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HomeMy WebLinkAbout2016-010 Council Ordinances1St Reading: 8/ 2 2/ 2 01 6 Publication: 9/ 2 0/ 2 01 6 2nd Reading: q/ 1 2/9016 Effective: 1 n/ 2 0/2016 CITY OF LINO LAKES ORDINANCE NO. 10-16 ORDINANCE APPROVING SALE OF LAND TO DUPONT HOLDINGS, LLC The City Council of Lino Lakes ordains: Section 1. Property. The City is the fee owner of the real 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 Section 2. Findings. 1. City (Seller) and Dupont Holdings, LLC (Buyer) entered into a Development Agreement and Planned Unit Development Agreement dated May 6, 2016, for the Saddle Club Second Addition; and 2. a condition of the Development Agreement is that Buyer acquire fee simple title to the referenced Property from the Seller in order to install road and utility improvements. 3. City and Seller entered into a Land Acquisition Escrow Agreement dated May 11, 2016, whereby buyer deposited with the Seller certified funds (the "Escrowed Funds") for purchase of the Property. Section 3. Easements Easements in gross across the entire Property for right-of-way, utilities (water and sanitary sewer) and drainage and utilities (storm water) shall be provided on the property. As part of any subsequent platting process for the Property, such easements shall be dedicated to the City in the locations where the right-of-way and the water, sanitary sewer storm sewer systems are constructed, in the size and shape as is customary for Lino Lakes, and the easements in gross shall be vacated by the City. Section 4. Authorization The city council of the City approves the sale of the property to Dupont Holdings, LLC. 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 sell the Property. Proceeds from the sale of the Property shall be used in accordance with the requirements of the city charter. Section 4. Effective Date. This ordinance shall be in full force and effect from and after 30 days following its passage and publication, in accordance with section 3.09 of the city charter. Adopted by the Lino Lakes City Council this 12th day of September, 2016. The motion for the adoption of the foregoing ordinance was introduced by Council Member Maher and was duly seconded by Council Member Rafferty and upon vote being taken thereon, the following voted in favor thereof: _Maher wing votea agaaihstNsamehey, Kusterman, Rein none ATTEST: Jud' ne Bartell, Cit Jeff Reine , Mayor CITY COUNCIL AGENDA ITEM 6E STAFF ORIGINATOR: Michael Grochala, Community Development Director MEETING DATE: September 12, 2016 TOPIC: Consider 2nd Reading of Ordinance 10-16, Approving Sale of Land to Dupont Holdings, LLP. VOTE REQUIRED: 3/5 INTRODUCTION Staff is requesting City Council approval of the sale of 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. The City Council approved the acquisition of the Comcast property at the August 22, 2016 meeting in the amount of $100,000. In accordance with the escrow agreement the funds equal to the purchase price have been placed into escrow with the City. The first reading of Ordinance No. 10-16 was also held on the same date. RECOMMENDATION Staff is recommending approval of the 2nd Reading of Ordinance No. 10-16. ATTACHMENTS 1. Ordinance No. 10-16 2. Purchase Agreement with Dupont Holdings, LLP PURCHASE AGREEMENT This Agreement is entered into by and between the City of Lino Lakes, a Minnesota municipal corporation ("Seller"), and Dupont Holdings, LLC, a Minnesota limited liability company ("Buyer"). In consideration of the Purchase Price, the mutual covenants set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows: 1. EFFECTIVE DATE. The effective date of this Agreement is (the "Effective Date"). 2. SALE OF PROPERTY. Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller, the Property, legally described as follows: 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 further identified by Anoka County by the following property identification number: [PID not yet assigned] 3. PURCHASE PRICE. The purchase price for the Property is $100,000.00 (the "Purchase Price"). 4. EARNEST MONEY. Upon execution of this Purchase Agreement, Buyer must deposit the full Purchase Price of $100,000.00 with the Seller to be held in escrow until closing. The deposit shall be by wire transfer or delivery of a certified check. a. If Buyer does not deposit the full Purchase Price as required above, then Seller may terminate this Agreement by written notice to Buyer; provided, however, if Buyer deposits the Purchase Price with Escrow Agent before Seller exercises Seller's right to terminate, Seller's right to terminate is extinguished. b. At Closing, the funds deposited in escrow with Seller shall be released from escrow and disbursed to Seller. 5. SURVEY. Seller shall provide the April 1, 2016, minor subdivision survey obtained from E.G. Rud & Sons, Inc. to Buyer upon execution of this Purchase Agreement. 6. TITLE COMMITMENT. a. Seller makes no representations or warranties with respect to the status of title to the Property. Buyer obtained a title commitment from Landtitle dated March 31, 2016 (LT File No. 535453), and has no objections to title. 7. RIGHT OF ENTRY. After Seller obtains title to the Property and Buyer has deposited the Purchase Price with Seller, Buyer (and its employees, agents, and contractors) may enter the Property for the purpose of conducting soil tests, environmental tests and additional survey work, subject to the following conditions: a. Upon the earlier of the date one week after Buyer's completion of its activities on the Property or the date one week after the termination of this Agreement, if either Seller or Buyer terminate this Agreement in accordance with the provisions hereof prior to Closing, Buyer must repair and or restore any damage Buyer or its employees, agents or contractors cause to the Property and remove any personal property, refuse or debris Buyer or its employees, agents or contractors brought onto or authorized third parties to bring onto the Property. b. Buyer must defend and indemnify Seller from and against and hold Seller harmless Seller from all "Claims," as defined in Section 10, arising out of, resulting from or relating to any loss of or damage to any property or business or out of any injury to or death of any person, if the loss, damage, injury, or death arises or is alleged to arise either directly or indirectly and either wholly or in part from: (a) any action or omission of Buyer or its employees, agents, or contractors, while on the Property pursuant to this Section; or (b) actions or omissions of Buyer or Buyer's employees, agents, or contractors that cause or result in the release of any Hazardous Substance onto the Property or onto other property. c. Buyer must comply with and shall cause it employees, agents, and contractors to comply with all applicable laws, while on the Property. d. Buyer may not commence any environmental testing on the Property until Buyer submits a work plan for such testing to Seller and Seller approves the work plan, in writing. Seller may not unreasonably withhold, condition or delay Seller's approval of a work plan. e. Buyer must, promptly and without demand from Seller, provide Seller with true and complete copies of all draft and final reports relating to Buyer's geotechnical and environmental investigations and testing of the Property including, without limitation, any reports relating to any Phase I Environmental Site Assessment of the Property. f. The cost of any test or additional survey work will be borne solely by Buyer. 8. PROPERTY SOLD AS IS. Subject to Buyer's right to terminate this Agreement pursuant to Section 9, Buyer agrees to accept the Property in its current condition, including, without limitation, its current environmental and geological condition, and in an "AS -IS" and with "ALL FAULTS" condition. Buyer's payment of the Purchase Price at Closing constitutes Buyer's acknowledgment and agreement that: 2 a. Seller has not made any written or oral representations or warranties of any kind with respect to the Property (including without limitation express or implied warranties of title, merchantability, or fitness for a particular purpose); b. Buyer has not relied on any written or oral representation or warranty made by Seller, its agents or employees with respect to the condition or value of the Property; c. Buyer has had an adequate opportunity to inspect the condition of the Property, including without limitation any environmental testing, and to inspect documents applicable thereto, and Buyer is relying solely on such inspection and testing; and d. The condition of the Property is fit for Buyer's intended use. e. Buyer accepts all risk of Claims (including without limitation all Claims under any Environmental Law and all Claims arising at common law, in equity or under a federal, state or local statute, rule or regulation) whether past, present or future, existing or contingent, known or unknown, arising out of, resulting from or relating to the condition of the Property, known or unknown, contemplated or uncontemplated, suspected or unsuspected, including without limitation the presence of any Hazardous Substance on the Property, whether such Hazardous Substance is located on or under the Property, or has migrated from or to the Property. 9. INSPECTION. a. Buyer has inspected the Property and determined that the condition of the Property is suitable to Buyer's intended use. 10. DEFINITIONS. As used in this Agreement: "Claim" or "Claims" means any and all liabilities, suits, claims, counterclaims, causes of action, demands, penalties, debts, obligations, promises, acts, fines, judgments, damages, consequential damages, losses, costs, and expenses of every kind (including without limitation any attorney's fees, consultant's fees, costs, remedial action costs, cleanup costs and expenses which may be related to any claims). "Environmental Law" means the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Federal Water Pollution Control Act (the Clean Water Act), 33 U.S.C. § 1251 et seq. the Clean Air Act, 42 U.S.C. § 7401 et seq., and the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., all as amended from time to time, and any other federal, state, local or other governmental statute, regulation, rule, law or ordinance dealing with the protection of human health, safety, natural resources or the environment now existing or hereafter enacted. 3 "Hazardous Substance" or "Hazardous Substances" means any pollutant, contaminant, hazardous substance or waste, solid waste, petroleum product, distillate, or fraction, radioactive material, chemical known to cause cancer or reproductive toxicity, polychlorinated biphenyl or any other chemical, substance or material listed or identified in or regulated by any Environmental Law. 11 RELEASE. Buyer, for itself, its directors, officers, stockholders, divisions, agents, affiliates, subsidiaries, predecessors, successors, and assigns and anyone acting on its behalf or their behalf hereby fully releases and forever discharges Seller from any and all Claims (including without limitation all Claims arising under any Environmental Law and all Claims arising at common law, in equity or under a federal, state or local statute, rule or regulation), past, present and future, known and unknown, existing and contingent, arising out of, resulting from, or relating to the condition of the Property, and Buyer hereby waives any and all causes of action (including without limitation any right of contribution) Buyer had, has or may have against Seller and anyone acting on its behalf with respect to the condition of the Property, whether arising at common law, in equity or under a federal, state or local statute, rule or regulation. The foregoing shall apply to any condition of the Property, known or unknown, contemplated or uncontemplated, suspected or unsuspected, including without limitation the presence of any Hazardous Substance on the Property, whether such Hazardous Substance is located on or under the Property, or has migrated from or to the Property. 12. INDEMNITY. Buyer agrees to indemnify, hold harmless and defend Seller or anyone acting on its behalf for, from and against any and all Claims (including without limitation all Claims arising under any Environmental Law and all Claims arising at common law, in equity or under a federal, state or local statute, rule or regulation) past, present and future, existing and contingent, known and unknown arising out of, resulting from, or relating to the condition of the Property. The foregoing shall apply to any condition of the Property, known or unknown, contemplated or uncontemplated, suspected or unsuspected, including without limitation the presence of any Hazardous Substance on the Property, whether such Hazardous Substance is located on or under the Property, or has migrated from or to the Property, regardless of whether the foregoing condition of the Property was caused in whole or in part by the Seller's actions or inactions. 13. NOTICES. Notices permitted or required by this Agreement must be in writing and shall be deemed given when delivered in legible form to the party to whom addressed. Notices may be sent by certified mail, fax or e-mail. Notices are effective two business days after they are mailed via certified mail, return receipt requested or, if delivered in any other manner, when the party to whom the notice is directed actually receives the notice. If delivered at the Closing, a notice shall be deemed given when hand -delivered to the party's representative at the Closing. The business addresses of the parties are as follows: Seller: Director of Community Development City of Lino Lakes 600 Town Center Parkway 4 Buyer: Lino Lakes, MN 55014 Marcel Eibensteiner Dupont Holdings, LLC 1000 County Road West, Suite 150 Shoreview, MN 55126 Notices not given in the manner or within the time limits set forth in this Agreement are of no effect and may be disregarded by the party to whom they are directed. 14. CLOSING. This transaction shall close on , 2016, or on such earlier date as Seller and Buyer may establish by mutual, written agreement. The Closing shall take place at a location the parties mutually agree upon prior to such date. a. Seller's Obligations at Closing. At Closing, Seller must deliver to Escrow Agent, for delivery to Buyer: i. A warranty deed, duly executed and acknowledged on behalf of the City conveying 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) Matters that would be disclosed by an accurate survey of the Property; and (D) any defects or encumbrances on title to which Buyer has not objected; ii. A certified copy of a duly adopted City Ordinance and Resolution authorizing Seller's sale of the Property to Buyer; and iii. Seller's affidavits, well disclosure certificate (if required), settlement statement approved by Seller and Buyer, and any other documents required for the closing. b. Buyer's Obligations at Closing. At Closing, Buyer must: i. Wire Transfer (or deliver a certified check in) an amount Buyer must pay or will receive pursuant to Section 14(c), for disbursement to Seller and others pursuant to this Agreement and the Settlement Statement; and ii. File or cause Escrow Agent to file an Electronic Certificate of Real Estate Value. c. Closing Costs. i. At Closing, the following Seller closing costs and expenses must be paid from the Purchaser Price or, if the Purchase Price is not sufficient, paid by Seller: 5 1. Seller's portion of the prorated property taxes. 2. Seller's own attorney's fees. 3. One-half the cost of any closing fees. 4. State deed tax. 5. The cost of providing Title Commitment as prescribed in Section 6. 6. The cost of providing the April 1, 2016, survey. ii. At Closing Buyer must pay the Purchase Price to Seller and the following costs and expenses: 1. Buyer's portion of prorated property taxes. 2. Buyer's own attorney's fees. 3. Documentary and recording fees for the deed(s). 4. One-half the cost of any closing fees. 5. The cost of the owner's title insurance policy if Buyer elects to purchase an Owner's title insurance policy. d. Possession. Seller must deliver possession of the Property to Buyer at Closing. 15. REAL ESTATE BROKERS. Seller and Buyer represent and warrant to each other that they have dealt with no brokers, real estate agents, finders or the like in connection with this transaction. Seller and Buyer agree to indemnify each other and to hold each other harmless against all claims, damages, costs or expenses of or for any broker's fees or commissions resulting for their actions or agreements regarding the execution or performance of this Agreement, other than the fees payable to Seller's Broker, and will pay all costs of defending any action or lawsuit brought to recover any such fees or commissions incurred by the other party, including reasonable attorney's fees. 16. ASSIGNMENT. This Agreement may not be assigned without the written consent of the non -assigning Party. 17. THIRD PARTY BENEFICIARY. There are no third party beneficiaries of this Agreement, intended or otherwise. 18. JOINT VENTURE. Seller and Buyer, by entering into this Agreement and completing the transactions described herein, shall not be considered joint venturers or partners. 19. CAPTIONS. The paragraph headings or captions appearing in this Agreement are for convenience only, are not a part of this Agreement, and are not to be considered in interpreting this Agreement. 20. ENTIRE AGREEMENT / MODIFICATION. This written Agreement, and the related Development Agreement, if any, constitutes the complete agreement between the parties and supersedes any prior oral or written agreements between the parties regarding the 6 Property. There are no verbal agreements that change this Agreement and no waiver or modification of any of its terms will be effective unless in writing executed by the parties. In the event the terms of this Agreement conflict with the terms of the Development Agreement, the latter shall control. 21. BINDING EFFECT. This Agreement binds and benefits the Parties and their successors and assigns. 22. CONTROLLING LAW. This Agreement is made under the laws of the State of Minnesota and such laws will control its interpretation. 23. REMEDIES. a. If Buyer fails to perform any of the terms or conditions of this Agreement within the specified time limits, Seller may declare this Agreement terminated pursuant to Minnesota Statutes section 559.21. Seller's sole remedy in the event of Buyer's default is retention of the Purchase Price, unless Buyer defaults under Section 7 or 12 of this Agreement, in which case Seller may retain the Purchase Price or suspend the performance of its obligations under this Agreement and commence an action in Anoka County District Court to recover its actual damages arising from the default. b. If Seller fails to perform any of the terms or conditions of this Agreement within the specified time limits, Buyer may, as its sole remedy, declare this Agreement terminated in which case Seller shall refund the Purchase Price to Buyer, or, in the alternative, Buyer may have this Agreement specifically enforced. Buyer waives all claims for consequential damages against Seller based on Seller's breach or alleged default hereunder. 24. WAIVER. Failure of Seller or Buyer to insist upon the performance of any of the covenants, agreements and/or conditions of this Agreement or to exercise any right or privilege herein shall not be deemed a waiver of any such covenant, condition or right. 25. SURVIVAL OF TERMS AND CONDITIONS. The terms and conditions of this Agreement shall survive and be in full force and effect after the delivery of the deed, and shall not be deemed to have merged therein. 26. SEVERABILITY. Each provision of this Agreement shall apply to the extent permitted by applicable law and is intended to be severable. If any provision is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the legality or validity of the remainder of the Agreement. 27. CONSTRUCTION. The Parties acknowledge that this Agreement was initially prepared by Seller solely as a convenience and that all Parties and their counsel hereto have read and full negotiated all the language used in this Agreement. The Parties acknowledge that because all Parties and their counsel participated in negotiating and 7 drafting this Agreement, no rule of construction shall apply to this Agreement to construe ambiguous or unclear language in favor of or against any Party. 28. COUNTERPARTS; DIGITAL COPIES. This Agreement may be executed in any number of counterparts and the signature pages of the separate counterparts combined into a single copy of this Agreement which will then constitute a fully executed version of this Agreement. A facsimile, .pdf file or digital copy of a signed counterpart or of an assemblage of counterparts of this Agreement shall be deemed to be an original thereof. 29. EASEMENTS. In consideration of the sale of this Property, Buyer agrees to provide the Seller with easements in gross across the entire Property for right-of-way, utilities (water and sanitary sewer) and drainage and utilities (storm water). Said easements shall either be reserved to Seller within the warranty deed or contemporaneously provided by Buyer to Seller in a separate easement document. As part of any subsequent platting process for the Property, such easements shall be dedicated to the City in the locations where the right-of-way and the water, sanitary sewer storm sewer systems are constructed, in the size and shape as is customary for Lino Lakes, and the easements in gross shall be vacated by the City. SELLER: The City of Lino Lakes, Minnesota By: Jeff Reinert, Mayor ATTEST: By: Julie Bartell, City Clerk BUYER: Dupont Holdings, LLC Dated: , 2016 By: Dated: , 2016 Marcel Eibensteiner Its: 8