CR2003-065 purchase agree-rosewood west ROW
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April 15, 2003
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Council Report 2003-065 ,
HOPKINS
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Approve Purchase Agreement, Rosewood West L.L.C.
2003 Street and Utility Improvement Project, City Project 02-10
Proposed Action
Staff recommends adoption of the following motion: Move that Council approve the attached
purchase aQreement with Rosewood West L.L.C. for the acquisition of RiQht of Way required for the
2003 Street and Utilitv Improvement Proiect. City Proiect 02-10
Overview
The 2003 Street and Utility Improvement project includes work on Fifth Avenue from State Trunk
Highway 7 to 3rd Street South. The portion between State Trunk Highway 7 and the driveway
entrance to the Rosewood apartments will be widened in order to provide sidewalks on both the East
and West side of the road. Additionally better lane definition will be established to provide a
southbound right turn lane into the Rosewood Apartments and a south bound through lane. In order
construct these components 10 feet of additional Right of Way and 20 feet of temporary construction
Aasement is needed. Staff has discussed a purchase with the property owner who is willing sign
~ased on the terms detailed in the attached purchase agreement.
Primary Issues to Consider
· Need to obtain Right of Way
· Value of Right of Way Acquisition and Temporary Easement
· Recommendation
Supporting Information
. Easement Exhibit
. Construction Plan
. Purchase Agreement
~~
.ohn . Anderson P.E., Assistant City Engineer
Financial Impact: .$ 25,584.00
Related Documents (CIP, ERP, etc.):
Budgeted: Y/N N/A Source: PIR
. CIP Notes:
City Council Report 2003-065
Page 2
. Need to obtain Right of Way
In order to construct the two southbound lanes (one through lane and one right turn into the
Rosewood apartments) and the sidewalk on the west side of Fifth Avenue the additional Right of
Way width is required. The addition of a dimensionally standard right turn lane is needed to
minimize the potential for right turning southbound traffic to backup southbound traffic onto S.T.H.
7. The sidewalk is being constructed in order to relocate the mid block pedestrian crossing at
Wayside Drive to the south side of State Trunk Highway 7. The area to be obtained for Right of
Way is the minimum needed to cover the proposed improvements. The proposed additional
Right of Way is 10 feet wide and 328 feet long for a total of 3280 square feet of area. The
proposed temporary easement is 20 feet wide and approximately 341 feet long and has an area
of 6820 square feet.
. Value of Right of Way Acquisition and Temporary Easement
The real estate land value was determined by taking the total parcel land value ($1,069,000)
dividing it by the total parcel area (170,755 square feet) to obtain $6.26 per square foot as the
rate. The rate was then multiplied by the area of the right of way (3280 sq ft.) to be acquired for a
product of $20,532.80. The value of the temporary easement was calculated by using 10% of the
per square foot cost (0.626 $ per sq. ft.) as the yearly rate times one half a year, times the area of
the temporary easement (6820 sq. ft.) for a product of $2,134.66. The total cost is the sum the
Right of Way and the temporary easement or $22,667.46
.
The property has been assessed $25,584.00 for this project. The purchase agreement that has
been negotiated with Rosewood L.L.C. is basically a trade of the right of way and temporary
easement for the amount of the assessment.
. Recommendation
Staff recommends approval of the attached purchase agreement with Rosewood L.L.C. for Right
of Way and temporary easement needed for the 2003 Street and Utility Improvement Project, City
project No. 02-10.
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Draft 3/26/03
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of , 2003,
between Rosewood West, L.L.C., a Minnesota limited liability company ("Seller") and the City of Hopkins, a
municipal corporation under the laws of Minnesota ("Buyer").
In consideration of the terms covenants and conditions of this Agreement, Seller and Buyer agree as
follows:
1. Sale of Property. Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller real property
("Real Property") located in Hennepin County, Minnesota, legally described as follows:
See Exhibit A attached hereto and incorporated herein for legal description of Real Property.
2. Purchase Price and Manner of Payment. The total purchase price ("Purchase Price") to be
paid by Buyer to Seller for the Real Property shall be $25,584.00, payable as follows: As part of City of Hopkins
Project No. 02-10 for the reconstruction of Fifth Avenue (the "Public Improvement Project"), Buyer has notified
Seller of a pending special assessment in the amount of $25,584.00 (the "Pending Assessment") that Buyer will levy
against the larger parcel of real property owned by Seller and legally described in Exhibit B attached hereto
("Seller's Property"). At closing, and upon Seller's performance of its obligations under this Agreement, the
Purchase Price shall be paid by Buyer waiving and agreeing to forgive all of the Pending Assessment. If the actual
amount of the final special assessment to be levied against Seller's Property for the Public Improvement Project
exceeds or is less than the Pending Assessment, the Purchase Price shall be adjusted to equal the actual amount of
such final special assessment so that the Purchase Price shall be fully paid as a result of Buyer waiving and agreeing
to forgive all of the final special assessment amount that would otherwise have been levied against Seller's property
as a result of the Public Improvement Project.
3. Continl!encies. The obligations of Buyer under this Agreement are subject to and contingent
upon each of the following contingencies:
(a) Representations and Warranties. The representations and warranties of Seller contained in this
Agreement must be true on the date of this Agreement and on the Closing Date as if made on the
Closing Date.
(b) Title. Title shall have been found acceptable as of the Closing Date, or been made acceptable, in
accordance with the requirements and terms of Section 6 of this Agreement.
(c) Performance of Seller's Oblil!ations. Seller shall have performed all of the obligations required
to be performed by Seller under this Agreement, as and when required by this Agreement.
(d) Buyer's Inspection. Seller shall allow Buyer, and Buyer's engineers, surveyors, consultants and
employees, access to the Real Property without charge at all reasonable times for the purpose of
Buyer's investigation and testing, which may include an environmental assessment. Buyer shall
pay all costs and expenses of such investigation and testing and shall hold Seller and the Real
Property harmless from all costs and liabilities associated with Buyer's investigation and testing.
On or before the Closing Date, Buyer shall have determined that all matters disclosed by Buyer's
inspection and testing are acceptable to Buyer, at Buyer's sole discretion.
If any of the above contingencies have not been satisfied on or before the Closing Date, then this Agreement may be
terminated, at Buyer's option, by written notice from Buyer to Seller. Such notice of termination may be given at
any time on or before the Closing Date. Upon such termination, this Agreement shall be null and void and neither
party will have any further rights or obligations regarding this Agreement or the Real Property. If Buyer fails to
give such notice of termination, Buyer shall be conclusively deemed to have waived the contingencies, and this
Agreement shall remain in effect. All the contingencies set forth in this Agreement are specifically stated and
c: hopciv\purchaseagt Rosewood
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agreed to be for the sole and exclusive benefit of the Buyer and the Buyer shall have the right to unilaterally waive
any contingency.
4. Closinl!. The closing of the purchase and sale described in this Agreement (the "Closing") shall
occur on day April_, 2003 (the "Closing Date"), provided that Buyer shall be entitled to advance the Closing
Date to an earlier date upon five (5) business days' written notice to Seller. The Closing shall take place at the
offices of Buyer's attorneys at such other location as shall be mutually agreed to. Seller agrees to deliver possession
of the Real Property to Buyer on the Closing Date.
A. Seller's Closine Documents. On the Closing Date, Seller shall execute and/or deliver to Buyer
the following (collectively, "Seller's Closing Documents"):
(1) Quit Claim Deed. A Quit Claim Deed ("Quit Claim Deed") conveying the Real Property to
Buyer, free and clear of all encumbrances, except the Pennitted Encumbrances hereinafter
defined.
(2) Seller's Affidavit. An Affidavit of Seller in the Minnesota Uniform Conveyancing Blanks fonn.
(3) FIRPTA Affidavit. A non-foreign affidavit, properly executed and in recordable form,
containing such information as is required by IRC Section I 445(b)(2) and its regulations.
(4) Other Documents. Such other documents as shall reasonably be required to carry out the intent
of this Agreement. .
B. Buver's Closinl! Documents. On the Closing Date, Buyer will execute and/or deliver to Seller
the following (collectively, "Buyer's Closing Documents"):
(1)
Purchase Price. Buyer shall pay the Purchase Price to Seller in the manner required by Section 2
of this Agreement. The waiver and forgiveness of the Pending Assessment shall be evidenced by a
written Waiver of Pending Special Assessment in form and content reasonably acceptable to
Seller.
(2)
Other Documents. Such other documents as shall reasonably be required to carry out the intent
of this Agreement.
5.
this Agreement:
Prorations. Seller and Buyer agree to the following prorations and allocation of costs regarding
(a)
Real Estate Taxes and Special Assessments. Real estate taxes and installments of special
assessments payable therewith payable in 2002 and all prior years will be paid by Seller. Further,
Seller and Buyer agree that no part of the real estate taxes or installments of special assessments
due and payable in the year 2003 with respect to Seller's Property shall be allocated to the Real
Property and that Seller shall pay all real estate taxes and installments of special assessments
payable therewith in 2003.
(b)
Recordine Costs. Buyer will pay the State Deed Tax and the cost of recording the Quit Claim
Deed transferring the Real Property to Buyer. Seller will pay the cost of recording all documents
necessary to place record title in the condition warranted by Seller in this Agreement.
(c)
(d)
Attornevs' Fees. Each of the parties will pay its own attorneys' fees.
Title Insurance and Closinl! Fees. Buyer will pay all costs of obtaining the Title Evidence
(defined in Section 6 of this Agreement) and the premium for issuance of any title insurance
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policy obtained by Buyer. Buyer shall also pay any closing fees or charges of Buyer's attorneys
or the title insurance company designated by Buyer.
6.
Title Examination. Title examination will be conducted as follows:
(a)
Title Evidence. As promptly as possible, after the date of this Agreement, Seller shall obtain, at
Seller's option, either a current Registered Property Abstract or a commitment for an ALTA Form
B Owners' Policy of Title Insurance (said Registered Property Abstract or commitment being
herein referred to as the "Title Evidence") covering Seller's Property issued by a title insurance
company designated by Buyer.
(b)
Buver's Obiections. Within ten (10) business days after Buyer has obtained the Title Evidence,
Buyer will make written objections ("Objections") to any matter disclosed in the Title Evidence
that makes title to the Real Property unmarketable. Buyer's failure to make Objections within
such time period will constitute waiver of Objections. Any matter shown on the Title Evidence
and not objected to by Buyer shall be a "Permitted Encumbrance" hereunder. Seller will have
thirty (30) days after receipt of the Objections to cure the Objections, during which period the
closing will be postponed as necessary. Seller shall use commercially-reasonable efforts to correct
any Objections. Such commercially-reasonable efforts by Seller shall include obtaining the
release of the Real Property from any mortgage or other monetary lien encumbering Seller's
Property. If the Objections are not cured within such thirty-day (30) period, Buyer will have the
option to do any of the following:
i) Terminate this Agreement by written notice to Seller. Upon such termination, neither
party shall have any obligation to the other under this Agreement.
ii) Waive the Objections and proceed to close.
7.
Representations and Warranties by Seller. Seller represents and warrants to Buyer as follows:
(a) Title to Real Property. Seller has or shall on the Closing Date have good and marketable title to
the Real Property, free and clear of all encumbrances, subject to the provisions of Section 6 of this
Agreement.
(b) Leases. There shall, on the Closing Date, be no leases or possessory rights of others affecting the
Real Property.
(c) Water Wells. To the best of Seller's knowledge, no water wells exist on or under the Real
Property .
(d) Ril!hts of Others to Purchase Real Property. Seller has not entered into any other contracts for
the sale of the Real Property, nor to the best knowledge of Seller are there any rights of first
refusal or options to purchase the Real Property or any other rights of others that might prevent the
consummation of this Agreement.
(e) FIRPTA. Seller is not a "foreign person". "foreign partnership", "foreign trust" or "foreign
estate" as those terms are defined in Section ]445 of the Internal Revenue Code.
(f) Authoritv. Seller represents that Seller has the authority to enter into this Agreement, and that the
party executing this Agreement on Seller's behalf has the requisite authority to do so and bind
Seller to its obligations under this Agreement.
Except as herein expressly stated, Buyer is purchasing the Real Property based upon its own investigation and
inquiry and is not relying on any representation of Seller or any Agent or Representative of Seller, and Buyer agrees
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to accept and purchase the Real Property "as is and where is" subject only to the express warranties herein
contained.
8. Removal of Personal Property and Debris. [Intentionally Omitted].
9. Condemnation. [Intentionally Omitted].
10. Broker's Commission. Seller and Buyer represent and warrant to each other that they have dealt
with no brokers, finders or the like in connection with this transaction and agree to indemnify each other and to hold
each other harmless against all claims, damages, costs or expenses of or for any such fees or commissions resulting
from their actions or agreements regarding the execution or performance of this Agreement, and will pay all costs of
defending any action or lawsuit brought to recover any such fees or commissions incurred by the other party,
including reasonable attorneys' fees.
11. Assie:nment. Buyer may not assign its rights under this Agreement without Seller's prior written
approval, which shall not be unreasonably withheld or delayed.
12. Notices. Any notice, request or other communication required or provided to be given under this
Agreement shall be in writing and shall be deemed to be duly given when delivered personally or when mailed by
first class United States mail, postage prepaid, addressed as follows:
To Seller:
Rosewood West LLC
Attention: Jan Susee
6625 Lyndale A venue South
Richfield, MN 55423
To Buyer:
City of Hopkins
Attention: Mr. John Anderson
1010 First Street South
Hopkins, MN 55343
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With a Copy to be mailed
simultaneously to:
Jeremy S. Steiner
Miller, Steiner & Curtiss, P.A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, Minnesota 55343
or to such other address as either party, by notice given as herein provided, shall designate. Mailed notice shall be
conclusively deemed to have been given two (2) business days after the date of mailing.
13. Captions. The paragraph headings or captions appearing in this Agreement are for convenience
only, are not a part of this Agreement and are not to be considered in interpreting this Agreement.
14. Entire Al!reement: Modification. This written Agreement constitutes the complete agreement
between the parties and supersedes any prior oral or written agreements between the parties regarding the Real
Property. There are no verbal agreements that change this Agreement and no waiver or modification of any of its
terms will be effective unless in a writing executed by the parties.
15. Bindinl! Effect. This Agreement binds and benefits the parties and their successors and assigns.
16. Controllinl! Law. This Agreement has been made under the laws of the State of Minnesota, and
such laws will control its interpretation.
17. Default bv Seller. If Seller fails and refuses to perform its obligations under this Agreement and
such failure to perform continues for a period of ten (10) days after Buyer notifies Seller, in writing, of such
nonperformance, Buyer may, at its option, elect one of the following remedies:
(a) To terminate this Agreement by written notice to Seller whereupon this Agreement shall become
null and void and neither party shall have any further rights or obligations hereunder; or
(b) To enforce specific performance of Seller's obligations under this Agreement, including
specifically the conveyance of the Real Property in the condition required in this Agreement. In
the event of such a proceeding for specific performance, the prevailing party in such proceeding
shall be entitled to be awarded its reasonable attorneys' fees, costs and disbursements.
18. Default bv Buver. If Buyer defaults under this Agreement, Seller shall have the right to terminate
this Agreement by giving written notice to Buyer in accordance with Minn. Stat. 559.21. If Buyer fails to cure such
default within thirty (30) days of the date of service of such notice in accordance with Minn. Stat. 559.21, this
Agreement will terminate and neither party shall have any further rights or obligations under this Agreement. This
provision shall not preclude Seller from seeking to obtain specific performance of this Agreement. In the event of
such a proceeding for specific performance, the prevailing party in such proceeding shall be entitled to be awarded
its reasonable attorney's fees, costs and disbursements.
19. Subdivision Approval. Buyer shall be solely responsible for obtaining any required
governmental approvals for the subdivision of the Real Property from Seller's Property, all at Buyer's sole costs and
expense.
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20. Tax Prepayment or Temporarv Easement. If it is necessary to prepay the real estate taxes and
installments of special assessments for Seller's Property due and payable in the year of closing in order to record the
Quit Claim Deed transferring the Real Property to Buyer because the Real Property is being subdivided from
Seller's Property, Seller, at Seller's sole option, shall either prepay such real estate taxes and installments of special
assessments or, in addition to executing and delivering the Quit Claim Deed, grant Buyer a temporary easement for
construction and road right-of-way purposes over the Real Property, which temporary easement shall remain in
effect until the Quit Claim Deed is recorded, and which shall grant Buyer the exclusive right to use the Real
Property for road right of way, utilities, construction and related purposes. Such temporary easement shall be
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granted by a Quit Claim Deed duly executed and delivered by Seller, at closing, in form and content reasonably
acceptable to Buyer.
21. Restoration of Seller's Property. Upon completion of the improvements to Fifth Avenue by
Buyer, Buyer shall restore any damage to Seller's Property caused by such construction by completing the following
work:
All ditch slopes and disturbed areas shall be graded to match sidewalk. All disturbed areas shall
be sodded.
22. Involuntary Takinl!. Buyer represents that in the event Buyer had been unsuccessful in
negotiating the purchase of the Real Property, Buyer had decided to authorize the commencement of eminent
domain proceedings and to exercise its powers of eminent domain to acquire the Real Property. Buyer and Seller
intend that this Agreement is in lieu of the institution of formal eminent domain proceedings. Further, Buyer
acknowledges and agrees Buyer has voluntarily entered into this Agreement with the advice of legal counsel, that
Buyer is fully aware of its rights and remedies in the event eminent domain proceedings had been instituted and
hereby waives all such rights and remedies.
23. Ril!ht of Entry. Seller hereby grants to Buyer and Buyer's agents the right of entry and access to
the Real Property, commencing on the date of this Agreement and continuing until the Closing Date, for the purpose
of entering upon the Real Property and performing all work and construction activities thereon as necessary for the
Public Improvement Project.
24. Waiver of Obiection to Pendinl! Assessment. Seller acknowledges and agrees Seller's Property
shall receive a benefit from the Public Improvement Project of a value equal or greater to the amount of the Pending
Assessment of $25,584.00. Therefore, and subject to the provisions of Paragraph 2 of this Agreement (including
Buyer's agreement to forgive the Pending Assessment), Buyer agrees Seller is entitled to levy a special assessment
against Seller's Property in this amount for the Public Improvement Project in accordance with Minn. Stat. Chapter
429, and Seller waives all objections to or appeals of the final amount of such special assessment to be levied against
Seller's Property. Seller shall, however, be entitled to continue to receive all notices from Buyer related to such
special assessment for the Public Improvement Project.
Seller and Buyer have executed this Agreement effective as of the date first written above.
Dated:
ROSEWOOD WEST, LLC.
By
Its
Dated:
CITY OF HOPKINS
By
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EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
The West 10 feet of the East 43 feet of the north 1,066.9 feet of the Northeast Quarter of the
Northwest Quarter of Section 24, Township 117 North, Range 22 West, lying South of State
Highway No.7, Hennepin County, Minnesota.
A temporary easement for construction purposes over, under and across all that part of the West
20 feet of the East 63 feet of the North 1,066.9 feet of the Northeast Quarter of the Northwest
Quarter of Section 24, Township 117 North, Range 22 West, lying South of State Highway No.7,
Hennepin County, Minnesota. Said temporary construction easement shall terminate on
December 31, 2003.
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EXHIBIT B
LEGAL DESCRIPTION OF SELLER'S PROPERTY
All that part of the following described tract of land lying South of the center line of State
Highway No.7; That part of the West Y2 of the Northeast Quarter of Section 24, Township 117,
Range 22 described as follows to-wit: Beginning at the Northeast comer of the Northwest Quarter
of the Northeast Quarter, Section 24, Township 117, Range 22, thence South 1066.9 feet; thence
West 486.87 feet; thence North parallel with East line of the Northwest Quarter of Northeast
Quarter, 1066.9 feet to the North line of Section 24, Township 117, Range 22, thence East 486.87
feet to place of beginning, Hennepin County, Minnesota.
9
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