ITEM 3.9 Resolution 2017-83TY O
Otsezzo
MINNESOTA CDo
DEPARTMENT INFORMATION
Request for
City Council Action
ORIGINATING DEPARTMENT REQUESTOR:
MEETING DATE:
Administration City Clerk Loff
September 25, 2017
PRESENTER(s) REVIEWED BY:
ITEM #:
Consent Agenda
3.9
AGENDA ITEM DETAILS
RECOMMENDATION:
City staff recommends approve of Assignment and Assumption of Rights and Obligations Agreement and
Resolution 2017-83 Approving and Authorizing the Execution of Assignment of Development Agreement.
ARE YOU SEEKING APPROVAL OF A CONTRACT?
IS A PUBLIC HEARING REQUIRED?
No
BACKGROUND/JUSTIFICATION:
The attached agreement and Resolution needs to be added to the agenda this evening per Mary Ippel.
The original Developers Agreement was dated and signed July 17, 2017 and has listed Riverview Landing,
Inc. a Minnesota nonprofit corporation. The Developer would like to assign its interest in the Development
Agreement pursuant to an Assignment and Assumption of Right and Obligations Agreement by and
between the Developer and Evans Park, Inc., a Minnesota nonprofit corporation.
SUPPORTING DOCUMENTS ATTACHED:
• Assignment and Assumption of Rights and Obligations Agreement
• Resolution 2017-83
POSSIBLE MOTION
PLEASE WORD MOTION AS YOU WOULD LIKE ITTO APPEAR IN THE MINUTES:
Motion to approve Assignment and Assumption of Rights and Obligations Agreement and Adopt Resolution
2017-83 Approving and Authorizing the Execution of Assignment of Development Agreement.
BUDGET INFORMATION
FUNDING: BUDGETED:
ASSIGNMENT AND ASSUMPTION OF
RIGHTS AND OBLIGATIONS AGREEMENT
This instrument drafted by:
Briggs and Morgan, Professional Association (MLI)
2200 IDS Center
80 South 8th Street
Minneapolis, Minnesota 55402
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The Parties:
(a) RIVERVIEW LANDING, INC., a Minnesota nonprofit corporation, with a
mailing address of 508 Freeport Avenue NW, Suite A, Elk River, Minnesota 55330 and a
Developer under a Developer's Agreement with the City of Otsego, Minnesota (the "City"),
dated as of July 17, 2017 (the "Development Agreement"), is hereinafter referred to as Assignor.
(b) EVANS PARK, INC., a Minnesota nonprofit corporation, with a mailing address
of 508 Freeport Avenue NW, Suite A, Elk River, Minnesota 55330 and a Developer under the
Development Agreement, is hereinafter referred to as Assignee.
2. Date:
(a) This Assignment and Assumption of Rights and Obligations Agreement (the
"Agreement") is dated and shall be effective on , 2017.
3. Recitals:
The Assignor desires to assign its rights, and be released from all of its duties, obligations
and responsibilities under the Development Agreement to the Assignee and the Assignee is
willing to accept such rights and assume all duties, obligations and responsibilities under the
Development Agreement.
NOW THEREFORE, in consideration of the premises, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
4. Assignment of Development Agreement: The Assignor hereby assigns, transfers and
quitclaims all rights, duties, obligations and responsibilities under the Development Agreement
to the Assignee, subject to the terms of this Agreement. The Assignee hereby accepts such rights
and assumes such duties, obligations and responsibilities under the Development Agreement,
subject to the terms of this Agreement.
5. Covenants of Assignor: The Assignor warrants:
(a) The Assignor is the owner of the Developer's interest in the Development
Agreement assigned by this instrument and all of the rights which the Development Agreement
purports to create, with full right to convey the same.
(b) The Development Agreement is now unencumbered, valid, and in full force and
effect in accordance with its terms.
(c) All amounts due on or before the date hereof from the Assignor under the
Development Agreement have been paid in full as of the date hereof and there are no setoffs,
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defenses, or counterclaims on the part of the Assignor to the payment or performance of the
obligations under the Development Agreement.
(d) The Assignor, to the best of its knowledge, is not in default under any of the
terms, conditions or covenants of the Development Agreement.
(e) The Assignor hereby agrees to indemnify and hold the Assignee and the City
harmless from all claims by third parties arising prior to the date of this Assignment, as provided
in the Development Agreement.
6. Covenants of Assignee:
(a) As a condition of the assignment herein, the Assignee hereby expressly assumes
the duties, obligations and responsibilities of the Assignor as the "Developer" under the
Development Agreement.
(b) The Assignee hereby expressly subordinates its rights under this Assignment to
the rights of the City under the Development Agreement, and further expressly agrees to take no
action in derogation of any other rights of the City under the Development Agreement.
(c) The Assignee acknowledges that it may not re -assign the Developer's rights under
the Development Agreement without the express prior written consent of the City or as provided
in the Development Agreement.
(d) The Assignee certifies that it has the qualifications and financial responsibility
necessary and adequate to fulfill the obligations undertaken by the Developer in the
Development Agreement.
(e) The Assignee hereby agrees to indemnify and hold the Assignor and the City
harmless from all claims by third parties arising from and after the date of this Assignment, as
provided in the Development Agreement.
7. Assignee Default: In the event the Assignee defaults under the terms and obligations of
the Development Agreement assigned hereunder and does not cure the default in accordance
with the terms of the Development Agreement, the Assignee acknowledges the City has the right
to pursue any remedies against the Assignee as provided in the Development Agreement without
any notice to and without seeking any remedy from the Assignor.
8. Governing Law: It is agreed that this Assigm-nent shall be governed by, construed and
enforced in accordance with the laws of the State of Minnesota.
9.' Attorneys Fees: In the event that any action is filed in relation to this Assignment, the
unsuccessful party in the action shall pay to the successful party, in addition to all the sums that
either party may be called on to pay, a reasonable sum for the successful party's attorneys' fees.
10. Partial Invalidity: The invalidity of any portion of this Assignment will not and shall
not be deemed to affect the validity of any other provision. In the event that any provision of this
Assignment is held to be invalid, the parties agree that the remaining provisions shall be deemed
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to be in full force and effect as if they had been executed by both parties subsequent to the
expungement of the invalid provision.
11. Entirety of Agreement: This Assignment shall constitute the entire agreement between
the parties and any prior understanding or representation of any kind preceding the date of this
Assignment shall not be binding upon either party except to the extent incorporated in this
Agreement.
12. Modification: Any modification of this Agreement or additional obligation assumed by
either party in connection with this Assignment shall be binding only if placed in writing and
signed by each party or an authorized representative of each party.
13. Paragraph Headings: The titles to the paragraphs of this Agreement are solely for the
convenience of the parties and shall not be used to explain, modify, simplify, or aid in the
interpretation of the provisions of this Agreement.
14. Execution in Counterparts: This Agreement may be executed, acknowledged and
delivered in any number of counterparts and each of such counterparts shall constitute an original
but all of which together shall constitute one agreement.
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IN WITNESS WHEREOF, each party to this Agreement has caused it to be executed on
this T day of , 2017.
ASSIGNOR:
RIVERVIEW LANDING, INC.
a Minnesota nonprofit corporation
By:
Its:
STATE OF MINNESOTA )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2017, by , the of Rivel view
Landing, Inc., a Minnesota nonprofit corporation, on behalf of said nonprofit corporation.
Notary Public
[Notarial Stamp]
S-1
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ASSIGNEE:
EVANS PARK, INC.
a Minnesota nonprofit corporation
By
Its
STATE OF MINNESOTA )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this
2017, by , the of
Minnesota nonprofit corporation, on behalf of said nonprofit corporation.
Notary Public
[Notarial Stamp]
S-2
84923590
day of ,
Evans Park, Inc., a
CONSENT AND ACKNOWLEDGMENT OF
THE CITY OF OTSEGO, MINNESOTA
The City of Otsego, Minnesota, by its undersigned designated representatives, hereby
expressly consents to the assignment of the Development Agreement by Riverview Landing,
Inc., pursuant to the terms and conditions of the foregoing Assignment and Assumption of Rights
and Obligations. Upon the effective date of the Assignment, the Assignor shall be released from
all of its duties, obligations and responsibilities under the Development Agreement and the
Assignor shall have no rights.
CITY OF OTSEGO, MINNESOTA
By _
Mayor
and
By
City Administrator/Finance Director
STATE OF MINNESOTA )
) SS
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of ,
2017, by Jessica Stockamp, the Mayor and Adam Flaherty, the City Administrator/Finance
Director of the City of Otsego, Minnesota, a Minnesota municipal corporation, on behalf of said
municipal corporation.
Notary Public
[Notarial Stamp]
S-3
84923590
Extract of Minutes of a Meeting of the
City Council of the
City of Otsego, Minnesota
Pursuant to due call and notice thereof, a regular meeting of the City Council of
the City of Otsego, Minnesota, was duly held at the City Hall in said City on Monday, the 25'h
day of September, 2017, at 7:00 P.M.
The following members were present:
and the following were absent:
Member
adoption:
introduced the following resolution and moved its
RESOLUTION 2017-83
RESOLUTION APPROVING AND AUTHORIZING THE EXECUTION OF ASSIGNMENT
OF DEVELOPMENT AGREEMENT
WHEREAS, the City Council entered into a Development Agreement, dated July 17,
2017 (the "Development Agreement") with Riverview Landing, Inc., a Minnesota nonprofit
corporation (the "Developer"). The Developer desires to assign its interest in the Development
Agreement pursuant to an Assignment and Assumption of Rights and Obligations Agreement
(the "Assignment") by and between the Developer and Evans Park, Inc., a Minnesota nonprofit
corporation.
WHEREAS, a draft of the Assignment has been submitted to the City Council for
approval.
BE IT RESOLVED by the City Council of the City of Otsego, Minnesota, that the City
Council hereby approves the Assignment in substantially the form submitted, and the Mayor and
the City Administrator/Finance Director are hereby authorized and directed to execute the
Consent and Acknowledgement of the City to the Assignment on behalf of the City. In the
absence of the Mayor or the City Administrator/Finance Director, any document authorized by
this resolution to be executed may be executed by an acting or duly designated official.
The motion for the adoption of the foregoing resolution was duly seconded by member
, and after full discussion thereof and upon vote being taken thereon, the
following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
Mayor
Attest:
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City Administrator/Finance Director
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STATE OF MINNESOTA
COUNTY OF WRIGHT
CITY OF OTSEGO
I, the undersigned, being the duly qualified and acting City Administrator/Finance
Director of the City of Otsego, Minnesota, DO HEREBY CERTIFY that I have compared the
attached and foregoing extract of minutes with the original thereof on file in my office, and that
the same is a full, true and complete transcript of the minutes of a meeting of the City Council of
said City duly held on the date therein indicated, insofar as such minutes relate to a resolution
giving approval to Assignment of Development Agreement.
WITNESS my hand this 25th day of September, 2017.
City Administrator/Finance Director
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