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07(A) - Consider Approval of an Ordinance Annexing Approximately 10 Acres of Property in Spring Lake Township Pursuant to Minnesota Statute 414.033, Subd, 2 (3) Report
Location Map Shimek Annexation 17944 Revere Way, Prior Lake, MN 55372 (PID 119120042) Credit River Township, soon to be City of Credit River ANNEXATION PARCEL Spring Lake Township Spring Lake Township Spring Lake Township Spring Lake Township City of Prior Lake Drawn by:Cad File:Date:Folder #:Sheet 1 of 1 NJK00-SURV-121006-BASE4-21-218618TIE SHEET FOR:DISTINCTIVE LAND DEVELOPMENT, LLCREVERE PLACECIVIL ENGINEERSLAND PLANNERSLAND SURVEYORSLANDSCAPE ARCHITECTS2422 Enterprise DriveMendota Heights, MN 55120(651) 681-1914www.pioneereng.comFax: 681-9488Revised:5-12-21 1 AGREEMENT FOR ANNEXATION OF THE STEVEN G. SHIMEK AND LEE ANN SHIMEK REVOCABLE TRUST PROPERTY SPRING LAKE TOWNSHIP THIS AGREEMENT (“Agreement”) is entered into by and between Steven G. Shimek and Lee Ann Shimek, as Trustees of the Steven G. Shimek and Lee Ann Shimek Revocable Trust dated September 8, 2014 (“Owner”) and the City of Prior Lake, a Minnesota municipal corporation (“City”). RECITALS: WHEREAS, Owner is the fee owner of property in Spring Lake Township located at 17944 Revere Way, Prior Lake, MN 55372 and legally described on attached Exhibit A (“Property”). WHEREAS, Owner has filed a petition with the City requesting that the City annex the Property pursuant to Minn. Stat. 414.033, Subd. 2 (3). WHEREAS, the Property is located near the intersection of Scott County Highway 21 and Scott County Highway 87 [Revere Way] (“Intersection”). WHEREAS, City is unwilling to approve the annexation allowing additional residential development in this area due to the anticipated increase in vehicle trips through the Intersection until safety improvements can be made to the Intersection unless Owner agrees to comply with the terms and conditions of this Agreement. . WHEREAS, it is expected that the Intersection will be re-constructed and possibly re- aligned within the next several years (“Intersection Project”). WHEREAS, Owner agrees to comply with the terms and conditions of this Agreement including conditions relating to the Intersection Project, limiting the development of the Property to low-density residential, and execution of a Deposit Agreement for the Intersection Project. 2 NOW THEREFORE, based on the mutual promises and covenants set forth herein, the sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Recitals. The Recitals set forth above are incorporated herein. 2. Transportation Infrastructure Deposit. Owner acknowledges that the annexation and development of the Property will have a substantial impact on the transportation infrastructure of the Intersection and therefore agrees to contribute toward the Intersection Project. Owner shall execute and satisfy all terms set forth in the Deposit Agreement attached hereto and incorporated herein as Exhibit B for the Intersection Project. 3. Spring Lake Township Reimbursement. To mitigate the financial impact of an annexation on a township, Minnesota Statute § 414.036 requires reimbursement to township for annexed taxable property. Owner shall deposit with the City two times the amount of taxes that Spring Lake Township levied against the Property in 2021, which totals $1,816.46. City shall use these funds only for reimbursement to Spring Lake Township, which will be provided in two substantially equal payments over two years following approval of the petition for annexation. 4. Development and Use of Property. a. Owner acknowledges that the Property shall be developed only for low-density single-family residential uses. Any use or development of the Property shall be subject to all standard City review and approvals. b. City acknowledges that the Property may have difficulty meeting the City’s minimum unit per acre requirement of 2.5 units per acre due to existing environmental, topographical impediments as well as the pre-determined street location as established by a previous adjacent residential subdivision. City shall cooperate in good faith with Owner or future developer to design a low-density residential subdivision which will meet minimum unit per acre requirements. 5. Annexation. Upon execution of this Agreement and the Deposit Agreement and the recording of this Agreement with the Scott County Recorder’s Office, City shall file an ordinance annexing the Property with the Chief Administrative Law Judge. 6. Indemnification and Hold Harmless. The Owner shall indemnify, defend and hold the City, its Council, agents, employees, attorneys and representatives harmless against and in respect of any and all claims, demands, actions, suits, proceedings, liens, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and attorneys’ fees, that the City incurs or suffers, which arise out of, result from or relate to the annexation of the Property or this Agreement. The responsibility to indemnify and hold the City harmless from claims arising out of or resulting from the actions or inactions of the City, its Council, agents, employees, and representatives does not extend to any willful or intentional misconduct on the part of any of these individuals. 7. Binding Effect. This Agreement shall run with the Property and bind and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 3 8. Severability. In the event any provisions of this Agreement shall be held invalid, illegal, or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof, and the remaining provisions shall not in any way be affected or impaired thereby. 9. Waiver. Failure of either party at any time to require performance of any provision of this Agreement shall not affect its right to require full performance thereof at any time thereafter and the waiver by either party of a breach of any such provision shall not be taken or held to be a waiver of any subsequent breach thereof or as nullifying the effectiveness of such provision. 10. Reimbursement of Fees and Costs. Any fees or costs incurred by the City associated with enforcing any of the terms and conditions set forth in this Agreement, including but not limited to City staff, engineering and attorney’s fees, shall be the sole responsibility of the Owner. The Owner agrees that if Owner fails to pay any invoiced amount within 30 days of receipt thereof, the City may assess the invoiced amount against the Property. 11. Governing Law. The laws of the State of Minnesota shall govern all questions and interpretations concerning the validity and construction of this Agreement and the legal relations and performance obligations between the parties. The appropriate venue and jurisdiction for any litigation hereunder shall be those courts located within Scott County, Minnesota. Litigation, however, in the federal courts involving parties herein shall be in the appropriate federal court within the State of Minnesota. 12. Entire Agreement. This Agreement constitutes the final and complete agreement of the parties and shall supersede and replace any prior oral or written agreements between City and Owner. Any subsequent modification must be in writing signed by both parties. (Signatures Appear on Next Page) 4 IN WITNESS WHEREOF, the parties to this Agreement have hereunto set their hands as of the date set forth above. Steven G. Shimek and Lee Ann Shimek Revocable Trust By: Steven G. Shimek Its: Trustee By: Lee Ann Shimek Its: Trustee STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this ____ day of __________, 2021 by Steven G. Shimek and Lee Ann Shimek, the Trustees of Steven G. Shimek and Lee Ann Shimek Revocable Trust dated September 8, 2014. Notary Public 5 City of Prior Lake By: Kirt Briggs Its: Mayor By: Jason Wedel Its: City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this ____ day of ______________, 2021 by Kirt Briggs, Mayor and Jason Wedel, City Manager of the City of Prior Lake, a Minnesota municipal corporation on behalf of the corporation. Notary Public This Instrument Drafted By: Hoff Barry, P.A. 100 Prairie Center Drive, Suite 200 Eden Prairie, MN 55344 6 Exhibit A Legal Description of Property The South 662.41 feet of the East Half of the West Half of the Southeast Quarter of Section 12, Township 114, Range 22, Scott County Minnesota. Subject to an easement for road and utility purposes over, under and across the South 33.00 feet of the above described property. Also subject to an easement for road and utility purposes over, under and across that part of the above described property lying East of a line 33.00 feet West of the center line of Scott County Road Number 87. Scott County, Minnesota. PID: 119120042 7 Exhibit B Deposit Agreement 1 DEPOSIT AGREEMENT STEVEN G. SHIMEK AND LEE ANN SHIMEK REVOCABLE TRUST PROPERTY SPRING LAKE TOWNSHIP This Deposit Agreement (“Agreement”) is made and entered into on the _______ day of _______________, 2021, by and between the City of Prior Lake, a Minnesota municipal corporation (“City”), Steven G. Shimek and Lee Ann Shimek, as Trustees of the Steven G. Shimek and Lee Ann Shimek Revocable Trust dated September 8, 2014 (“Owner”) and Distinctive Land Development, L.L.C., a Minnesota Limited Liability Company (“Developer”). WHEREAS, Owner is the fee owner of property in Spring Lake Township located at 17944 Revere Way, Prior Lake, MN 55372 and legally described on attached Exhibit A (“Property”). WHEREAS, Owner intends to sell Property to Developer who will subdivide the property into a low-density residential subdivision (“Subdivision”) following annexation of the Property into the City of Prior Lake. WHEREAS, the intersection of Scott County Highway 87 and Scott County Highway 21 (“Intersection”) is in need of improvements and City is unwilling to approve the annexation allowing additional residential development in this area due to the anticipated increase in vehicle trips through the Intersection until safety improvements (“Improvements”) can be made to the Intersection unless Owner and Developer agree to execute and comply with this Deposit Agreement and Owner agrees to execute and comply with the related Agreement for the Annexation of the Property. WHEREAS, Owner and Developer acknowledge the Subdivision will have a substantial impact on the transportation infrastructure at the Intersection. 2 WHEREAS, due to the Subdivision’s impact on the Intersection, Developer has agreed to deposit funds with the City to contribute to the future Improvements. NOW, THEREFORE, as a condition of the City’s approval of the Petition for Annexation and based on the mutual promises and covenants set forth herein, the sufficiency of which are hereby acknowledged, the City, Owner and Developer agree as follows: 1. Obligation to Pay Deposit. Developer shall deposit with the City funds in the amount of $52,500 to be used by the City for the Improvements (“Deposit”). 2. Use of Deposit. a. The Deposit may be used only for the Improvements to the Intersection including but not limited to right-of-way acquisition; driving and turn lanes; medians; traffic control signals and signs; trails and sidewalks; and design, engineering and legal fees. b. Either the City or the County may construct or arrange for the construction of the Improvements. If the City constructs or arranges for construction, City shall use the Deposit for the Improvements. If the County constructs or arranges for construction, City shall pay the Deposit to the County for use towards the City’s share of the Improvements. c. The City shall not be responsible for paying any interest on the Deposit. d. The City shall account for the Deposit separately to ensure the Deposit is used only as set forth in this Agreement. 3. Improvements. City has not selected any design or timeline for the Improvements. City makes no assurances as to what the Improvements will consist of or when the Improvements will be constructed. 4. Refund. If the Improvements have not commenced by June 1, 2030, the City shall refund the full Deposit to Developer within 90 days of said date. If a refund is due, Developer shall provide City with written instructions detailing where the City should direct the refund. If Developer fails to do so, City shall submit the funds to the State as unclaimed funds. 5. No Third-Party Recourse. This Agreement is a contract agreement between the City, Owner and Developer. No provision of this Agreement inures to the benefit of any third person, including the public at large, so as to constitute any such person as a third-party beneficiary of the Agreement or of any one or more of the terms hereof, or otherwise give rise to any cause of action for any person not a party hereto. 6. Assignment. No party shall assign this Agreement, nor any interest arising herein, without the written consent of the other parties. 7. Governing Law. This Agreement shall be controlled by the laws of the State of Minnesota. Venue and jurisdiction for any action, suit or proceeding arising out of this 3 Agreement shall be only in the courts of Scott County, Minnesota or the federal courts for the United States for the District of Minnesota. 8. Entire Agreement. The entire agreement of the parties is contained herein. This Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties. 9. Severability. The provisions of this Agreement are severable. If any portion hereof is, for any reason, held by a court of competent jurisdiction to be contrary to law, such decision shall not affect the remaining provisions of this Contract. 10. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original. (Signatures Appear on Next Page) 4 IN WITNESS WHEREOF, the parties have caused these presents to be executed as of the day and year aforesaid. Steven G. Shimek and Lee Ann Shimek Revocable Trust By: Steven G. Shimek Its: Trustee By: Lee Ann Shimek Its: Trustee STATE OF MINNESOTA ) ) ss. COUNTY OF __________ ) The foregoing instrument was acknowledged before me this ____ day of __________, 2021 by Steven G. Shimek and Lee Ann Shimek, the Trustees of Steven G. Shimek and Lee Ann Shimek Revocable Trust dated September 8, 2014. 5 City of Prior Lake By: Kirt Briggs Its: Mayor By: Jason Wedel Its: City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this ____ day of ______________, 2021 by Kirt Briggs, Mayor and Jason Wedel, City Manager of the City of Prior Lake, a Minnesota municipal corporation on behalf of the corporation. 6 Distinctive Land Development, L.L.C. By: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ____ day of __________, 2021 by_________________________, the ______________________ of Distinctive Land Development, L.L.C, a Minnesota Limited Liability Company. This Instrument Drafted By: Hoff Barry, P.A. 100 Prairie Center Drive, Suite 200 Eden Prairie, MN 55344 7 of 7 Exhibit A Legal Description of Property The South 662.41 feet of the East Half of the West Half of the Southeast Quarter of Section 12, Township 114, Range 22, Scott County Minnesota. Subject to an easement for road and utility purposes over, under and across the South 33.00 feet of the above described property. Also subject to an easement for road and utility purposes over, under and across that part of the above described property lying East of a line 33.00 feet West of the center li ne of Scott County Road Number 87. Scott County, Minnesota. PID: 119120042 414.033 ANNEXATION BY ORDINANCE. Subdivision 1.Unincorporated property.Unincorporated property abutting a municipality may be annexed to the municipality by ordinance as provided for in this section. Subd.2.Conditions.A municipal council may by ordinance declare land annexed to the municipality and any such land is deemed to be urban or suburban in character or about to become so if: (1)the land is owned by the municipality; (2)the land is completely surrounded by land within the municipal limits; (3)the land abuts the municipality and the area to be annexed is 120 acres or less,and the area to be annexed is not presently served by public wastewater facilities or public wastewater facilities are not otherwise available,and the municipality receives a petition for annexation from all the property owners of the land. Except as provided for by an orderly annexation agreement,this clause may not be used to annex any property contiguous to any property either simultaneously proposed to be or previously annexed under this clause within the preceding 12 months if the property is or has been owned at any point during that period by the same owners and annexation would cumulatively exceed 120 acres;or (4)the land has been approved after August 1,1995,by a preliminary plat or final plat for subdivision to provide residential lots that average 21,780 square feet or less in area and the land is located within two miles of the municipal limits. Subd.2a.[Repealed,1997 c 202 art 5 s 9] Subd.2b.Notice,hearing required.Before a municipality may adopt an ordinance under subdivision 2,clause (2),(3),or (4),a municipality must hold a public hearing and give 30 days'written notice by certified mail to the town or towns affected by the proposed ordinance and to all landowners within and contiguous to the area to be annexed. Subd.3.60 percent bordered and 40 acres or less.If the perimeter of the area to be annexed by a municipality is 60 percent or more bordered by the municipality and if the area to be annexed is 40 acres or less,the municipality shall serve notice of intent to annex upon the town board and the chief administrative law judge,unless the area is appropriate for annexation by ordinance under subdivision 2,clause (3).The town board shall have 90 days from the date of service to serve objections with the chief administrative law judge.If no objections are forthcoming within the said 90-day period,such land may be annexed by ordinance. If objections are filed with the chief administrative law judge,the chief administrative law judge shall conduct hearings and issue an order as in the case of annexations under section 414.031,subdivisions 3 and 4. Subd.4.[Repealed,1978 c 705 s 33] Subd.5.Petition by property owners;objections;procedure.If the land is platted,or,if unplatted, does not exceed 200 acres,a majority of the property owners in number may petition the municipal council to have such land included within the abutting municipality and,within ten days thereafter,shall file copies of the petition with the chief administrative law judge,the town board,the county board and the municipal council of any other municipality which borders the land to be annexed.Within 90 days from the date of service,the town board or the municipal council of such abutting municipality may submit written objections to the annexation to the chief administrative law judge and the annexing municipality.Upon receipt of such objections,the chief administrative law judge shall proceed to hold a hearing and issue an order in accordance with section 414.031,subdivisions 3 and 4.If written objections are not submitted within the time specified in this section and if the municipal council determines that property proposed for the annexation is now or Copyright ©2017 by the Revisor of Statutes,State of Minnesota.All Rights Reserved. 414.033MINNESOTASTATUTES20171 is about to become urban or suburban in character,it may by ordinance declare such land annexed to the municipality.If the petition is not signed by all the property owners of the land proposed to be annexed,the ordinance shall not be enacted until the municipal council has held a hearing on the proposed annexation after at least 30 days'mailed notice to all property owners within the area to be annexed. Subd.6.If pending proceeding;waivers from parties.Whenever a proceeding for annexation is initiated under this section and all or any part of the land is included in another boundary adjustment proceeding pending before the chief administrative law judge,no action thereon shall be taken by the municipality,unless otherwise provided by an order of the chief administrative law judge,until final disposition has been made of the pending petition.Under this section,the chief administrative law judge will accept a waiver from all parties having a right to object,stating they have no objections to the proposed annexation and waiving the 90-day period before an annexation ordinance may be adopted. Subd.7.Filing;effective date;copy to auditors.Any annexation ordinance provided for in this section must be filed with the chief administrative law judge,the township,the county auditor and the secretary of state and is final on the date the ordinance is approved by the chief administrative law judge.A copy of the annexation ordinance must be delivered immediately by the governing body of the municipality to the appropriate county auditors. Subd.8.[Repealed,1980 c 487 s 23] Subd.9.[Repealed,1997 c 87 s 4] Subd.10.Chief administrative law judge may require additional information.The chief administrative law judge may require the city or property owners to furnish additional information concerning an annexation by ordinance to inform the chief administrative law judge about the extent to which the proposed annexation conforms to the statutory criteria set forth in sections 414.01,subdivision 1,and 414.031,subdivision 4. Subd.11.When annexed land is in floodplain or shoreland area.When a municipality declares land annexed to the municipality under subdivision 2,clause (3),and the land is within a designated floodplain, as provided by section 103F.111,subdivision 4,or a shoreland area,as provided by section 103F.205, subdivision 4,the municipality shall adopt or amend its land use controls to conform to chapter 103F,and any new development of the annexed land shall be subject to chapter 103F. Subd.12.Property taxes.When a municipality annexes land under subdivision 2,clause (2),(3),or (4),property taxes payable on the annexed land shall continue to be paid to the affected town or towns for the year in which the annexation becomes effective.If the annexation becomes effective on or before August 1 of a levy year,the municipality may levy on the annexed area beginning with that same levy year.If the annexation becomes effective after August 1 of a levy year,the town may continue to levy on the annexed area for that levy year,and the municipality may not levy on the annexed area until the following levy year. Subd.13.Electric utility service notice;cost impact.At least 30 days before a municipality may adopt an ordinance under subdivision 2,clause (2),(3),or (4),the petitioner must be notified by the municipality that the cost of electric utility service to the petitioner may change if the land is annexed to the municipality. The notice must include an estimate of the cost impact of any change in electric utility services,including rate changes and assessments,resulting from the annexation. History:1969 c 1146 s 12;1975 c 271 s 6;1978 c 705 s 15-21;1979 c 50 s 52;1985 c 30 s 2,3;1991 c 291 art 12 s 24;1992 c 556 s 5-8;1994 c 511 s 4-8;1996 c 303 s 13,14;1997 c 31 art 3 s 14,15;1997 c 202 art 5 s 3-5;2002 c 223 s 8-12;2006 c 270 art 2 s 8,9,13;2007 c 90 s 2,3,5;2008 c 196 art 2 s 15;2008 c 277 art 1 s 98;2014 c 220 s 3 Copyright ©2017 by the Revisor of Statutes,State of Minnesota.All Rights Reserved. 2MINNESOTASTATUTES2017414.033