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3938 Cedar Grove Pkwy - Ammended & Restated Easement & Assessment AgreementCommonwealth Land Title Insurance Compan Attn: Recording, File No. 231973 222 South Ninth Street, Suite 3060 Minneapolis, MN 55402 -3808 (the "Property "); and Receipt#: 181444 ABSTRACT FEE ATT COPY Return to: COMMONWEALTH LAND TITLE SERVICES 222 S 9TH ST #3060 MINNEAPOLIS, MN 55402 $40.00 $2.00 2839436 Recorded on: 12/30/2011 12:15 :08PM By: DMB, Deputy Joel T. Beckman County Recorder Dakota County, MN AMENDED AND RESTATED EASEMENT AND ASSESSMENT AGREEMENT This Amended and Restated Easement and Assessment Agreement ( "Agreement ") is made this ge of December 2011, by and between the CITY OF EAGAN, a Minnesota municipal corporation (hereinafter "City ") and CEDARVALE BUSINESS CENTER LLP, a Minnesota limited liability partnership, formerly a Minnesota general partnership, (hereinafter "Cedarvale Partnership "). (The City and Cedarvale Partnership are collectively referred to as the "Parties "). This Agreement replaces that certain Easement and Assessment Agreement dated June 1, 2004, recorded July 14, 2004 as Document No. 2225141. This Agreement revises the legal description and extends the expiration date. WHEREAS, Cedarvale Partnership is the fee owner of certain property located at 3902 — 3938 Cedar Grove Parkway and legally described as Lot 1, Block 1, Stryker Addition, according to the recorded plat thereof, Dakota County, Minnesota, except that part thereof which lies above elevation 842.40 feet (mean sea level datum, N.G.V.D., 1929) being the lowest floor level of the existing apartment buildings located thereon; and lying within the area described as follows: Beginning at the most Southerly corner of said Lot 1; thence North 33° 24' 00" West on an assumed bearing along the Southwesterly line of said Lot 1, a distance of 80.52 feet; thence North 53° 25' 04" East, a distance of 157.82 feet; thence North 36° 34' 56" West, a distance of 40.00 feet; thence North 53° 25' 04" East, a distance of 210.60 feet; thence South 36° 34' 56" East, a distance of 40.00 feet; thence North 53° 25' 04" East, a distance of 156.49 feet to the Northerly line of said Lot 1; thence South 40° 42' 50" East along the Northerly line of said Lot 1, a distance of 80.61 feet to the Northeast corner of said Lot 1; thence South 53° 25' 04" West along the Easterly line of said Lot 1, a distance of 177.60 feet; thence North 36° 34' 56" West, a distance of 40.00 feet; thence South 53° 25' 04" West, a distance of 180.00 feet; thence South 36° 34' 56" East, a distance of 40.00 feet; thence South 53° 25' 04" West, a distance of 177.59 feet to said point of beginning. WHEREAS, in connection with the City's Cedar Grove redevelopment activities, the City is proposing to construct future trailway improvements that will impact the Property (the "Future Project "); and WHEREAS, Cedarvale Partnership recognizes the benefit associated with the Future Project and is willing to grant the City the necessary construction easements and to provide a financial contribution towards the future project all upon the terms and conditions contained herein. NOW, THEREFORE, in consideration of the mutual covenants and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. CONSTRUCTION OF FUTURE PROJECT. The Parties acknowledge that the Future Project has not been authorized by the City Council of the City. If the Future Project is approved, it will include the following items: A. Construction of Trail. A trail shall be constructed adjacent to the Property within the existing public right -of -way. B. Retaining Walls. The construction of the trail may require the removal of trees and construction of a retaining wall. If the slope of the Property adjacent to the right -of -way will exceed a three to one ratio, then a retaining wall shall be constructed. The City will use its best efforts to keep the sign described in paragraph 5 below in its proposed location or condition. C. Parking Lot Construction. The construction of the proposed trail will require grading and reconstruction of a portion of the Property's parking lots in accordance with the plans prepared by SEH and dated January 5, 2004, which are currently on file with the City. In the event such construction occurs, the City agrees it will undertake to minimize disruption of the business activities that occur on the Property and further covenants that at least one driveway access for the property will remain open during construction. Cedarvale Partnership will be given a copy of the plans and specifications for the parking lot construction, and an opportunity to comment on them prior to the initiation of work. The grading, reconstruction, and resurfacing will include the following: (1) Grading, reconstruction, and resurfacing of the property marked with slashed lines on Exhibit A. (2) Doing this work so that it blends with the unchanged portions of the Property. Replacing any curbs that are damaged or destroyed during construction. (4) To the maximum extent possible, leaving the Property with a gently sloping grade from the buildings (or ungraded areas) to Cedarvale Parkway. (3) (5) Striping of the resurfaced areas to match the existing parking. (6) The trail, any retaining wall(s), and other changes in the right -of -way adjacent to the Property shall be finished in a manner consistent with the new Cedar Grove theme. 2. GRANT OF EASEMENT /WAIVER OF COMPENSATION. Cedarvale Partnership acknowledges that the construction of the trail and driveway and parking lot modifications under the Future Project require the grant of temporary construction easements to the City, its agents and contractors. Cedarvale Partnership shall, at no cost to the City, grant such temporary construction easements as may reasonably be required by the City to undertake the construction activity associated with the Future Project. The City will pay for the costs to prepare and record such easements. Cedarvale Partnership acknowledges that trees will be removed in connection with the Future Project, and Cedarvale Partnership waives any and all damages arising out of or relating to the removal of trees or other activities performed as described in to this Agreement. This grant and waiver is contingent upon the construction of the Future Project. 3 3. ASSESSMENT. Cedarvale Partnership recognizes the benefit to the Property as a result of the Future Project. Cedarvale Partnership, for itself, its successors and assigns, hereby accepts an assessment against the Property for the Future Project in an amount not to exceed $17,500.00. The assessment shall be levied against the Property in the year following completion of the Future Project. The assessment shall be payable over a period of 10 years at a rate of 7% per annum. 4. WAIVER OF OBJECTION. Cedarvale Partnership hereby waives its right to object or appeal the assessment described in paragraph 3 above, pursuant to MINN. STAT. §429.081, and further waives notice of hearing on this Agreement. 5. HOLD HARMLESS /INDEMNITY. Cedarvale Partnership acknowledges that it currently has a monument sign, and that it has requested the City to grant a conditional use permit to allow for the construction of a pylon sign. The construction of such sign will be located within the public drainage and utility easement adjacent to the right -of -way for Cedar Grove Parkway. Cedarvale Partnership agrees to hold harmless and indemnify the City from any claims, losses, judgments, damages or costs incurred, including attorneys' fees, resulting from the construction of the pylon sign on the Property within the public drainage and utility easement. This Agreement is subject to the City granting the conditional use permit, variance, and vacation of right -of -way to allow the sign as presented in City Planning Cases 19- CU- 16 -10 -13 and 19- VA- 18- 10 -13. The City further agrees to refund the second sign application fee paid by Cedarvale Partnership on or about March 19, 2004. 6. GOVERNING LAW. This Agreement shall be governed by and interpreted under the laws of the State of Minnesota. 7. EXPIRATION. In the event the City has not undertaken construction of the Future Project prior to June 1, 2014, this Agreement (other than the indemnity obligation under paragraph 5) shall be null and void and of no further effect. STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) The foregoing was acknowledged before me this day of December 2011, by Mike Maguire and Christina M. Scipioni, the Mayor and Clerk of the City of Eagan, a Minnesota municipal corporation, on behalf of the municipal corporation. APPROVED AS TO FORM: City Attorney's Office Dated: I (�l APPROVED AS TO CONTENT: Public Works Department Dated: 5 CITY OF EAGAN, a Minnesota municipal corporation By: Mike Maguire Its: Mayor By: Christina M. Scipioni Its: Clerk itAtQS STATE OF 1.14Pae-T-A) 0 4 0 )ss. COUNTY OFD 4149 -T-4 ) By: The foregoin was acknowledged before me this doh `s w -l�A_' and # .1 , 4.4... and --- Center LCPPa Minnesota limited liability partnership, partnership. JOANNA MILLER NOTARY PUBLIC STATE OF TEXAS MY COMM. EXR 6/22/14 THIS INSTRUMENT WAS DRAFTED BY: 6 CEDARVALE BUSINESS CENTER LLP, a Minnesota limited liability partnership SEVERSON, SHELDON, DOUGHERTY & MOLENDA, P.A. 7300 West 147th Street, Suite 600 Apple Valley, MN 55124 (952) 432 -3136 (RBB: 206 - 21773) /l day of December 2011, by , the of Cedarvale Business on behalf of the limited liability