise contest or challenge the levy of the special assessments to be levied to finance the Improvements, including but not limited to the right to challenge whether the increase in fair market value resulting from the construction of the Improvements is at least equal to the amount of the Project Cost that is assessed against the Property and that such increase in fair market value is a special benefit to such parcel. Each of ODC and Rosemount further agrees that any requirements of Minnesota Statutes, Chapter 429 are waived to the extent that such requirements are not met. 6. If Rosemount withdraws this request for the City to construct the Improvements at any time before the City orders the Improvements, then Rosemount shall reimburse the City for all reasonable, out -of- pocket costs incurred in connection with the design of the Improvements, including but not limited to reasonable engineering, legal and administrative costs, incurred by the City as of the date of the withdrawal, which reimbursement shall not exceed, in the aggregate, the sum of $175,000. In no event shall Opus be liable for any such Project Costs pursuant to this Paragraph 6. 7. The covenants, waivers and agreements contained herein shall run with the Property following the satisfaction (if any) of the Acquisition Contingency (as defined below) and shall bind the heirs, successors and assigns of each of ODC and Rosemount. It is the intent of the City, ODC and Rosemount that this document be recorded against the Property as a part of the land records of Scott County, Minnesota following the satisfaction (if any) of the Acquisition Contingency. 8. The rights, obligations and liabilities of each of ODC and Rosemount hereunder are conditioned upon the acquisition (the "Acquisition Contingency ") by each of ODC and Rosemount (or their respective affiliates) of their respective portions of the Property by October 31, 2013 (the "Outside Date "). If the Acquisition Contingency fails to be satisfied, and either ODC or Rosemount (or their respective affiliates) fails to acquire its respective portion of the Property, by the Outside Date, then this Petition shall be deemed null and void and of no further force or effect, and thereafter none of ODC, Rosemount and the City shall have any further rights, obligations or liabilities hereunder except for Rosemont's obligation to reimburse the City for certain costs as set forth in Paragraph 6 above. If the Acquisition Contingency shall be satisfied by the Outside Date, 21 564006.00429.22955597.10 then the terms and conditions set forth in this Petition shall terminate upon the final payment of all special assessments levied against the Property regarding the Improvements, and the City shall execute and deliver such documents, in recordable form, as are necessary to extinguish its rights contained herein upon receipt of such final payment. 22 564006.00429.22955597.10 Dated this day of , 2013. Opus Development Company, L.L.C. By Its STATE OF MINNESOTA ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2013, by the of Opus Development Company, L.L.C., a Delaware limited liability company, on behalf of the limited liability company. Notary Public My Commission Expires 23 564006.00429.22955597.10 Rosemount Inc. By Its STATE OF MINNESOTA ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2013, by the of Rosemount Inc., a Minnesota corporation, on behalf of the corporation. Notary Public My Commission Expires Drafted by: Kennedy & Graven ( ) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 24 564006.00429.22955597.10 EXHIBIT A LEGAL DESCRIPTION Scott County, Minnesota PID No. 27- 9030040: All that part of the Southeast Quarter of Section 3, Township 115, Range 22, lying Southerly of the Chicago, St. Paul, Minneapolis and Omaha Railroad Right of Way, Excepting therefrom that part of the West 200.00 feet, as measured at right angles to the West line thereof of the Southeast Quarter of Section 3, Township 115, Range 22, lying Southerly of the Southeasterly extension of the Northeasterly line of Lot 1, Block 5, Valley Park First Addition, and lying Northerly of the Easterly extension of the Southerly line of Lot 3, Block 5, Valley Park First Addition, according to the plat thereof on file and of record in the office of the Registrar of Titles, Scott County, Minnesota. (Abstract Property) together with a non - exclusive driveway easement over and across Outlot E, Valley Park First Addition, according to the plat thereof on file and of record in the office of the Registrar of Titles, Scott County, Minnesota, as created in Easement Agreement dated February 6, 1987, filed February 17, 1987 as Document No. 37539. (Torrens Property) Scott County, Minnesota PID No. 27- 9100020: That part of the North 824.00 feet (as measured at right angle to the North line) of the Northeast Quarter of Section 10, Township 115, Range 22, Scott County, Minnesota, lying North and East of the South 488.00 feet of the West 179.95 feet of said North 824.00 feet, Except that plat of Valley Park Thirteenth Addition, Scott County, Minnesota. (Torrens Property) Scott County, Minnesota PID No. 27- 0550091: That part of Lot 4, Block 5, Valley Park First Addition, according to the recorded plat thereof and situate in Scott County, Minnesota, Tying South of the North line of Section 10, Township 115 North, Range 22 West of the Fifth Principal Meridian. AND That part of Research Boulevard, vacated, Valley Park First Addition, Scott County, Minnesota, lying Easterly of the following described line: Commencing at the Northwest corner of said Lot 4; thence South 00 degrees 57 minutes 28 seconds East along the West line of said Lot 4, a distance of 350.00 feet to the point of beginning of the line to be described; thence continuing South 00 degrees 57 minutes 28 seconds east to the South line of Research Boulevard and there terminating. (Torrens Property) 25 564006.00429.22955597.10 EXHIBIT C Construction Schedule Council Approves Extension Agreement and Authorizes Design June 18, 2013 Commence Final Design Work June 19, 2013 Submit Plans and Authorize Bids July 12, 2013 Approve Plans and Authorize Bids July 16, 2013 Open Bids August 16, 2013 Award Contract August 20, 2013 Begin Construction August 26, 2013 South Road Open to Traffic/Paved October 15, 2013 Pave Bituminous Base Course, Water Main and Sanitary Sewer in Service November 1, 2013 Substantially Complete Construction - North Ring Road and balance of the Improvements June 1, 2014 Final Wearing Course /Complete Construction June 20, 2014 26 564006.00429.22955597.10