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2002-04-30 Agreement Concerning Escrow For Traffic SignsFABYANSKE, WESTRA & HART A PROFESSIONAL ASSOCIATION B.C. HART M.T. FABYANSKE MARK W. WESTRA JEREMIAH J. KEARNEY DENNIS J. TROOIEN SCOTT LLOYD ANDERSON PAULL.RATELLE GREGORY T. SPALJ DEAN B. THOMSON GARY C. EIDSON KYLE E. HART JUDITH E. KROW STEPHEN A. MELCHER RICHARD G. JENSEN THOMAS J. TUCCI CHARLES G. CARPENTER, III VIA U.S. MAIL Ann S. Hoffrneyer Commercial Partners Title, LLC 330 Second Avenue South Suite 820 Minneapolis, MN 55401 SUITE 1100 920 SECOND AVENUE SOUTH MINNEAPOLIS, MINNESOTA 55402 TELEPHONE 612-338-0115 FAX 612-338-3857 Re: Albertville Crossing Our File No.: 80558-019 Dear Ms. Hoff neyer and Mr. Couri: May 2, 2002 VIA U.S. MAIL Mr. Michael C. Couri Radzwill Law Office 705 Central Avenue E St. Michael, MN 55376 Enclosed please find one original Escrow Agreement for Traffic Signals. Please call with any comments or questions. Very truly yours, I Patrick R. Rohland PRR/lms Enclosure CHRISTOPHER P. CHILSTROM JOCELYN L. KNOLL STEVEN C. COX JULIE A. DOHERTY AARON A. DEAN SCOTT A. JOHNSON OYANNA L. STREET PATRICK J. LEE-O'HALLORAN DANIEL J. MCGARRY FREDERICK H. LADNER MICHAEL W. DVORAK TOWLE H. NEU PATRICK R. ROHLAND NATHAN E. RAY THERESA A. PETERSON THEODORE V. ROBERTS OF COUNSEL: GORDON P. HEINSON JAYNE E. GARDNER RENEE K. ZIRBES N:\PL\PRR\ 185554.doc AGREEMENT CONCERNING ESCROW FOR TRAFFIC SIGNAL THIS AGREEMENT CONCERNING ESCROW FOR TRAFFIC SIGNAL is made as of the 3o day of April, 2002, by and between the City of Albertville, a Minnesota municipal corporation (hereinafter referred to as "City"), KTJ Limited Partnership Seventy -Four, a Minnesota limited partnership (hereinafter referred to as the "Partnership") and Commercial Partners Title, LLC, a Minnesota limited liability company (hereinafter referred to as the "Escrow Agent"). RECITALS WHEREAS, Cascade II Land Co., LLC, a Minnesota limited liability company ("Cascade") is the owner of legal or equitable title to that certain real property consisting of approximately 11.55 acres of land in the City of Albertville, Minnesota, that is legally described as Lots 1, 2 and 3, Block 1, Albertville Crossing, Wright County, Minnesota (collectively, the "Phase One Parcels"); WHEREAS, Partnership has agreed to purchase the Phase One Parcels from Cascade; WHEREAS, Cascade is also the owner of legal or equitable title to that certain real property that is adjacent to the Phase One Parcels and that is legally described as Outlots A, B and C, Albertville Crossing, Wright County, Minnesota (collectively, the "Outlots"); WHEREAS, Cascade and the City of Albertville (the "City") are parties to that certain Developer's/Planned Unit Development Agreement/Conditional Use Agreement dated April 30 , 2002 (the "PUD Agreement"); WHEREAS, Pursuant to the PUD Agreement, the City has agreed to construct and install that certain traffic signal benefiting the Phase One Parcels and the Outlots, and also benefiting other properties, consisting of a 4-way stop light (red, yellow and green) system at the intersection of Wright County Highway 19 and 57"' Street (the "Traffic Signal"), WHEREAS, Pursuant to the PUD Agreement, Cascade, as owner of the Phase One Parcels and Outlots, has agreed to pay the City one-half (1/2) of the actual costs incurred by the City in the installation and construction of the Traffic Signal (which total costs incurred by the City in the installation and construction of the Traffic Signal shall be defined herein, collectively, as the "Total Signal Costs"); WHEREAS, the City and Partnership have agreed that the Partnership shall be obligated to pay to the City an amount equal to thirty percent (30%) of the Total Signal Costs; WHEREAS, the parties desire to set forth their agreement concerning the establishment of an escrow to secure Partnership's obligation to pay its share of the Total Signal Costs; and D:\Mike\ALRERT\Albertville Crossing\traffic light escrow.doc WHEREAS, the parties desire to set forth the terms and conditions concerning the establishment and operation of such escrow. NOW, THEREFORE, in consideration of the foregoing and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Establishment of Escrow. Partnership shall herewith transmit the sum of $67,500.00 (the "Escrow") to be held by Escrow Agent in accordance with the terms hereof, the receipt of which sum is hereby acknowledged by Escrow Agent. Escrow Agent shall retain the Escrow in an interest -bearing account which invests in customary short-term money market instruments, or which is federally insured. All such interest shall accrue to the benefit of the Partnership and shall be payable upon the final disbursement of the Escrow. Partnership's federal tax identification number is 41-2016276. 2. Disbursement of Escrow. Escrow Agent shall disburse the Escrow in accordance with the following: (a) By Mutual Consent. Notwithstanding any contrary provision herein, all or any portion of the Escrow shall be disbursed by Escrow Agent in accordance with any written directions that may be delivered to Escrow Agent and executed by the duly authorized by City and the Partnership. (b) To the City. Upon the final construction of the Traffic Signal, as confirmed and accepted in writing by the City Engineer of the City of Albertville, Minnesota, and upon receipt of a calculation of the final amount of Partnership's thirty percent (30%) share of the Total Signal Costs, and a statement from the City requesting payment therefore the Escrow Agent shall disburse the funds held in Escrow to the City in payment of Partnership's thirty percent (30%) share of the Total Signal Costs. In the event that the amount of the Escrow is not sufficient to pay the entirety of the Partnership's thirty percent (30%) of the Total Signal Costs, Partnership shall pay any deficiency to City within then (10) days of Partnership's receipt of a statement therefore. (c) To the Partnership. Following the disbursement to the City in accordance with the terms and conditions of 2(b) above, the Escrow Agent shall disburse any remaining funds held in Escrow to the Partnership. 3. Termination. This Escrow Agreement shall terminate when the entirety of the Escrow has been disbursed; provided, however, that the parties' respective rights to the Escrow as designated in this Agreement , if any, shall survive the termination hereof. 4. . Duties of Escrow Agent. The acceptance by Escrow Agent of its duties under this Escrow Agreement is subject to be following terms and conditions, which all parties to this Escrow Agreement hereby agree shall govern and control with respect to the rights, duties, liabilities and immunities of the Escrow Agent. D:Wike\ALBERT\Alhertville Cro."ing\traffic light t row.doe (a) Escrow Agent is not a party to, and is not bound by, any agreement which may be evidenced by or arise out of the foregoing escrow instructions, other than expressly therein set forth; (b) Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, receipt or other paper or document which Escrow Agent in good faith believes to be genuine and what it purports to be; and (c) Escrow Agent shall not be liable for any error of judgment, or for any act done or act taken or admitted by it in good faith, or for any mistake of fact or law, or for anything for which it may do or refrain from doing in connection therewith, except its own misconduct. The undersigned hereby indemnify and agree to pay Escrow Agent for any claims of expenses arising out of this Agreement, including court costs and reasonable attorney's fees, to the extent not arising as a consequence of Escrow Agent's bad faith or misconduct. 5. Bindina Effect. This Escrow Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns. 6. Applicable Law. This Escrow Agreement shall be governed by the laws of the State of Minnesota. 7. Modification. No rescission of this escrow or modification of its terms shall be effective without the written consent of the Partnership, the City and Escrow Agent. 8. Escrow Fees. Escrow Agent may disburse to itself its customary escrow fee from the Escrow as compensation for the performance of its duties hereunder. 9. Notices. Any notice required or permitted by this Agreement shall be given in writing and shall be deemed to have been given when delivered in person or when deposited in the United States Mail, both certified or registered with return receipt requested, postage prepaid, or if delivered prepaid to a nationally recognized overnight courier, addressed as follows: If to City: City of Albertville c/o City Clerk P.O. Box 9 Albertville, MN 55301 With a copy to: Michael C. Couri Couri & MacArthur Law Office P.O. Box 369 St. Michael, MN 55376 If to Partnership: KTJ Limited Partnership Seventy -Four c/o Oppidan, Incorporated 5125 County Road 101 DAMike\ALBERT\Alhertville CrossingAraffic light escrow.doc Suite 100 Minnetonka, MN 55345 With a copy to: Gary C. Eidson Fabyanske, Westra & Hart, P.A. 920 Second Avenue South Suite 1100 Minneapolis, Minnesota 55402 If to Escrow Agent: Commercial Partners Title, LLC Attn: Ms. Ann Hoffmeyer 330 Second Avenue South, Suite 820 Minneapolis, Minnesota 55401 and to such other address for any party or additional address as such party hereto may hereafter designate in a notice in writing given to the other parties hereto, as hereinabove provided. DAMiWALBERTWbeiiville Crossing\traffic light escrow.doe 4 y THIS ESCROW AGREEMENT is executed and delivered as of the date first above written. THE PARTNERSHIP: CITY: ESCROW AGENT: KTJ LIMITED PARTERSHIP SEVENTY-FOUR By Oppidan, Incorporated, Its General Partner By: / Michael T. Ayres Chief Operating Officer CITY OF ALBERTVILLE 12 at Linda Goeb City Administrator COMMERCIAL PARTNERS TITLE, LLC c� '1 affl CAwindows\TEMP\184217.doc 5 { ASSIGNMENT OF ESCROW FOR TRAFFIC SIGNAL THIS ASSIGNMENT OF ESCROW FOR TRAFFIC SIGNAL ("Assignment") is entered into as of September 110 , 2002, by and between KTJ LIMITED PARTNERSHIP SEVENTY-FOUR, a Minnesota limited partnership ("Assignor"), and ALBERTVILLE 2002, LLC ("Assignee"). RECITALS: WHEREAS, effective as of the date of this Assignment, Assignor is selling to Assignee, and Assignee is purchasing from Assignor that certain real property and the improvements thereon (the "Property") that are located in Albertville, Minnesota, and legally described on Exhibit "A" attached hereto; WHEREAS, the Property is presently being developed for use as a shopping center; WHEREAS, in conjunction with such development, it is anticipated that the City of Albertville shall construct a traffic signal consisting of a 4-way stop light (red, yellow and green) system at the intersection of Wright County Highway 19 and 57th Street (the "Traffic Signal"); WHEREAS, the Property is subject to that certain Developer's/Planned Unit Development Agreement/Conditional Use Agreement by and between the City of Albertville E (the "City") and Cascade II Land Co., LLC, that is dated April 30, 2002 (the "PUD Agreemenf'); WHEREAS, pursuant to the PUD Agreement, the City may assess thirty percent (30%) of the cost of the Traffic Signal against the Property or, alternatively, the owner of the Property may avoid any such assessment by paying thirty percent (30%) of the cost of the Traffic Signal within thirty (30) days of receipt of an invoice therefore from the City; WHEREAS, to provide funds for the payment of the cost of the Traffic Signal that may be assessed against the Property pursuant to the PUD Agreement, Assignor has entered into that certain Agreement Concerning Escrow for Traffic Signal, dated April 30, 2002, by and between Assignor, City and Commercial Partners Title, LLC, concerning an escrow deposit in the amount of $67,500.00 (the "Traffic Signal Escrow Agreement"); and WHEREAS, in conjunction with the sale of the Property, the parties desire to set forth their agreement concerning the assignment of rights, and assumption of obligations, under the Traffic Signal Escrow Agreement. AGREEMENT: NOW THEREFORE, in consideration of the foregoing, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: nAp1\gce\205976.doc 1. Assignor hereby assigns and transfers to Assignee all of its right, title and interest in, to and under the Traffic Signal Escrow Agreement, including without limitation, the Escrow (as defined therein). Assignee's federal tax identification number is 30-0109030. 2. Assignee hereby assumes and agrees to observe and perform all liabilities, obligations, and duties of Assignor under the Traffic Signal Escrow Agreement that arise or accrue under or with respect to the Traffic Signal Escrow Agreement on or after the date of this Assignment. 3. Assignor shall indemnify and hold Assignee harmless from any and all claims, demands and causes of action whatsoever which may be asserted against Assignee by reason of any obligations or undertakings on Assignor's part to be performed or discharged on or before to the date of this Assignment pursuant to any of the terms, covenants, or agreements contained in the Traffic Signal Escrow Agreement. In the event Assignee shall incur any such liability, loss or damage, or in the defense of any such claims, demands or causes of action, the amount thereof (including costs, expenses, and all reasonable attorney fees) shall be payable by Assignor to Assignee and Assignor shall reimburse Assignee therefor immediately upon demand. 4. Assignee shall indemnify and hold Assignee harmless from any and all claims, demands and causes of action whatsoever which may be asserted against Assignor by reason of any obligations or undertakings on Assignee's part to be performed or discharged after the date of this Assignment pursuant to any of the terms, covenants, or agreements contained in the Traffic Signal Escrow Agreement. In the event Assignor shall incur any such liability, loss or (! damage, or in the defense of any such claims, demands or causes of action, the amount thereof -- (including costs, expenses, and all reasonable attorney fees) shall be payable by Assignee to Assignor and Assignee shall reimburse Assignor therefor immediately upon demand. 5. This Assignment shall be binding upon and shall inure to the benefit of Assignor, Assignee, and their respective representatives, successors and assigns. 6. This Assignment shall be governed and interpreted in accordance with the laws of the State of Minnesota. [The remainder of this page intentionally blank.] n:\pl\gce\205976.doc 2 IN WITNESS WHEREOF, this Assignment of Escrow for Traffic Signal is executed as of the effective date hereof. ASSIGNOR: KTJ LINIITED PARTNERSHIP SEVENTY-FOUR, a Minnesota limited partnership By: OPPIDAN, INCORPORATED, a Minnesota corporation Its: General Partner By: �. Its: C`0•a ASSIGNEE: ALBERTVILLE 2002, LLC Wry-�„� FAI CIA -we nAp1\gce\205976.doc 3 EXHIBIT "A" Legal Description Lots 1, 2 and 3, Block 1, Albertville Crossing, according to the recorded plat thereof, Wright County, Minnesota. n:\pl\gce\205976.doc 4 JOINDER OF ESCROW AGENT THE UNDERSIGNED hereby joins in the foregoing Assignment of Escrow for Traffic Signal for the sole purpose of acknowledging the occurrence and effect of the assignment and assumption contemplated thereby and confirming that the entire initial deposit of $67,500.00 remains in escrow pursuant to the terms of the Traffic Signal Escrow Agreement. COMMERCIAL PARTNERS, LLC B, Its: Dated: September , 2002 nAp1\gce\205976.doc 5