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HomeMy WebLinkAbout2016-095 Council ResolutionCITY OF LINO LAKES RESOLUTION NO. 16-95 APPROVING LAND ACQUISITION FROM COMCAST CCH SUBSIDIARY HOLDINGS, INC., WHEREAS, the City and Dupont Holdings, LLP ("Developer) entered into a Development Agreement and Planned Unit Development Agreement dated May 6, 2016, for the Saddle Club Second Addition; and WHEREAS, a condition of the Development Agreement is that the Developer, is required to construct Fox Road and extend utilities through the abutting property (a/k/a the Comcast Property) legally described as: The South 550.00 feet of the East 330.00 feet of the Southwest Quarter of the Southwest Quarter of Section 28, Township 31, Range 22, Anoka County, Minnesota. ; and WHEREAS, the City and Developer entered into a Land Acquisition Escrow Agreement providing for the City's acquisition of the Comcast parcel; and WHEREAS, the City has reached an agreement with Comcast CCH Subsidiary Holdings, Inc., to acquire the land for the making of said improvements. NOW, THEREFORE BE IT RESOLVED by The City Council of The City of Lino Lakes: The city council of the City approves the sale of the property to Comcast CCH Subsidiary Holdings, Inc. The mayor and city clerk are hereby authorized and directed to execute a purchase agreement and other documents as may be necessary in order to purchase the Property. Adopted by the Council of the City of Lino Lakes this 22nd day of August, 2016. The motion for the adoption of the foregoing resolution was introduced by Council Member Rafferty and was duly seconded by Council Member Manthey and upon vote being taken thereon, the following voted in favor thereof: Rafferty, Manthey, Maher, Kusterman, Reine The following voted against same: none AT 1'FST: Julia ' e Bartell, City 1 lerk Jeff Reinert, ayor STAFF ORIGINATOR: MEETING DATE: May 9, 2016 TOPIC: CITY COUNCIL AGENDA ITEM 6H Michael Grochala, Community Development Director i. Consider Resolution No. 16-95, Acquisition from Comcast, Saddle Extension ii. Consider First Reading of Ordinance Sale of Land to Dupont Holdings, LLP. VOTE REQUIRED: 3/5 INTRODUCTION Approving Land Club Fox Road 10-16, Approving Staff is requesting City Council approval of the land purchase from Comcast and the sale of same land to Dupont Holdings, LLC for the Fox Road extension. BACKGROUND On April 11, 2016 the City Council adopted Resolution No. 16-13 approving the development agreement for Saddle Club 2nd Addition which required the future extension of Fox Road through property currently owned by Comcast. The agreement was contingent on the Developer and City entering into a purchase agreement for land necessary to construct the connection. In May of 2016 the City entered into a Land Acquisition Escrow Agreement providing for the City's acquisition of the Comcast parcel and sell of said land to developer. Staff has finalized the agreement with Comcast to purchase the property in the amount of $100,000. The purchase agreement for the sale of said land in the same amount has also been finalized. In accordance with the escrow agreement the funds equal to the purchase price have been placed into escrow with the City. RECOMMENDATION Staff is recommending approval of Resolution No. 16-95 and the 1' Reading of Ordinance No. 10-16. ATTACHMENTS 1. Resolution No. 16-95. 2. Purchase Agreement with Comcast 3. Ordinance No. 10-95 4. Purchase Agreement with Dupont Holdings, LLP AGREEMENT OF SALE AND PURCHASE THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement") made as of the day of July, 2016, by and between CITY OF LINO LAKES, a Minnesota municipal corporation ("Buyer"), and COMCAST CCH SUBSIDIARY HOLDINGS, INC., successor -by - merger to Comcast MO of the North Central Suburbs, Inc., f/k/a MediaOne of the North Central Suburbs, Inc., f/k/a Group W Cable of the North Central Suburbs, Inc., a Delaware corporation ("Seller"). In consideration of the covenants and provisions contained in this Agreement, the parties agree as follows: 1. Agreement to Sell and Purchase. (a) Property. Seller owns a parcel of land located at 876 Old Birch Street, Lino Lakes, Minnesota, as more particularly described on Exhibit A attached hereto (the "Parcel"). Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, subject to the terms and conditions of this Agreement, an unimproved portion of the Parcel, identified as "Parcel B" on the minor subdivision survey prepared by E.G. Rud & Sons, Inc. dated April 1, 2016 (the "Subdivision Plan") attached hereto as Exhibit A-1 (the "Property"). The remaining portion of the Parcel to be retained by Seller, identified as "Parcel A" on the Subdivision Plan, shall be referred to herein as the "Retained Property." 2. Purchase Price. (a) Amount; Payment. The purchase price (the "Purchase Price") for the Property shall be One Hundred Thousand Dollars ($100,000.00). The Purchase Price shall be paid as follows: (i) Five Thousand Dollars ($5,000.00) (the "Deposit") is to be paid by Buyer to the Minneapolis, Minnesota office of Fidelity National Title Insurance Company ("Title Company"), within five (5) business days after the execution and delivery of this Agreement by both parties. (ii) The balance of the Purchase Price shall be paid at Closing (as such term is defined below) by wire transfer of immediately available funds. 3. Disposition of Deposit. (a) Held in Escrow. The Deposit shall be held in escrow in a federally insured money market account and disbursed by Title Company strictly in accordance with the terms of this Agreement and applicable law. All interest earned on the Deposit shall also comprise part of the Deposit. (b) Upon Default. (i) If Buyer, without the right to do so and in default of its obligations under this Agreement, fails to complete Closing, Seller shall have the right to be paid the Deposit as liquidated damages. The parties acknowledge that the actual damages which Seller may incur by reason of Buyer's default are difficult to quantify as of the date of this Agreement and that the Deposit constitutes adequate and reasonable compensation to Seller as a result of Buyer's default hereunder. (ii) If Seller, without the right to do so and in default of its obligations under this Agreement, fails to complete Closing, Buyer shall, as Buyer's sole and exclusive remedy, either (i) terminate this Agreement by notice to Seller, and upon the giving of such notice of termination this Agreement shall terminate, and thereafter neither party shall have any further rights, obligations or liabilities under this Agreement except to the extent any right, obligation or liability set forth in this Agreement expressly survives termination of this Agreement, and receive a return of the Deposit; or (ii) sue for and obtain specific performance from Seller. As a condition precedent to Buyer exercising any right it may have to bring an action for specific performance as a result of Seller's default hereunder, Buyer must commence such an action within sixty (60) days following the date upon which Closing was to have occurred. Buyer agrees that its failure to timely commence such an action for specific performance within this sixty (60) -day period shall be deemed a waiver by it of its right to commence such an action. (iii) If Closing is completed, Title Company shall pay the Deposit to Seller on account of the Purchase Price. (c) Escrow Provisions. Title Company shall hold the Deposit in accordance with the terms of the Escrow Investment Instructions and General Settlement Instructions executed and delivered by Buyer, Seller and Title Company. 4. Closing. The closing and settlement of this transaction ("Closing") shall take place through an escrow established with the Title Company. Closing shall occur no later than ten (10) business days following the later of: (a) the expiration of the Inspection Period, or (b) Buyer's receipt of the Approvals (the "Closing Date"). 5. Condition of Title. Seller shall cause the Title Company to issue a title insurance commitment for the Parcel and deliver a copy thereof to Buyer. Seller shall convey to Buyer at closing fee simple title to the Property, subject to (a) the lien of real estate taxes, if any, not yet due and payable and any installments of special assessments certified for payment therewith; (b) building, subdivision and zoning ordinances; (c) all matters of record; and (d) any other matters identified in the title insurance commitment. Notwithstanding the foregoing, at or before Closing, Seller shall be obligated to cure, remove or provide for the satisfaction of any mortgage liens and security interests encumbering the Property and the satisfaction (or insurance over) of any mechanics liens or judgment liens other than any liens arising out of Buyer's activities with respect to the Property. Otherwise Seller is not required to cure, remove or provide for the satisfaction of any claimed title defect. -2- 6. Possession; Seller's Closing Documents. (a) Actual, sole and exclusive physical possession of the Property shall be given to Buyer at Closing unoccupied and free of any leases, claims to, or rights of possession, including any rights of tenants, by delivery of Seller's limited warranty deed, duly executed and acknowledged by Seller (the "Deed"). Seller shall also deliver a "FIRPTA" certificate and a secretary's certificate in Seller's standard form regarding Seller's authority to convey the Property. Seller shall have no obligation to deliver any other documents at Closing. 7. Apportionments. (a) Taxes, Rents, etc. Real estate taxes on the Property, water and sewer rents, other municipal charges, and any lienable owners' association assessments and charges shall be apportioned pro rata between Seller and Buyer on a per diem basis as of the Closing Date. In the event ad valorem and special improvement taxes for the year in which Closing occurs are unavailable on the Closing Date, prorations for taxes will be based upon the ad valorem and special improvement taxes for the prior year subject to adjustment by the parties within thirty (30) days after the same for the current tax year become available. (b) Other Closing Costs. (i) Buyer's Responsibility. Whether or not Closing actually occurs hereunder, Buyer shall be solely responsible for all fees, costs and expenses incident to this transaction and the Closing, including, without limitation: (A) realty transfer taxes imposed upon the delivery and/or recording of the Deed or upon this transaction; (B) the fees of any counsel representing it in this transaction, (C) the premium for any title insurance policy obtained by Buyer and all related search charges, including the charge for any extended coverage or other endorsements, (D) the cost of recording the Deed, (E) the cost of any survey obtained by Buyer, (F) all of Title Company's escrow and the closing fees, (G) mortgage recording fees and documentary stamp taxes and intangible taxes imposed on any mortgage financing which Buyer may obtain in connection with its acquisition of the Property, (H) any costs associated with any financing which Buyer may obtain in connection with its acquisition of the Property, (I) any costs associated with obtaining Subdivision Approval (as hereinafter defined), and (J) all other costs and expenses incident to this transaction, except as otherwise expressly set forth in Sections 7(a) and 7(b)(ii) hereof. (ii) Seller's Responsibility. Seller shall pay (A) the fees of any counsel representing it in connection with this transaction, and (B) all costs to cure or attempt to cure any title objection that Seller elects to cure or is obligated to cure pursuant to the terms of this Agreement. (iii) The provisions of this Section 7 shall survive the Closing or any termination of this Agreement. 8. Inspection Contingency. (a) Buyer's Inspection Right. Buyer, and its attorneys, accountants, architects, engineers and other representatives shall, during the period ("Inspection Period") - 3 - commencing on the date of this Agreement and expiring at 5:00 p.m. Eastern time on the date that is sixty (60) days after the mutual execution and delivery of this Agreement have the opportunity to examine the Property, the Property's compliance with zoning and all other applicable laws, and the title to and the physical condition of the Property. (b) Restoration. Following completion of Buyer's inspections, Buyer shall promptly and diligently restore any portion of the Property disturbed or damaged by Buyer or its representatives to its condition prior to Buyer's entry hereunder, at Buyer's sole cost and expense. (c) Indemnification. Except to the extent arising from or out of the gross negligence or willful misconduct of Seller or Seller's officers, directors, employees and agents, Buyer shall indemnify, defend and hold harmless Seller and Seller's officers, directors, employees and agents from and against any and all claims, suits, actions, liabilities, losses, damages and expenses of every kind and nature (including, without limitation, reasonable attorneys' fees and court costs) arising in whole or in part from (i) any act or omission of Buyer or any of its employees, agents, contractors, subcontractors, attorneys, accountants, architects, engineers and other representatives while in, on or about the Property, and (ii) any loss, damage or injury, including death, that is suffered or sustained by, Buyer or any of its employees, agents, contractors, subcontractors, attorneys, accountants, architects, engineers and other representatives while in, on or about the Property. The provisions of this subsection (iii) will survive Closing or any termination of this Agreement. (d) Buyer's Termination Right. On or before the expiration of the Inspection Period, Buyer shall provide Seller with written notice of Buyer's election either (i) to proceed to Closing, in which event Buyer shall no longer have any right to terminate this Agreement pursuant to this Section 8 or (ii) to terminate this Agreement. Such election shall be made by Buyer in its sole and absolute discretion. If Buyer terminates this Agreement pursuant to this Section, the Deposit shall be promptly paid to Buyer, and thereafter neither party shall have any further rights, obligations or liabilities under this Agreement except to the extent any right, obligation or liability set forth in this Agreement expressly survives termination of this Agreement. If Buyer does not give Seller written notice terminating this Agreement prior to expiration of the Inspection Period, Buyer shall be deemed to have elected to proceed to Closing. (e) Release. Buyer acknowledges that it has had or will have an adequate opportunity to inspect the Property, including the physical and environmental condition of the property. Seller makes no representations or warranties with respect to the Property. Buyer releases the Seller and the Seller's officers, directors, partners, members, shareholders, employees, and agents from any and all claims, causes of actions, damages, liabilities, costs and expenses (including attorney's fees whether suit is instituted or not) whether known or unknown, liquidated or contingent (collectively the "claims") arising from or relating to any conditions, including environmental and other physical conditions, affecting the Property. The release set forth herein specifically includes, without limitation, any claims under any environmental laws of the United States, the state in which the Property is located or any political subdivision thereof, as any of those laws may be amended from time to time. The provisions of this subsection (e) will survive closing. (f) Subdivision Approval. Buyer shall not be obligated to purchase the Property from Seller and Seller shall not be obligated to sell the Property to Buyer unless within six (6) months following the date of mutual execution and delivery of this Agreement (the "Approvals Period"), Buyer has, at its sole cost and expense, obtained approval from the City of Lino Lakes (the "City") to subdivide the Parcel into the Property and the Retained Property as shown in the Subdivision Plan (the "Subdivision Approval"). Buyer agrees to proceed with diligence and in good faith to submit the necessary applications, plans, specifications, plats and surveys to the City to obtain the Subdivision Approval. Buyer, at its sole cost and expense shall (i) prepare and submit any and all applications, plans, specifications, plats and surveys to Seller for Seller's review and approval prior to making any submissions to the City; (ii) obtain Seller's approval of any amendments or modifications to any submissions previously approved by Seller or of any supplemental submissions being made to the City; and (iii) obtain Seller's approval prior to agreeing to any undertaking required by the City that could have an impact on the Retained Property. At Buyer's request (and at Buyer's sole cost and expense including the fees of Seller's counsel), Seller will join in any applications prepared by Buyer and approved by Seller and otherwise cooperate with Buyer in accomplishing the foregoing. Where Seller's approval is required under this Section 8(0, Seller may withhold such approval in its sole discretion. Buyer shall provide Seller with monthly updates on the status of the Subdivision Approval commencing on the 15th day of the month immediately following the expiration of the Inspection Period and give Seller at least ten (10) days prior notice of any hearings before the City in connection with the Subdivision Approval. Seller shall have the right but no obligation to have a representative and/or counsel present at and provide testimony at any such hearings. 9. Brokerage. Each party hereby represents and warrants to the other it has dealt with no broker, finder or other intermediary in connection with this sale. Buyer and Seller each agrees to indemnify, defend and hold each other harmless from and against all claims, demands, causes of action, loss, damages, liabilities costs and expenses (including without limitation attorneys' fees and court costs) arising from any claims for commissions made by any broker, finder or other intermediary. The provisions of this Section shall survive Closing. 10. Notices. All notices, demands, requests or other communications from either party to the other required or permitted under the terms of this Agreement shall be in writing and, unless and until otherwise specified in a written notice by the party to whom notice is intended to be given, shall be sent to the parties at the respective addresses set forth below or such other address as may be so designated by either party. Notices may be given on behalf of any party by its legal counsel. Each such notice, demand, request or other communication shall be given (i) against a written receipt of hand delivery, (ii) by registered or certified mail of the United States Postal Service, return receipt requested, postage prepaid, or (iii) by a nationally recognized overnight courier service for next business day delivery. Each such notice, demand request, or other communication shall be deemed to have been given upon actual receipt or refusal by the addressee. - 5 - If intended for Buyer: City of Lino Lakes 600 Town Center Parkway Lino Lakes, MN 55014 Attn.: Community Development Director If intended for Seller: Comcast CCH Subsidiary Holdings, Inc. 10 River Park Plaza St. Paul, MN 55107 Attn: Real Estate Department With a copy to: Comcast Cable Communications, LLC One Comcast Center 1701 John F. Kennedy Boulevard Philadelphia, PA 19103-2838 Attn: Jennifer Kissiah Hunt, Esquire If intended for Title Company: Fidelity National Title Insurance Company 222 South 9th Street, Suite 3060 Minneapolis, MN 55402 Attn: Holly Johnsen 11. Intentionally Omitted. 12. Intentionally Omitted. 13. Miscellaneous. (a) Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, personal representatives, successors and permitted assigns. Buyer shall not have the right to assign this Agreement without Seller's prior written consent, which may be withheld by Seller in its sole discretion. (b) Entire Agreement; Governing Law. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, supersedes all prior or other negotiations, representations, understandings and agreements of, by or among the parties, express or implied, oral or written, which are fully merged herein. Any agreement hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of this Agreement unless such agreement is in writing and signed by the party against whom -6- enforcement of such change, modification, discharge or abandonment is sought. This Agreement shall be governed by and construed under the laws of the State in which the Property is located. (c) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall be binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected on this Agreement as the signatories. (d) No Waiver. Neither the failure nor any delay on the part of either party to this Agreement to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of any such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver. (e) Time of the Essence. Time, wherever stated in this Agreement is declared to be of the essence of this Agreement. (f) WAIVER OF JURY TRIAL. SELLER AND BUYER INTENTIONALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUN I ERCLAIM (WHETHER ARISING IN TORT OR CONTRACT) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. (g) NO WARRANTY. EXCEPT FOR SELLER'S EXPRESS REPRESENTATIONS MADE IN THIS AGREEMENT, IF ANY, BUYER ACKNOWLEDGES AND AGREES THAT THE PROPERTY SHALL BE SOLD, AND BUYER SHALL ACCEPT POSSESSION OF THE PROPERTY ON THE CLOSING DAIS "AS IS — WHERE IS, WITH ALL FAULTS," WITH NO RIGHT OF SETOFF OR REDUCTION IN THE PURCHASE PRICE, AND BUYER SHALL ASSUME THE RISK THAT ADVERSE PHYSICAL, ENVIRONMENTAL, ECONOMIC OR LEGAL CONDITIONS MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER SELLER, ITS EMPLOYEES, REPRESENTATIVES, AGENTS, COUNSEL, BROKER, SALES AGENT, NOR ANY PARTNER, OFFICER, DIRECTOR, EMPLOYEE, TRUSTEE, SHAREHOLDER, PRINCIPAL, PARENT, SUBSIDIARY, AFFILIATE, AGENT OR ATTORNEY OF SELLER, ITS COUNSEL, BROKER OR SALES AGENT, NOR ANY OTHER PARTY RELATED 1N ANY WAY TO ANY OF THE FOREGOING (COLLECTIVELY, "SELLER'S REPRESENTATIVES") HAVE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PROPERTY OR ANY MATTERS AFFECTING THE PROPERTY, INCLUDING WITHOUT LIMITATION, THE PHYSICAL CONDITION OF THE PROPERTY, TITLE TO OR BOUNDARIES OF THE PROPERTY, PEST CONTROL, SOIL CONDITIONS, THE PRESENCE OR ABSENCE, LOCATION OR SCOPE OF ANY HAZARDOUS MATERIALS IN, AT, OR UNDER THE PROPERTY, COMPLIANCE WITH BUILDING, HEALTH, SAFETY, LAND USE OR ZONING LAWS, OTHER ENGINEERING CHARACTERISTICS, TRAFFIC PATTERNS AND ALL OTHER INFORMATION PERTAINING TO THE PROPERTY. BUYER MOREOVER ACKNOWLEDGES (A) THAT BUYER IS A SOPHISTICA"I'ED BUYER, KNOWLEDGEABLE AND EXPERIENCED IN THE FINANCIAL AND BUSINESS RISKS ATTENDANT TO AN INVESTMENT IN REAL PROPERTY AND CAPABLE OF EVALUATING THE MERITS AND RISKS OF ENTERING INTO THIS AGREEMENT AND PURCHASING THE PROPERTY, (B) THAT BUYER HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON ITS OWN (OR ITS EXPERTS') INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC AND LEGAL CONDITION OF THE PROPERTY, AND (C) THAT BUYER IS NOT RELYING UPON ANY REPRESENTATION OR WARRANTY CONCERNING THE PROPERTY MADE BY SELLER OR SELLER'S REPRESENTATIVES OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT. SELLER SHALL NOT HAVE ANY LIABILITY OF ANY KIND OR NATURE FOR ANY SUBSEQUENTLY DISCOVERED DEFECTS IN THE PROPERTY, WHETHER THOSE DEFECTS WERE LATENT OR PATENT. Buyer's Initials -8- IN WITNESS WHEREOF, intending to be legally bound, the parties have executed this Agreement as a sealed instrument as of the day and year first above written. BUYER CITY OF LINO LAKES By: Name: Title: SELLER COMCAST CCH SUBSIDIARY HOLDINGS, INC. By: Name: Title: JOINDER OF TITLE COMPANY For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned, the Title Company named in the annexed Agreement, hereby agrees to be bound by the provisions of the annexed Agreement relating to the holding and disbursement of all monies paid to the undersigned in escrow, and to disburse such sums strictly in accordance with the terms of such Agreement. Intending to be legally bound, the undersigned has caused this Joinder to be executed by its duly authorized representative as of the day of , 2016. TITLE COMPANY FIDELITY NATIONAL TITLE INSURANCE COMPANY By: Name: Title: EXHIBIT A LEGAL DESCRIPTION OF PARCEL The East 330.00 feet of the Southwest Quarter of the Southwest Quarter of Section 28, Township 31, Range 22, Anoka County, Minnesota Pin No. 28-31-22-33-0003 Exhibit A - 1 EXHIBIT A-1 SUBDIVISION PLAN MOB SHMS1011 -kw- CRY Or LIMO LAOS -c-BM OW 6111G+1 OMIT FINO Lam, ria 4 MON OW Mr." INAS �� * Sititgan. OVEI=row Mrtosatemonsempr dY WYf1111.YrYi. aYi'.=ms m..AmW. iimarptimirmmikomet. - yam. 4a 1. 1 iM Y T.ARaw W rge" Wi �Y�iat YiA`.RMrtiMf.:: iRi.FW6.. :Rlf"~V WW iR1.,ii YtlO 1011111116 PIPINOWINCIVIIN St UN* 1111..d. VIONY Sinleafal rissratormattautwertio 7= . rat Men X= Vressb i®B #.74#011.10.11,404 ia"Ntytitsi ..."""" 14 1 1take Ditite IC Sulk i t „mmusawa Exhibit A-1 — 1