HomeMy WebLinkAboutItem 15 - 2- Water Tower #4 Agreement VACANT LAND PURCHASE AGREEMENT
THIS AGREEMENT is made as of _________________________, 2015, between 711 Land
Holdings, LLC, a Minnesota limited liability company (“Seller”), and The City of Lake Elmo,
a Minnesota municipal corporation (“Buyer”).
In consideration of this Agreement, Seller and Buyer agree as follows:
1. Sale of Property. Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller,
the following property (“Property”):
1.1 Real Property. The real property located on Inwood Avenue a/k/a County
State Aid Highway 13, City of Lake Elmo, Washington County, Minnesota, as
further shown on the map attached hereto as Exhibit A and as further
legally described on the attached Exhibit B, together with all easements
and rights benefiting or appurtenant to said real property.
1.2 City of Lake Elmo, which has condemnation authority, as a condition of
approval of the Inwood PUD, has required Inwood 10, LLC/711 Land
Holdings, LLC to sell the City of Lake Elmo approximately 1.5 acres of
property for the purpose of building a municipal water tower.
2. Purchase Price and Manner of Payment. The total purchase price (“Purchase Price”)
to be paid for the Property is $165,000.00. The Purchase Price shall be payable as
follows:
2.1 $5,000.00 as earnest money (“Earnest Money”); and
2.2 $160,000.00 by certified check or wire transfer of funds on the Closing Date.
3. Contingencies. The obligations of Buyer under this Agreement are contingent
upon each of the following:
3.1 Representations and Warranties. The representations and warranties of
Seller contained in this Agreement must be true now and on the Closing
Date as if made on the Closing Date.
3.2 Title. Title shall have been found acceptable, or been made acceptable, in
accordance with the requirements and terms of the Title Examination
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Section below.
3.3 Access and Inspection. Seller shall allow Buyer, and Buyer’s agents, access
to the Property without charge and at all reasonable times for the purpose
of Buyer’s investigation and testing the same, including, without limitation,
soil tests to determine the adequacy of the soil for Buyer’s intended use of
the Property. Within ten (10) days of the acceptance of this Agreement,
Seller shall provide Buyer with copies of all blueprints, plans, specifications,
soil tests and surveys of the Property which are presently in Seller’s
possession. Seller shall make available to Buyer and Buyer’s agents, without
charge, all plans and specifications, records, inventories, permits and
correspondence.
3.4 Public Access. The Buyer shall establish future public street connection to
CSAH 13 with Washington County.
Seller shall have the right to use the public street access as depicted on the
attached Exhibit B (Road Parcel Description) and may connect a future
public street or private driveway to this access for the current agricultural
use of the property or for future subdivision of the property. Any use or
connection to said street must be a permitted use by city ordinance and
must be consistent with city zoning, subdivision regulations and city
engineering design standards.
3.5 Improvements. The Buyer and Sellers shall equally share costs, not paid by
Washington County, associated with any improvements to Inwood
Avenue/CSAH 13 as may be required for the public street access established
per Section 3.4, including, but not limited to turn lanes. The Buyer shall also
pay one-half of the cost of the first 100 feet of roadway East of Inwood
Avenue/CSAH 13 at the time said street is constructed. This obligation shall
continue as long as the Buyer owns or maintains the water tower on the
property.
3.6 Easements. The Seller shall grant the Buyer a temporary construction site
easement to enable the construction of the water tower. Easement shall be
acceptable to buyers.
3.7 Trunk Water Main. The Buyer shall install a trunk water main along Inwood
Avenue/CSAH 13 no later than December 1, 2016. However, failure to meet
this deadline shall not invalidate this Agreement.
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The trunk water main depicted on the attached Exhibit C is part of a planned
city project. For additional consideration, as set forth and as limited herein,
the Buyer shall not levy special assessments against Seller for the
construction of the water tower or Inwood Trunk Water main, and Seller
shall receive an exemption for up to 5 units of water lateral benefit charges,
which is currently $5,800 per REC unit or $29,000. Said exemption shall
apply to new commercial buildings developed within the Inwood Creek
development, that are adjacent to Inwood Avenue, and connect its private
water service directly to the Inwood Trunk Water main. All properties,
including the exemptions stated above, remain subject to all city standard
water availability charges and water connection charges.
If any contingency has not been satisfied on or before the date set forth above for
satisfaction of that contingency, then this Agreement may be terminated by written
notice from Buyer to Seller, which notice must be given no later than five (5) days
after the applicable satisfaction date. If no such notice is given with respect to any
contingency, such contingency shall be deemed waived. Closing shall be deemed
a waiver of all of the above contingencies. Upon termination, the Earnest Money,
and any interest accrued thereon, shall be released to Buyer, the parties shall sign
a cancellation of this Agreement, and neither party will have any further rights or
obligations to the other regarding this Agreement or the Property. All the
contingencies are specifically for the benefit of the Buyer, and the Buyer shall have
the right to waive any contingency by written notice to Seller.
4. Closing. The closing of the purchase and sale contemplated by this Agreement
(the “Closing”) shall occur on or before ______________________, 2015 (“Closing Date
at the office of Johnson/Turner Legal). Seller agrees to deliver possession of the
Property to Buyer immediately after Closing.
4.1 Seller’s Closing Documents. On the Closing Date, Seller shall execute and
deliver to Buyer the following (collectively, “Seller’s Closing Documents”), all
in form and content reasonably satisfactory to Buyer:
4.1.1 Deed. A Warranty Deed conveying the Property to Buyer, free and
clear of all encumbrances, except the Permitted Encumbrances
hereafter defined.
4.1.2 FIRPTA Affidavit. A non-foreign affidavit, properly executed,
containing such information as is required by IRC Section 1445(b)(2)
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and its regulations.
4.1.3 IRS Forms. A Designation Agreement designating the “reporting
person” for purposes of completing Internal Revenue Form 1099 and,
if applicable, Internal Revenue Form 8594.
4.1.4 Well Certificate. A completed Minnesota Well Disclosure Certificate
or a statement on the Warranty Deed that “The Seller certifies that
the Seller does not know of any wells on the described real property.”
4.1.5 Storage Tanks. If the Property contains or contained a storage tank,
an affidavit with respect thereto, as required by Minn. Stat. § 116.48.
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4.1.6 Individual Sewage Treatment Systems. If the Property contains an
individual septic system, a disclosure statement as required by Minn.
Stat. § 115.55.
4.1.7 Seller’s Affidavit. An affidavit in the form required by Title evidencing
the absence of bankruptcies, judgments or tax liens involving Seller
or parties with the same or similar names as Seller, and evidencing
the absence of mechanic’s lien rights affecting the Property,
unrecorded interests affecting the Property, persons in possession of
the Property, and known encroachments or boundary line questions
affecting the Property.
4.1.8 Other Documents. All other documents reasonably determined by
Buyer or Title to be necessary to transfer the Property to Buyer free
and clear of all encumbrances.
4.2 Buyer’s Closing Documents. On the Closing Date, Buyer will execute and
deliver to Seller the following (collectively, “Buyer’s Closing Documents”):
4.2.1 Purchase Price. Funds representing the Purchase Price and execution
and delivery of any required financing documents.
4.2.2 IRS Form. A Designation Agreement designating the “reporting
person” for purposes of completing Internal Revenue Form 1099 and,
if applicable, Internal Revenue Form 8594.
5. Prorations. Seller and Buyer agree to the following prorations and allocation of
costs regarding this Agreement:
5.1 Title Insurance and Closing Fee. Seller will pay all costs of the Title Evidence,
the cost of having a commitment for an ALTA Owner’s Policy of Title
Insurance for the Property (the “Title Policy”) (in the amount of the Purchase
Price) and the fees charged by the Title Company for any escrow required
regarding Buyer’s Objections. Buyer will pay the premium required for the
issuance of the Title Policy. Seller and Buyer will each pay one-half of the
fee charged by Title (as defined below) to conduct the Closing.
5.2 Deed Tax. Seller shall pay all State Deed Tax payable in connection with this
transaction. Buyer shall pay all Mortgage Registry Tax payable in connection
with Buyer’s financing, if any.
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5.3 Real Estate Taxes and Special Assessments. Real Estate Taxes payable in the
year in which Closing occurs shall be pro-rated based upon a calendar year
with Seller paying through the Date of Closing. Seller shall pay any
installments of special assessments payable with said real estate taxes.
Seller shall pay all other levied special assessments in full as of the Date of
Closing, and shall pay all special assessments which are pending as of the
Date of Closing. Seller’s provision for payment of a pending assessment
shall be made by payment into escrow with Title of one and one-half times
the estimated amount of the assessment, with the right to a refund of any
excess of the escrow.
5.4 Other Costs. All other operating costs of the Property shall be allocated
between Seller and Buyer as of the Closing Date, so that Seller pays that part
of operating costs payable through the Closing Date, and Buyer pays that
part of operating costs payable after the Closing Date.
5.5 Attorney’s Fees. Each of the parties will pay its own attorney’s fees, except
that a party defaulting under this Agreement or any Closing Documents will
pay the reasonable attorneys’ fees and court costs incurred by the non-
defaulting party in enforcing its rights hereunder.
6. Title Examination. Title Examination will be conducted as follows:
6.1 Seller’s Title Evidence. Seller shall, within twenty (20) days after the date of
this Agreement, furnish the following (collectively, “Title Evidence”) to Buyer:
(a) a commitment (“Title Commitment”) for an ALTA Owner’s Policy of Title
Insurance insuring title to the Property, deleting standard exceptions and
including affirmative assurance regarding zoning, contiguity, appurtenant
easements and such other matters as may be identified by Buyer, in the
amount of the Purchase Price, issued by Johnson/Turner Legal, (“Title”); (b)
a survey, paid for by Buyer, certified by a registered land surveyor and
certified to Buyer, Title and such other parties as Buyer may designate, and
showing the Property and location of all improvements and easements
thereon and otherwise complying with the requirements set forth in the
“Minimum Standard Requirements for ALTA/ACSM Land Title Surveys”
jointly established by ALTA and ACSM in 1992, and containing such other
information as Buyer or Buyer’s lender shall reasonably request.
6.2 Buyer’s Objections. Within twenty (20) days after receiving the last of the
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Title Evidence, Buyer will make written objections (“Objections”) to the form
and/or contents of the Title Evidence. Buyer’s failure to make Objections
within such time period will constitute waiver of Objections. Any matter
shown on such Title Evidence and not objected to by Buyer shall be a
“Permitted Encumbrance” hereunder. Seller will have thirty (30) days after
receipt of the Objections to cure the Objections, during which period the
Closing will be postponed, if necessary. Seller shall use its best efforts to
cure any Objections. To the extent an Objection can be satisfied by the
payment of money, Buyer shall have the right to apply a portion of the cash
payable to Seller at the Closing to satisfaction of such Objection, and the
amount so applied shall reduce the amount of cash payable to Seller at the
Closing. If the Objections are not cured within such 30-day period, Buyer
will have the option to do any of the following:
6.2.1 Extend the time period for Seller to cure the Objections by up to sixty
(60) days, at the end of which time Buyer may exercise any of the
remaining options set forth below.
6.2.2 Terminate this Agreement and receive a refund of the Earnest Money
and the interest accrued thereon, if any.
6.2.3 Withhold from the Purchase Price an amount which, in the
reasonable judgment of Title, is sufficient to assure cure of the
Objections. Any amount so withheld will be placed in escrow with
Title, pending such cure. If Seller does not cure such Objections
within sixty (60) days after such escrow is established, Buyer may then
cure such Objections and charge the costs of cure against the
escrowed amount. The parties agree to execute and deliver such
documents as may be reasonably required by Title, and Seller agrees
to pay the charges of Title, to create and administer the escrow.
6.2.4 Waive the Objections and proceed to close.
7. Subordination. This Purchase Agreement, and the rights of the Buyer in and to the
real property which is the subject hereof, is specifically made subject and
subordinate to the lien of any mortgage(s) or other encumbrance(s) (“Liens”) made
or given by Seller, whether prior to or after the date of this Purchase Agreement,
and shall, prior to Closing and payment by Buyer of the Purchase Price, remain
subordinate and junior to all such Liens as if the same had been duly executed and
acknowledged by the Seller, and recorded, prior to the date of this Purchase
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Agreement. At Closing, Seller will be responsible, at its sole expense, for obtaining
any release necessary to convey fee title to the Property to Buyer free and clear of
any such Liens.
8. Operation Prior to Closing. During the period from the date of Seller’s acceptance
of this Agreement to the Closing Date (the “Executory Period”), Seller shall operate
and maintain the Property in the ordinary course of business in accordance with
prudent, reasonable business standards, including the maintenance of adequate
liability insurance and insurance against loss by fire, windstorm and other hazards,
casualties and contingencies, including vandalism and malicious mischief. Seller
shall execute no contracts, leases or other agreements regarding the Property
during the Executory Period that are not terminable on or before the Closing Date,
without the prior written consent of Buyer, which consent may be withheld by
Buyer at its sole discretion.
9. Representations and Warranties by Seller. Seller represents and warrants to Buyer
as follows:
9.1 Existence; Authority. If Seller is a corporation, limited liability company or
partnership, Seller is duly organized, qualified and in good standing, and
has the requisite power and authority to enter into and perform this
Agreement and the Seller’s Closing Documents; such documents have been
duly authorized by all necessary action; such documents are valid and
binding obligations of Seller, and are enforceable in accordance with their
terms.
9.2 Environmental Laws. No toxic or hazardous substances or wastes, pollutants
or contaminants (including, without limitation, asbestos, urea formaldehyde,
the group of organic compounds known as polychlorinated biphenyls,
petroleum products including gasoline, fuel oil, crude oil and various
constituents of such products, and any hazardous substance as defined in
any state, local or federal law, regulation, rule, policy or order relating to the
protection of the environment) (collectively, “Hazardous Substance”) have
been generated, treated, stored, transferred from, released or disposed of,
or otherwise placed, deposited in or located on the Property, nor has any
activity been undertaken on the Property that would cause or contribute to
the Property becoming a treatment, storage or disposal facility within the
meaning of, or otherwise bring the Property within the ambit of, any state,
local or federal law, regulation, rule, policy or order relating to the
protection of the environment. There has been no discharge, release or
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threatened release of Hazardous Substances from the Property. There are
no Hazardous Substances or conditions in or on the Property that may
support a claim or cause of action under any state, local or federal law,
regulation, rule, policy or order relating to the protection of the
environment. The Property is not now, and to the best knowledge of Seller
never has been, listed on any list of sites contaminated with Hazardous
Substances, nor used as landfill, dump, disposal or storage site for
Hazardous Substances.
9.3 FIRPTA. Seller is not a “foreign person,” “foreign partnership,” “foreign trust”
or “foreign estate” as those terms are defined in Section 1445 of the Internal
Revenue Code.
9.4 Proceedings. There is no action, litigation, investigation, condemnation or
proceeding of any kind pending or threatened against Seller or any portion
of the Property.
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9.5 Wells and Individual Sewage Treatment Systems. Seller does not know of
any “Wells” on the Property within the meaning of Minn. Stat. § 103I or
“Individual Sewage Treatment Systems” on the Property within the meaning
of Minn. Stat. § 115.55. This representation is intended to satisfy the
requirements of those statutes.
9.6 Storage Tanks. No above ground or underground tanks are located on or
about the Property, or have been located on or about the Property and have
subsequently been removed or filled.
9.7 Reports. Seller has no environmental reports or studies relating to the
Property, except those which have been or will be delivered to Buyer as
required under this Agreement.
Seller will indemnify Buyer, its successors and assigns, against, and will hold Buyer,
its successors and assigns, harmless from, any expenses or damages, including
reasonable attorneys’ fees, which Buyer incurs because of the breach of any of the
above representations or warranties, whether such breach is discovered before or
after Closing. Consummation of this Agreement by Buyer with knowledge of any
such breach by Seller will not constitute a waiver or release by Buyer of any claims
due to such breach.
10. Assignment. Either party may assign its rights under this Agreement with the prior
written consent of the other party, before or after the Closing. Any such
assignment will not relieve such assigning party of its obligations under this
Agreement.
11. Survival. All of the terms of this Agreement and warranties and representations
herein contained shall survive and be enforceable after the Closing.
12. Notice. Any notice to be given by a party hereto shall be personally delivered, sent
by certified mail, or sent via a nationally recognized courier service that issues a
receipt, to the other party at the address set forth for that party below (or to such
other address as may be designated by notice to the other party), and shall be
deemed given upon the earlier of personal delivery, two days after the date
postmarked, two (2) days after depositing with such courier for delivery or upon
the refusal to accept such service.
Address for Notice to Seller:
95 South Owasso Boulevard West
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Little Canada, MN 55117
With a Copy to: Warren Peterson
55 East 5th Street
St. Paul, MN 55101
Address for Notice to Buyer: City of Lake Elmo
Attn: Dean Zuleger
City Administrator
3800 Laverne Avenue North
Lake Elmo, MN 55042
With a Copy to: David K. Snyder
Michele R. Loughrey
Johnson/Turner Legal
56 E. Broadway Avenue, Suite 206
Forest Lake, MN 55025
15. Miscellaneous. The paragraph headings or captions appearing in this Agreement
are for convenience only, are not a part of this Agreement. This Agreement
constitutes the complete agreement between the parties and supersedes any prior
oral or written agreements between the parties regarding the Property. There are
no verbal agreements that change this Agreement, and no waiver of any of its
terms will be effective unless in a writing executed by the parties. This Agreement
binds and benefits the parties and their successors and assigns, and has been made
under the laws of the State of Minnesota and such laws will control its
interpretation.
16. Remedies. The following shall be the exclusive remedies available to the parties
under this agreement:
16.1 If Buyer defaults under this Agreement due to no fault of Seller, then Seller
may terminate this Agreement by providing at least thirty days’ prior written
notice to Buyer. If Buyer fails to cure Buyer’s default within such thirty-day
period, then at Seller’s election (i) this Agreement shall thereupon be
terminated, and Seller shall retain the Earnest Money as liquidated damages;
or (ii) Seller may seek specific performance of this Agreement by Buyer.
16.2 If Seller defaults under this Agreement due to no fault of Buyer, then
Buyer may terminate this Agreement by providing at least thirty (30) days’
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prior written notice to Seller. If Seller fails to cure Seller’s default within such
thirty-day period, then at Buyer’s election (i) this Agreement shall thereupon
be terminated, and Buyer shall be entitled to a refund of all Earnest Money,
together with accrued interest thereon, if any; or (ii) Buyer may pursue such
other actions or remedies as are available to it, including its right to
damages against Seller for its failure to perform, or for misrepresentation or
for specific performance of this Agreement by Seller.
16.3 Any suit by a party hereto which is described above and is based upon the
other party’s default must be commenced no later than one hundred twenty
(120) days after the date of the occurrence of the default. The said 120-day
limitation shall not apply to claims for indemnification otherwise provided
for in this agreement.
17. Severability. In case any one or more of the provisions of this Agreement shall be
held to be invalid, illegal or unenforceable, such holding shall not affect the other
provisions of this Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
18. Business Days. In the event any deadline or performance date set forth in this
Agreement falls on a Saturday, Sunday or legal holiday in the State of Minnesota,
such deadline or performance date shall be deemed to be postponed to the next
business day thereafter.
Seller and Buyer have executed this Agreement as of the date first written above.
SELLER: BUYER:
711 LAND HOLDINGS, LLC THE CITY OF LAKE ELMO
By: By:
Its: Its:
EXHIBIT A
Map of Property
EXHIBIT B
Legal Description
Proposed Water Tower Description:
The north 250.00 feet of the south 290.00 feet of the west 310.00 feet of the Northwest
Quarter of the Southeast Quarter of Section 28, Township 29 North, Range 21 West,
Washington County, Minnesota, which lies easterly of the east right of way of County
State Aid Highway No. 13 per WASHINGTON COUNTY HIGHWAY RIGHT OF WAY PLAT
NO. 43.
AND
Proposed Road Description:
The south 40.00 feet of the west 310.00 feet of the Northwest Quarter of the Southeast
Quarter and the north 40.00 feet of the west 310.00 feet of the Southwest Quarter of the
Southeast Quarter, all in Section 28, Township 29 North, Range 21 West, Washington
County, Minnesota, which lies easterly of the east right of way line of County State Aid
Highway No. 13 per WASHINGTON COUNTY HIGHWAY RIGHT OF WAY PLAT NO. 43.
EXHIBIT C
Trunk Water Main Map