HomeMy WebLinkAboutResolution 2011-008RESOLUTION NO 2011-008
A RESOLUTION APPROVING A PURCHASE OPTION WITH
LAKE ELMO BUSINESS PARK COMPANY FOR THE LOCATIO
OF AN EARLY CHILDHOOD AND FAMILY CENTER IN THE
CITY OF LAKE ELMO I
WHEREAS, Independent School District No. 834 has identified the need to
construct an early childhood education facility (the "Facility') within its boundaries to
serve the population within the District; and
WHEREAS, the District has identified certain realpropero) located in the City of
Lake Elmo as potential site for the Facility; and,
WHEREAS, the City is willing to extend its municipal sanitary sewer and water
systems to serve the Property, both as part of its long-term community planning and as
an incentive to the District to construct an early childhood education facility (the
"Facility') on the Property; and
WHEREAS, the City has negotiated an option agreement with respect to the
Properly and, subject to the terms set forth in the Purchase Option, is willing to purchase
the Property or convey the Purchase option to the District, at a price qf'$74,500 per
acre; and
WHEREAS, the parties desire to enter into an Option Contract to provide for the
purchase or conveyance of the purchase option of the property; and
WHEREAS, cities are authorized to enter into such contracts as contemplated in
Minnesota Statutes.
NOW, THEREFORL, BE IT RESOLVED, that the City Council of the City of
Lake Elmo does hereby approve an Option Contract with Lake Elmo Business Park
Company in the form attached herein, for purchase or conveyance of this option. for the
location of an Early Childhood and Family Center in the 00) of Lake Elmo.
BE IT FURTHER RESOLVED that the Option Contract is subject to such non-
substantive changes andlor other adjustments, to be made by the City Administrator and
GO; Attorney, as necessary to effect the intent Qf'the City Council under this agreement.
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BE IT FURTHER RESOL PED that the City Administrator and Mayor are
hereby directed to immediately execute such Option Agreement for, by and on behalf of
the City of Lake Elmo, Minnesota.
Sharon Lumb�.-/
City Clerk
Bruce A. Messelt
City Administrator
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Option Contract ("Agreement or "Option Contract") made and given this _ day of
, 2011 (the "Effective Date").
For and in consideration of the sum of One Thousand and No/ 100 Dollars ($1,000.00) ("Initial
Option Fee"), which the City of Lake Elmo, a Minnesota municipal 6orpordtion, ("Buyer")
shall within five (5) days after this Option Contract is fully executed, deliver to Lake Elmo
Business Park Company, a Minnesota partnership ("Seller"), Seller does hereby grant unto
Buyer or its Successor or Assigns, the exclusive right and option for a period commencing on
the date hereof and ending at 11:59 p.m. on March 15th, 2011, ("Termination Date") to
purchase all or any parcels of land lying and being in the City of Lake Elmo, in the County of
Washington and the State of Minnesota, as shown on Exhibit A attached and legally described
on Exhibit B attached hereto (the "Property").
However, this Option Agreement is subject to each of the terms and conditions hereinafter set
forth.
PURCHASE PRICE: The purchase price for the identified Lots are as
follows,
A. $1,000.00 Initial Option Fee which will be held and disbursed in accordance with
Agreement and if Buyer purchases any of the identified Lots, the Initial Option Fee
will be credited against the purchase price of the last Lots in the development.
B. Buyer agrees, subject to extension for delays in Seller's performance of its
obligations under this Agreement, that it must exercise its option rights on any or
all of the 4 Lots in the development as follows:
Lot 3, Block 2, Brookman 3rd Addition — by March 15th, 2011, with projected
closing on or before June 1, 2011.
Lot 2, Block 2, Brockman 3rd Addition — by March 15th, 2011, with projected
closing on or before June 1, 2011.
Lot 1, Block 2, Brookman 3rd Addition — by March 15th, 2011, with projected
closing on or before January 2nd, 2012.
Lot 1, Block 1, Brookman 3rd Addition — by March 15th, 2011, with projected
closing on or before January 2nd, 2012.
This option may be exercised as to one, more than one, or all of the Lots and will
not terminate by excercise of the option right as to less than all of the Lots.
2• FAILURE TO EXERCISE OPTION: Buyer shall have no obligation to
purchase any Lot under this Agreement, it being agreed by the parties hereto that
this is an Option Contract and not a purchase agreement.
3. MANNER OF PAYMENT: If Buyer exercises any option right to purchase a
Lot, the entire purchase price for any Lot or Lots shall be payable in cash or other
terms, as mutually determined and agreed upon. The purchase price for each Lot
shall be payable on the date ("Closing Date") the purchase of such Lot is closed.
4. CLOSING: The Closing Date for each Lot shall be a date specified by Buyer in
the notice delivered by Buyer to inform Seller that Buyer, or its Successor or
Assigns is exercising its option with respect to such Lots, which date shall be no
later than ninety (90) days after the date of such notice unless otherwise stated
herein, or such date is extended by the mutual agreement of Seller and Buyer. On
any Closing Date, Seller shall execute and deliver to Buyer the following:
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A. A Warranty Deed conveying the Lot or Lots purchased to Buyer, free and
clear of all liens, charges and encumbrances, except for Permitted
Exceptions as defined in Section 6 below.
B. All other documents which are necessary or desirable to convey the Lots
being purchased, including all documents required by Chicago Title
Insurance Company or any other title insurance in form acceptable to
Buyer and Buyer's Lender, if any.
The closing and delivery of all such documents shall take place at the office of
Chicago Title Insurance Company or at such other place as may be reasonably
specified by Buyer or its Successor or Assigns. Seller agrees to deliver possession
of the Lot or Lots purchased to Buyer on the Closing Date.
Buyer may terminate Purchase Agreement prior to closing of any identified
Lot if any of the following conditions apply:
A. A Phase I Environmental Survey conducted at Buyer's expense identifies
conditions making the site unacceptable for an Early Childhood and
Family Education Facility or general public/civic facility.
B. The Stillwater Area School District fails to secure approval from the State
of Minnesota for placement of an Early Childhood and Family Education
Facility on the site or fails to secure appropriate financing to construct
such facility.
C. The Buyer, or its Successor or Assigns, fails to acquire necessary zoning
and land use authority for construction of such facility or fails to secure
appropriate financing to execute this Agreement.
Buyer shall forfeit to Seller initial Option Fee should such termination occurs
prior to closing.
6. TITLE AND EXAMINATION: As quickly as reasonably possible after Final Acceptance
of this Purchase Agreement:
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A. Seller shall surrender any abstract of title and a copy of any owner's title insurance
policy for the property, if in Seller's possession or control, to Buyer or Buyer's
designated title service provider; and
B. Buyer shall obtain the title services determined necessary or desirable by Buyer or
Buyer's lender, including but not limited to title searches, title examinations,
abstracting, a title insurance commitment or an attorney's title opinion at Buyer's
selection and cost and provide a copy to Seller.
Seller shall use Seller's best efforts to provide marketable title by the date of closing.
Seller agrees to pay all costs and fees necessary to convey marketable title including
obtaining and recording all required documents, subject to the following:
In the event Seller has not provided marketable title by the date of closing, Seller
shall have an additional 30 days to make title marketable, or in the alternative,
Buyer may waive title defects by written notice to Seller. In addition to the 30-day
extension, Buyer and Seller may, by mutual agreement, further extend the closing
date. Lacking such extension, either party may declare this Purchase Agreement
canceled by written notice to the other party, or licensee representing or assisting
the other party, in which case this Purchase Agreement is canceled. If either party
declares this Purchase Agreement canceled, Buyer and Seller shall immediately
sign a Cancellation of Purchase Agreement confirming said cancellation and
directing all earnest money paid hereunder to be refunded to Buyer.
7. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
Seller represents, warrants and covenants to Buyer as follows:
A. Authority. This Agreement has been duly executed and delivered; any
closing documents to be signed by Seller will be duly executed and
delivered on each Closing Date; such execution, delivery and
performance by Seller do not and will not conflict with or result in a
violation of any judgment, order, or decrees of any court or arbiter to
which Seller is a party or by which it is bound; this Agreement and
those closing documents to be signed by Seller will contain the valid
and binding obligations of Seller, and be enforceable in accordance
with their terms.
B. Leases. As of the Effective Date and the Closing Date, the Property is
not, and. will not be, subject to any lease or occupancy agreement.
C. Special Assessments. Seller shall pay the outstanding balance due to the
City of Lake Elmo for all special assessments levied or pending against
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any Lot on the Closing Date for such Lot. Seller shall pay all availability
charges required for development. Buyer shall pay for SAC, WAC and
building permit charges.
D. Environmental Laws. Seller has no knowledge, after exercising due
diligence in reviewing its files, correspondence and other relevant
information concerning the Property, that any toxic or hazardous
substances or wastes, pollutants or contaminants (including, without
limitations, asbestos, area formaldehyde, the group of organic compounds
known as polychlorinated biphenyl's, petroleum products including
gasoline, fuel oil, crude oil and various constituents of such products, and
any hazardous substance as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C.
9601-9657, as amended) have been generated, treated, stored, released or
disposed of, or otherwise placed, deposited in or located in the Property,
nor does Seller have any knowledge, after exercising due diligence as
described above, or any activity having been undertaken on the Property
that would cause or contribute to (i) the Property becoming a treatment,
storage or disposal facility within the meaning of, or otherwise bring the
Property within the ambit of, the Resource Conservation and Recover Act
of 1976 ("RCRA"), 42 U.S.C. 6901 et seq., or any similar state law or
local ordinance, (ii) a release or threatened release of toxic or hazardous
wastes or substances, pollutants or contaminants from the Property within
the ambit of CERCLA or any similar state law or local ordinance, or (iii)
the discharge of pollutants or effluents into any water source of system,
the dredging or filling of any waters or the discharge into the air of any
emissions, that would require a permit under the Federal Water act, 33
U.S.C. 1251 et se ., or the Clean Air Act, 42 U.S.C. 7401 gLse ., or any
similar state law or local ordinance. After exercising due diligence as
described above, Seller knows of no substances or conditions in or on the
Property tat may support a claim or cause of action under RCRA,
CERCLA or any other federal, state or local environmental statutes,
regulations, ordinances or other regulatory requirements.
E. Rights of Others to Purchase Property. . Seller has not entered into any
other contracts for the sale of the Property, nor are there any rights of first
refusal or options to purchase the Property or any other rights of others
that might prevent the consummation of this Agreement.
F. Seller's Defaults. Seller is not in default concerning any of its obligations
or liabilities regarding the Property.
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G. FIRPTA. Seller is not a "foreign person," "foreign partnership," "foreign
trust" or "foreign estate" as those terms is defined in Section 1445 of the
Internal Revenue Code.
H. Proceedings. There are no claims, actions, suits, proceedings or
investigations pending or, to Seller's knowledge, threatened by any
governmental department or agency, or any corporation, partnership,
entity or person, which in any manner or to any extent may affect (i) the
Property, (ii) Seller's right, title and interest in and to any part or all of the
Property, or (iii) Seller's ability to vest in Buyer a fee simple ownership
interest in the Property free and clear of any and all liens, claims
encumbrances and rights of redemption except the Permitted Exceptions.
Access, The Property has public access by roadways duly dedicated and
accepted by the public bodies having jurisdiction thereof and said
roadways provide access to the public roadway system of the State of
Minnesota.
Wetlands, The Property is not in a designated wetland, flood plain or
flood insurance area.
K. Encroachments. Seller is aware of no encroachments on the property.
L. Well Abandoned. Prior to Closing, Seller shall take all actions which are
necessary to properly seal any wells which may be located on the Property
in accordance with Minnesota Statute and the rules adopted by the
Minnesota Commissioner of Health.
Seller will define, identify and hold Buyer, its successors and assigns,
harmless from and against any expenses or damages (including reasonable
attorneys' fees) that Buyer incurs because of the breach of any of the
above representations, warranties, or covenants whether such breach is
discovered before or after any Closing Date, and all expenses and
attorneys' fees incurred by Buyer in enforcing its right to defense,
indemnification and reimbursement. Each of the representations,
warranties and covenants herein contained shall survive each Closing and
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.
M. Seller shall convey, upon request by Buyer, all easements reasonably
necessary to extend trunk sewer and water to the lots without cost to the
City and the City shall provide sewer and water to the property lines,
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including Lot 1, Block 3, Brookman 3rd Addition (PIN 1302921210007)
and Lot 2, Block 3, Brookman 3rd Addition (PIN 1302921210016).
BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer represents, warrants and covenants to Seller as follows:
A. Buyer is duly organized and is in good standing under the laws of the
State of Minnesota; that Buyer has the requisite power and authority to
enter into the Agreement and the execution and delivery of this
Agreement has been duly authorized by all necessary action on the part of
Buyer.
B. Buyer agrees to initiate and use its best efforts to complete realignment of
current public right-of-way easement located between Lot 3, Block 2 and
Lot 1, Block 3, Brookman 3rd Addition to a mutually-agreed upon
alternative location.
C. Buyer agrees to limit local SAC and WAC charges, or any future initial
sewer and water service assessments, for all Lots not purchased by Buyer
under this Purchase Option, to that currently calculated for sewer and
water service to such Lots and included as exhibit C, including Lot 1,
Block 3, Brookman 3rd Addition (PIN 1302921210007) and Lot 2, Block
3, Brookman 3'd Addition (PIN 1302921210016).
D. Buyer agrees to imdemnify Seller from any future initial assessments for
provision of public parking on or adjacent to all Lots not purchased by
Buyer under this Purchase Option, including Lot 1, Block 3, Brookman 3rd
Addition (PIN 1302921210007) and Lot 2, Block 3, Brookman 3rd
Addition. For such consideration, Seller agrees to provision of necessary
additional utility, parking and public sidewalk/pathway easement and
consents to Buyer's utilization of reasonable financing tools, including but
not limited to Tax Increment Financing, to underake such public
improvements.
9. CONDITIONS. Seller's right to receive the Initial Option Fee from the Escrow
Agent is contingent upon each of the following:
A. Seller's delivery, promptly after the execution of this Agreement, to Buyer
or Buyer's Successor or Assigns of copies of all surveys, plans, designs,
environmental reports, governmental approvals and any documents
relating to the development or design or platting of the Property that
Seller has in its possession, if any;
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B. Buyer or Buyer's Successor or Assigns receiving and approving an
environmental study satisfactory to it acquired at Buyer's expense within
60 days of the date this agreement is signed by all parties.
C. Seller's delivery of an agreement in form acceptable to Buyer's or Buyer's
Successor's or Assigns' counsel which has been dully executed by the
holder of any mortgage against the Property, which agreement will
obligate any such mortgagee to deliver a release of its mortgage for any
property that is acquired by Buyer or Buyer's Successor or Assigns
pursuant to this Agreement.
D. Buyer, or Buyer's Successor or Assigns, and Seller agree to mutually and
affirmatively consider any lot line adjustments or replatting, at Buyers or
Buyer's Successor's or Assigns' expense, and as mutually beneficial to
effect exercise of this Purchase Option for the identified purposes and
uses.
If any of the forgoing conditions are not satisfied, Buyer or Buyer's Successor or
Assigns shall have the right to terminate this Option Contract and, in such case,
the Initial Option Fee shall be immediately returned to Buyer. Any and all of the
foregoing conditions are for the sole benefit of Buyer or Buyer's Successor or
Assigns and may be waived, in writing, by Buyer or Buyer's Successor or
Assigns.
10. PLAT APPROVAL. (Intentionally Deleted)
11. RIGHT OF ENTRY. Seller hereby grants Buyer or Buyer's Successor or
Assigns, and its agents the right of access onto the Property without charge and at
all reasonable times for the purpose of Buyers or Buyer's Successor or Assigns
investigating the physical condition thereof, including, with limitation,
topographic and soil conditions and for the purpose of making test pits, soil
borings, market and engineering studies, feasibility studies, environmental
investigations and any other test, studies or investigations of the Property. Buyer
or Buyer's Successor or Assigns shall immediately repair any damage to the
Property caused by such inspections and studies and shall indemnify and hold
Seller harmless from any loss, cost, damage or expense, including without
limitation, reasonable attorneys' fees, arising from or in connection with Buyer's
or Buyer's Successor or Assigns entry upon the Property for the foregoing
inspection, testing and related purposes.
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12• BUYER'S CLOSING DOCUMENTS. On the Closing Date for any Lot, Buyer,
or Buyer's Successor or Assigns, will execute and/or deliver to Seller the
following (collectively, the "Buyer's Closing Documents"):
A. The Purchase Price for the Lot in cash, certified funds or wire transfer.
B. Such documents as may be reasonably required by Title Insurer to record
the Warranty Deed and issue any title policies required by this Agreement.
13. CLOSING COSTS AND PR ORATIONS. Real estate taxes due and payable in
the year any Lot is purchased shall be prorated to the Closing Date between Seller
and Buyer, or Buyer's Successor or Assigns, with Buyer, or Buyer's Successor or
Assigns, paying all real estate taxes payable after the Closing Date and Seller
paying all real estate taxes against the Property through the Closing Date. At
closing Seller shall pay all special assessments against the Lot which are levied or
pending as of the Closing Date for any Lot and all deferred real estate taxes and
special assessments. Seller shall also pay the real estate transfer fees and the costs
of preparing the Commitment and performing any searches. Buyer, or Buyer's
Successor or Assigns, shall pay all of the recording fees and the premium for the
title policies. Buyer, or Buyer's Successor or Assigns, and Seller shall each pay
one-half of the Title Insurer's closing fees, with respect to the closing for any Lot,
14. CONDEMNATION. If, prior to the Closing Date, eminent domain proceedings
are commenced against all or any part of the Property, Seller shall immediately
give Buyer written notice of such fact and Buyer or Buyer's Successor or Assigns
shall have the right (to be exercised within thirty (30) days after receipt of Seller's
notice) to terminate this Agreement and recover all monies paid by Buyer or
Buyer's Successor or Assigns hereunder. If this Agreement is so terminated,
neither party will have further obligations under this Agreement and any monies
paid by Buyer hereunder shall be immediately returned to Buyer. If Buyer does
not terminate this Agreement, the purchase price for the last Lots to be
purchased by Buyer or Buyer's Successor or Assigns shall be reduced by any
condemnation awards paid to Seller prior to closing on such Lots and Seller
shall, at closing, assign to Buyer or Buyer's Successor or Assigns all of Seller's
right, title and interest in and to any award made or to be made in the
condemnation proceedings.
15. REMEDIES. If Buyer, or Buyer's Successor or Assigns, fails to purchase a Lot
in accordance with this Agreement, and Seller has fully performed all of
Seller's obligations under this Agreement, as and when due, Seller shall have
the right to terminate this Agreement by giving written notice to Buyer. If
Buyer, or Buyer's Successor or Assigns, fails to cure such failure within the
time period specified in Section 2 of this Agreement, this Agreement will
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terminate. Upon such termination, the Initial Option Fee and the Additional
Option Payment shall be delivered to Seller if such funds have not already
been paid to Seller and Seller shall retain such funds, and Buyer or Buyer's
Successor or Assigns, shall have no claim to such funds. The termination of
this Agreement and retention of such funds by Seller will be the sole remedy
available to Seller for such failure by Buyer, or Buyer's Successor or Assigns,
and Buyer, or Buyer's Successor or Assigns, will not be liable for damages or
specific performance, it being agreed by the parties hereto that this
Agreement is an Option Contract and not a purchase agreement. If Seller
defaults under this Agreement, Buyer, or Buyer's Successor or Assigns, shall
have the right to seek and recover damages from Seller for nonperformance or
to seek specific performance of this Agreement.
16. SURVIVAL. All of the representations, warranties and other terms of this
Agreement will survive and be enforceable after the closing on any Lot and
will not merge into any Warranty Deed for the Lot which will be delivered by
Seller to Buyer, or Buyer's Successor or Assigns.
17. NOTICES. All notices required or permitted to be given hereunder shall be
in writing and shall be deemed given upon (i) personal service, (ii) three (3)
business days following deposit in the United States first class mail, postage
prepaid, and addressed as set forth below, or (iii) facsimile transmission
(confirmation received) at the facsimile numbers listed below. Said addresses
and numbers may be changed by written notice in the manner described in
this Section.
If to Seller: Lake Elmo Business Park Property,
A Business Partnership
118 Main Street South
P.O. Box 36
Stillwater, MN 55082
If to Buyer: City of Lake Elmo
3800 Laverne Avenue North
Lake Elmo, MN 55042
18 CAPTIONS. The paragraph headings or captions appearing in this Agreement
have been inserted for convenience only, are not part of this Agreement and are
not to be considered in interpreting this Agreement.
19 ENTIRE AGREEMENT; MODIFICATION. This written Agreement
together with the Exhibits attached hereto constituted the completed agreement
between the parties and supersedes and prior to contemporaneous oral or written
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agreements between the parties regarding the Property. There are not verbal
agreements between the parties regarding the Property. There are not verbal
agreements that change this Agreement and on waiver of any of its terms will be
effective unless in a writing executed by the party against whom enforcement is
sought.
20 TIME. Where any date or time prescribed by this Agreement falls on a Saturday,
Sunday, or holiday, such date or time shall automatically be extended to the next
business day.
21 BINDING EFFECT. This Agreement binds and benefits the parties send their
successors and assigns.
22 CONTROLLING LAW. This Agreement has been made under the laws of the
State of Minnesota, and such laws will control its interpretation,
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the
date first above written.
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SELLER: Lake Elmo Business Park Properl
By
Its:
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-YZ Sharon Lumby, City Clerk
Attest
l "
ON
EXHIBIT B - Legal Description of Property
Lot 1, Block 2 of Brookman 3d Addition, Washington County, Minnesota.
Lot 2, Block 2 of Brookman 3d Addition, Washington County, Minnesota.
Lot 3, Block 2 of Brookman 3d Addition, Washington County, Minnesota.
Lot 1, Block I of Brookman 3d Addition, Washington County, Minnesota,
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EXHIBIT C - City of Lake Elmo SAC and WAC Charges
The Buyer agrees that the Seller will be charged no more than the following development
fees at the rates now in effect in the City, as set forth below:
City of Lake Elmo Sewer Availability Charge (SAC) $ 3,500 per REC/SAC Unit
City of Lake Elmo Water Availability Charge (WAC) $ 3,900 per REC Unit
The Buyer will charge Seller the Metropolitan Council sewer availability and water
availability charges (SAC and WAC) at the rates in effect at the time of connection.
The Buyer and the Seller mutually agree to limit imposition of WAC/SAC charges for
any/all future development on the Lots denoted in Section 8, Subsection C, as determined by the
following (current MCES Guidelines), or a MCES-approved pro-rated portion therof:
Assuming General Office Space or Library (both w/meeting rooms). I SAC -.:::: 1,650 s.f.
20.000 s.f building =::: 122 RECs
30,000 s.f building= IS RECs
40,000 s.f building -- 24 RECs -- Maximum REC charged per Lot
L, C_
Assuming General Office Space (no meeting rooms): I SAC:-:::: 2.400 s.f.
20,000 s.f building:::::: 8 RECs
30,000 s.f building:::::: 13 RECs,
40,000 s.f building =.-- 17 RECs - Maximum REC charged per Lot
In