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Purchase Agreement for Bester PropertyCITY OF ROSEMOUNT EXECUTIVE SUMMARY FOR ACTION City Council Meeting Date December 21, 2004 AGENDA ITEM: Purchase Agreement for Bester Property AGENDA SECTION: CONSENT PREPARED BY: Dan Schultz, Parks and Recreation Director AGE P 0 P �f ATTACHMENTS: Proposed Purchase Agreement and Map APPROVED BY: RECOMMENDED ACTION: Motion to approve attached purchase agreement for the purchase of 1 53 acres of land currently owned by Earl Bester ACTION: ISSUE As part of the proposed Wiklund Conservation Easement purchase, there needs to be legal access to the conservation easement The Wiklund property does not have any frontage or current legal access to Bacardi Avenue The property between Bacardi Avenue and the Wiklund property is owned by Earl Bester If we do not get access to the Wiklund Property, we will not be able to close on the Wiklund Conservation Easement BACKGROUND Staff has been working with Earl Bester and his attorney to gain the necessary access to the Wiklund property to move forward with the Wiklund Conservation Easement Staff has discussed a number of options for gaining access to the proposed conservation easement including Mr Bester donating easements, selling easements, selling the land, dedicating the land as pre -park dedication, etc Mr Bester's attorney has informed staff that Mr Bester preferred to sell the land to the City Based on discussion with the Council at the October 28, 2004, work session, our City Attorney has drafted a purchase agreement based on the appraisal the DNR had performed on the Wiklund property The appraisal estimated the value at $33,792 per acre and the City has proposed purchasing the 1 53 acres from Mr Bester for a total of $51,714 Staff is recommending the City use Park Improvement Funds for the purchase SUMMARY Staff is recommending the City Council approve the attached purchase agreement for the City's purchase of 1 53 acres from Mr Bester This purchase agreement does include a contingency of the City participating in the purchase of the Wiklund Conservation Easement and other items recommended by the City Attorney PURCHASE AGREEMENT 1. PARTIES: This Purchase Agreement is made this day of 2004, by and between Earl Bester "Seller and City of Rosemount, a public body corporate and politic under the laws of the State of Minnesota ("Buyer') 2. SALE OF PROPERTY: Seller is the owner of that certain real estate (the "Property legally described on Attachment One, attached hereto and hereby made a part hereof 3. OFFER/ACCEPTANCE: In consideration of the mutual agreements herein contained, Buyer offers and agrees to purchase and Seller agrees to sell and hereby grants to Buyer the exclusive right to purchase the Property, together with all appurtenances, including, but not limited to, plants, shrubs, trees, and grass 4. PERSONAL PROPERTY INCLUDED IN SALE: There are no items of personal property or fixtures being sold 'by Seller 5. PURCHASE PRICE AND TERMS: A PURCHASE PRICE: The total Purchase Price for the real estate included in this sale is Fifty -one thousand, seven hundred fourteen dollars ($51,714 00) B TERMS: (1) AMOUNT DUE SELLER Buyer agiees to pay by check on the Closing Date Fifty -one thousand, seven hundred fourteen Dollars (S51,714), according to the terms of this Purchase Agreement (2) DEED /MARKETABLE TITLE Subject to performance by Buyer, Seller agrees to execute and deliver a Warranty Deed conveying marketable title to the Property to Buyer, subject only to the following exceptions a Building and zoning laws, ordinances, state and federal regulations b Reservation of minerals or mineral rights to the State of Minnesota, if any c Public utility and drainage easements of record (3) DOCUMENTS TO BE DELIVERED AT CLOSING BY SELLER In addition to the Warranty Deed required at paragraph 5B(2) above, Seller shall deln er to the Buyer a Standard form Affidavit of Seller CLL- 256239vl 1 RS220 -190 b Abstract of title, if available c A "bring- down' certificate certifying that all of the warranties made by Seller in this Purchase Agreement remain true as of the date of closing d Certificate that Seller is not a foreign national e Well disclosure certificate, if required, or, if there is no well on the Subject Property, the Warranty Deed given pursuant to subparagraph a above must include the following statement "The Seller certifies that the seller does not know of any wells on the described real property f Such other documents as may be reasonably required b} Buyer's title examiner or title insurance company 6. CONTINGENCIES: Buyer s obligation to buy is contingent upon the following A Buyer's determination of marketable title pursuant to paragraph 11 of this Agreement, and B Buyer s determination in its sole discretion that the results of the environmental investigation under paragraph 8 of this Agreement are satisfactory to Buyer C The prior or contemporaneous purchase by the City of a 25 15 acre conservation easement on the property owned by Ama Wiklund located at 12110 Bacardi Avenue, Rosemount, MN 55068 Buyer shall have until the closing to remove the foregoing contingencies The contingencies are solely for the benefit of Buyer and may be waived by Buyer If the contingencies are duly satisfied or waived, then the Buyer and Seller shall proceed to close the transaction as contemplated herein If, however, one or more contingencies is not satisfied, or is not satisfied on time, and is not waived, this Purchase Agreement shall thereupon be void, and Buyer and Seller shall execute and deliver to each other the termination of this purchase agreement As a contingent purchase agreement, the termination of this agreement is not required pursuant to Minnesota Statutes, Section 559 21, et sec 7. CLOSING DATE: The closing of the sale of the Property shall take place on or before 2004 The closing shall take place at Rosemount City Hall 2875 145"' Street West, Rosemount, Minnesota or a location mutually agreed upon by the parties cLL- 256239v1 2 RS220 -190 8. ENVIRONMENTAL INSPECTION: Buyer and its agents shall have the right to enter upon the Property after the date of this purchase agreement for the purpose of inspecting the Property and conducting such environmental examination and tests as Buyer deems necessary Buyer agrees to indemnify the Seller against any liens, claims, losses, or damage occasioned by Buyer's exercise of its right to enter and work upon the Property Buyer agrees to provide Seller with a copy of any report prepared as a result of such examination and tests 9. REAL ESTATE TAXES: A Seller will pay at or prior to closing all real estate taxes due and payable in 2004 and prior years on the Property B Buyer shall be responsible for all real estate taxes due and payable in 2005 and thereafter on the Property 10. SPECIAL ASSESSMENTS: A Seller shall pay at or prior to closing the balance of all special assessments on the Property levied prior to the date of this Purchase Agreement B Seller shall pay any deferred real estate taxes or special assessments, payment of which is required as a result of the closing of this sale C As of the date of this Purchase Agreement, Seller has not received a notice of hearing for a new public improvement project from any governmental assessing authority, the costs of which project may be assessed against the Property If a notice of pending special assessment is issued after the date of this Purchase Agreement and on or before the date of closing, Buyei shall assume payment of all of any such special assessments, and Sellei shall provide for payment on date of closing of none of any such special assessments D Notwithstanding any other provision of this Purchase Agreement, Seller shall at all times be responsible to pay special assessments, if any, foi delinquent sewer or water bills, removal of diseased trees prior to the date of this Purchase Agreement, snow removal, or other current services provided to the Property by the assessing authority while the Seller is in possession of the Property 11. MARKETABILITY OF TITLE: The Seller, within a reasonable time after acceptance of this Purchase Agreement, shall furnish to Buyer an abstract of title or registered property abstract, certified to date to include proper searches covering bankruptcies, state and federal judgment and liens and levied and pending special assessments Buyer shall have twenty (20) business days after receipt of the abstract to examine the same and to deliver written objections to title, if any, to Seller Seller shill have until the Closing Date (or such later date as the parties may agree upon) to make title marketable, at the Seller's cost In the event that title to the Property cannot be made marketable or is not made marketable by the Seller by CLL- 256239vl 3 RS220 -190 the Closing Date, then, at the option of the Buyer this Purchase Agreement shall be null and void, neither party shall be liable for damages hereunder to the other, and Buyer and Seller agree to sign a cancellation of this Purchase Agreement Buyer agrees to accept an owner's title policy in the full amount of the purchase price in lieu of an abstract of title if the property is subject to a master abstract or if no abstract of title is in Seller's possession or control If Buyer is to receive an owner's title policy, the title examination period will commence upon Buyer's receipt of a current title insurance commitment 12. CLOSING COSTS AND RELATED ITEMS: The Seller shall be responsible for the following costs (a) recording fees and conservation fees for all instruments required to establish marketable title in Seller, (b) deed transfer taxes and conservation fees required to be paid in connection with the warranty deed to be given by Seller. (c) the cost of the registered property abstract or abstract or, if a title policy is obtained, the tract check and name search fees for the commitment of title insurance, (d) the title insurance premium and service charge for the commitment of title insurance, if the title policy is being provided because no abstract is available Buyer shall be responsible for the payment of the following costs (1) recording fees required to be paid in connection with the warranty deed to be giv en by Seller, (2) closing fee, if any Each party shall be responsible for its own attorneys' fees and costs 13. POSSESSION /CONDITION OF PROPERTY: Seller shall deliver possession of the Property to Buyer by 4 30 p in on the day of closing, in the same condition as the Property existed on the date of thus Purchase Agreement, reasonable wear and tear excepted Seller shall remove all debris and all personal property not included in this sale from the Property prior to delivery of possession Buyer shall have the right to inspect the Property prior to the closing contemplated by this Purchase Agreement, for the purpose of ensuring that all personal property has been removed as required The Seller agrees to indemnify and hold the Buyer harmless for all costs incurred in disposing of personal property left at the Property by the Seller after the date of transfer of possession 14. REMOVAL OF HAZARDOUS MATERIAL: Seller, prior to vacation of the Property, shall remove all substances not a part of the building structure which, under state or federal law, must be disposed of at an approved disposal facility This includes, but is not limited to, used oil, paints, solvents, fertilizers, poisons, and the like 15. DISCLOSURE; INDIVIDUAL SEWAGE TREATMENT SYSTEM- Seller has no knowledge as to the existence, location, or status of any sewage treatment system(s) on or serving the Property 16. CONDITION OF SUBSOIL AND GROUND WATER: Seller hereby warrants to Buyer that during the time the Seller has owned the Property there have been no acts or occurrences upon the Property of which Seller had knowledge that have caused or could cause impurities in the subsoil or ground water of the Property or other adjacent properties This warranty shall survive the closing of this transaction CLL- 256239v1 4 R5220 -190 r Seller agrees to indemnify and hold harmless Buyer from any and all claims, causes of action, damages, losses, or costs (including reasonable attorney's fees) relating to impurities in the subsoil or groundwater of the Property or other adjacent properties that anse from or are caused by acts or occurrences upon the Property that 1) occurred prior to Buyer taking possession of the same, and 2) were caused by Seller or were known by Seller Seller's agreement to mdemnify Buyer shall not merge into the deed and shall survive the closing of this transaction 17. WELL DISCLOSURE: Seller has no knowledge as to the existence, location, or status of any well(s) on or serving the Property 18. SELLER'S WARRANTIES: Seller warrants that buildings, if any, are entirely within the boundary lines of the property Seller warrants that there is a right of access to the real property from a public right -of -way Seller warrants that there has been no labor or material furnished to the property for which payment has not been made Seller warrants that there are no present violations of any restrictions relating to the use or improvement of the Property These warranties shall survive the closing of this transaction Buyer shall be responsible for the demolition and remo� al of any buildings or improvements, including any well(s) or sewage treatment systems located on the Property Prior to closing Buyer will notify Seller of any breach known to Buyer and Seller will be given a reasonable opportunity to remedy the breach 19. NO MERGER OF REPRESENTATIONS, WARRANTIES: All representations and warranties contained in this Purchase Agreement shall not be merged into any instruments or conveyance delivered at Closing, and the parties shall be bound accordingly, proNided, however, that any claim by Buyer for a breach of any representation or warranty made herein must be asserted by a lawsuit commenced within three (3) years of the date of closing or otherwise be forever barred 20. RELOCATION BENEFITS: Seller and Buyer each agree that the Seller is not entitled to receive payments or benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended and regulations adopted pui suant thereto 21. NO BROKER INVOLVED: The Seller and Buyer represent and warrant to each other that there is no broker involved in this transaction with whom it has negotiated or to whom it has agreed to pay a broker commission or finder's fee in connection with negotiations for the sale of the Property 22. ENTIRE AGREEMENT; AMENDMENTS: This Purchase Agreement constitutes the entire agreement between the parties, and no other agreement prior to this Purchase Agreement or contemporaneous herewith shall be effective except as expressly set forth or incorporated herein Any purported amendment shall not be effectn e unless it shall be set forth in wntmg and executed by both parties or their respective successors or assigns CLL- 256239v1 R5220 -190 G i 23. BINDING EFFECT; ASSIGNMENT: This Purchase Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns Buyer shall not assign its rights and interest hereunder without notice to Seller 24. NOTICE: Any notice, demand, request or other communication that may or shall be given or served by the parties shall be deemed to have been given or served on the date the same is deposited in the United States Marl, registered or certified, postage prepaid and addressed as follows a If to Seller. b If to Buyer City of Rosemount ATTN City Administrator 2875 145 Street West Rosemount, MN 55068 -4941 25. SPECIFIC PERFORMANCE: This Purchase Agreement may be specifically enforced by the parties, provided that any action for specific enforcement is brought within six months after the date of the alleged breach This paragraph is not intended to create an exclusive remedy for breach of this agreement, the parties reserve all other remedies available at law or in equity IN WITNESS WHEREOF, the parties have executed this agreement as of the date written above SELLER CLL- 256239v] 6 RS220 -190 BUYER CITY OF ROSEMOUNT By Its Mayor By Its City Clerk This Document drafted by Kennedy Graven, Chartered 470 US Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337 -9300 CLL- 256239vl 7 RS220 -190 PURCHASE AGREEMENT 1. PARTIES: This Purchase Agreement is made this day of 2004, b) and between Earl Bester ("Seller and City of Rosemount. a public body corporate and politic under the laws of the State of Minnesota "Buyer 2. SALE OF PROPERTY: Seller is the owner of that certain real estate (the "Property legally described on Attachment One, attached hereto and hereby made a part hereof 3. OFFER/ACCEPTANCE: In consideration of the mutual agreements herein contained, Buyer offers and agrees to purchase and Seller agrees to sell and hereby grants to Buyer the exclusive right to purchase the Property, together with all appurtenances, including, but not limited to, plants, shrubs, trees, and grass 4. PERSONAL PROPERTY INCLUDED IN SALE: There are no items of personal property or fixtures being sold by Seller 5. PURCHASE PRICE AND TERMS: A PURCHASE PRICE: The total Purchase Price for the real estate included in this sale is Fifty -one thousand, seven hundred fourteen dollars ($51,714 00) B TERMS: (1) AMOUNT DUE SELLER Buyer agrees to pay by check on the Closing Date Fifty -one thousand, seven hundred fourteen Dollars ($51,714), according to the terms of this Purchase Agreement (2) DEED/MARKETABLE TITLE Subject to performance by Buyer, Seller agrees to execute and deliver a Warranty Deed conveying marketable title to the Property to Buyer, subject only to the follow mg exceptions a Building and zoning laws, ordinances, state and federal regulations b Reservation of minerals or mineral rights to the State of Minnesota, if any c Public utility and drainage easements of record (3) DOCUMENTS TO BE DELIVERED AT CLOSING BY SELLER In addition to the Warranty Deed required at paragraph 5B(2) above, Seller shall deliver to the Buyer a Standard form Affidavit of Seller CLL-256239vl 1 RS220 -190 b Abstract of title, if available c A "bring -down' certificate, certifying that all of the warranties made by Seller in this Purchase Agreement remain true as of the date of closing d Certificate that Seller is not a foreign national e Well disclosure certificate, if required, or, if there is no well on the Subject Property, the Warranty Deed given pursuant to subparagraph a above must include the following statement "The Seller certifies that the seller does not know of any wells on the described real property f Such other documents as may be reasonably required by Buyer's title examiner or title insurance company 6. CONTINGENCIES: Buyer's obligation to buy is contingent upon the following A Buyer's determination of marketable title pursuant to paragraph 11 of this Agreement, and B Buyers determination, in its sole discretion, that the results of the environmental investigation under paragraph 8 of this Agreement are satisfactory to Buyer C The prior or contemporaneous purchase by the City of a 25 15 acre conservation easement on the property owned by Ama Wiklund located at 12110 Bacardi Avenue, Rosemount, MN 55068 Buyer shall have until the closing to remove the foregoing contingencies The contingencies are solely for the benefit of Buyer and may be waived by Buyer If the contingencies are duly satisfied or waived, then the Buyer and Seller shall proceed to close the transaction as contemplated herein If, however, one or more contingencies is not satisfied, or is not satisfied on time, and is not waived, this Purchase Agreement shall thereupon be void, and Buyer and Seller shall execute and deliver to each other the termination of this purchase agreement As a contingent purchase agreement, the termination of this agreement is not required pursuant to Minnesota Statutes, Section 559 21, et �Leq 7. CLOSING DATE: The closing of the sale of the Property shall take place on or before 2004 The closing shall take place at Rosemount City Hall 2875 145` Street West, Rosemount, Minnesota or a location mutually agreed upon by the parties c«- 256239vi 2 RS220 -190 8. ENVIRONMENTAL INSPECTION: Buyer and its agents shall have the right to enter upon the Property after the date of this purchase agreement for the purpose of inspecting the Property and conducting such environmental examination and tests as Buyer deems necessary Buyer agrees to indemnify the Seller against any hens, claims, losses, or damage occasioned by Buyer's exercise of its right to enter and work upon the Property Buyer agrees to provide Seller with a copy of any report prepared as a result of such examination and tests 9. REAL ESTATE TAXES: A Seller will pay at or prior to closing all real estate taxes due and payable in 2004 and prior years on the Property B Buyer shall be responsible for all real estate taxes due and payable in 2005 and thereafter on the Property 10. SPECIAL ASSESSMENTS: A Seller shall pay at or prior to closing the balance of all special assessments on the Property levied prior to the date of this Purchase Agreement B Seller shall pay any deferred real estate taxes or special assessments, payment of which is required as a result of the closing of this sale C As of the date of this Purchase Agreement, Seller has not received a notice of hearing for a new public improvement project from any governmental assessing authority, the costs of which project may be assessed against the Property if a notice of pending special assessment is issued after the date of this Purchase Agreement and on or before the date of closing, Buyer shall assuine payment of all of any such special assessments, and Seller shall provide for payment on date of closing of none of any such special assessments D Notwithstanding any other provision of this Purchase Agreement, Seller shall at all times be responsible to pay special assessments, if any, for delinquent sewer or water bills, removal of diseased trees prior to the date of this Purchase Agreement, snow removal, or other current services provided to the Property by the assessing authority while the Seller is in possession of the Property 11. MARKETABILITY OF TITLE: The Seller, within a reasonable time after acceptance of this Purchase Agreement, shall furnish to Buyer an abstract of title or registered property abstract, certified to date to include proper searches covering bankruptcies, state and federal judgment and liens acrd levied and pending special assessments Buyer shall have twenty (20) business days after receipt of the abstract to examine the same and to deliver written objections to title, if any, to Seller Seller shall have until the Closing Date (or such later date as the parties may agree upon) to make title marketable, at the Sellers cost In the event that title to the Property cannot be made marketable or is not made marketable by the Seller by CLL- 256239v] 3 RS220 -190 the Closing Date, then, at the option of the Buyer this Purchase Agreement shall be null and void, neither party shall be liable for damages hereunder to the other, and Buyer and Seller agree to sign a cancellation of this Purchase Agreement Buyer agrees to accept an owner's title policy in the full amount of the purchase price in lieu of an abstract of title if the property is subject to a master abstract or if no abstract of title is in Seller's possession or control If Buyer is to receive an owner's title policy, the title examination period will commence upon Buy er's receipt of a current title insurance commitment 12. CLOSING COSTS AND RELATED ITEMS: The Seller shall be responsible for the following costs (a) recording fees and conservation fees for all instruments required to establish marketable title in Seller, (b) deed transfer taxes and conservation fees required to be paid in connection with the warrant} deed to be given by Seller, (c) the cost of the registered property abstract or abstract or, if a title policy is obtained, the tract check and name search fees for the commitment of title insurance, (d) the title insurance premium and service charge for the commitment of title insurance, if the title policy is being provided because no abstract is available Buyer shall be responsible for the payment of the following costs (1) recording fees required to be paid in connection with the warranty deed to be given by Seller, (2) closing fee, if any Each party shall be responsible for its own attorneys' fees and costs 13. POSSESSION /CONDITION OF PROPERTY: Seller shall deliver possession of the Property to Buyer by 4 30 p in on the day of closing, in the same condition as the Property existed on the date of this Purchase Agreement, reasonable wear and tear excepted Seller shall remove all debris and all personal property not included in this sale from the Property prior to delivery of possession Buyer shall have the right to inspect the Property prior to the closing contemplated by this Purchase Agreement, for the purpose of ensuring that all personal property has been removed as required The Seller agrees to indemnify and hold the Buyer harmless for all costs incurred in disposing of personal property left at the Property by the Seller after the date of transfer of possession 14. REMOVAL OF HAZARDOUS MATERIAL: Seller, prior to vacation of the Property, shall remove all substances not a part of the building structure which, under state or federal law, must be disposed of at an approved disposal facility This includes, but is not limited to, used oil, paints, soh ents, fertilizers, poisons, and the like 15. DISCLOSURE; INDIVIDUAL SEWAGE TREATMENT SYSTEM: Seller has no knowledge as to the existence, location, of status of any sewage ticatment system(s) on or serving the Property 16. CONDITION OF SUBSOiI. AND GROUND WATER- Seller hereby warrants to Buyer that during the time the Seller has owned the Property there have been no acts or occurrences upon the Property of which Seller had knowledge that have caused or could cause impurities in the subsoil or ground water of the Property or other adjacent properties This warrant) shall survive the closing of this transaction CLL.256239vi 4 RS220 -190 Seller agrees to indemnify and hold harmless Buyer from any and all claims, causes of action, damages, losses, or costs (including reasonable attorney's fees) relating to impurities in the subsoil or groundwater of the Property or other adjacent properties that anse from or are caused by acts or occurrences upon the Property that 1) occurred prior to Buyer taking possession of the same, and 2) were caused by Seller or were known by Seller Seller's agreement to mdeirnufy Buyer shall not merge into the deed and shall survive the closing of this transaction 17. WELL DISCLOSURE: Seller has no knowledge as to the existence, location, or status of any well(s) on or serving the Property 18. SELLER'S WARRANTIES: Seller warrants that buildings, if any, are entirely within the boundary lines of the property Seller warrants that there is a right of access to the real property from a public right -of -way Seller warrants that there has been no labor or material furnished to the property for which payment has not been made Seller warrants that there are no present violations of any restrictions relating to the use or improvement of the Property These warranties shall survive the closing of this transaction Buyer shall be responsible for the demolition and removal of any buildings or improvements, including any well(s) or sewage treatment systems located on the Property Prior to closing Buyer will notify Seller of any breach known to Buyer and Seller will be given a reasonable opportunity to remedy the breach 19. NO MERGER OF REPRESENTATIONS, WARRANTIES: All representations and warranties contained in this Purchase Agreement shall not be merged into any instruments or conveyance delivered at Closing, and the parties shall be bound accordingly, provided, however, that any claim by Buyer for a breach of any representation or warranty made herein must be asserted by a lawsuit commenced within three (3) years of the date of closing or otherwise be forever barred 20. RELOCATION BENEFITS: Sellei and Buyer each agree that the Seller is not entitled to receive payments or benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, and regulations adopted pursuant thereto 21. NO BROKER INVOLVED: The Seller and Buyer represent and warrant to each other that there is no broker involved in this transaction with whom it has negotiated or to whom it has agreed to pay a broker commission or findei's fee in connection with negotiations for the sale of the Property, 22. ENTIRE AGREEMENT; AMENDMENTS: This Purchase Agreement constitutes the entire agreement between the parties, and no other agreement prior to this Purchase Agreement or contemporaneous herewith shall be effective ekcept as expressly set forth or incorporated herein Any purported amendment shall not be effective unless it shall be set forth in writing and executed by both parties or their respective successors or assigns CLL- 256239v1 5 RS220 -190 t 23. BINDING EFFECT; ASSIGNMENT: This Purchase Agreement shall be binding upon and Inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns Buyer shall not assign Its rights and Interest hereunder without notice to Seller 24. NOTICE: Any notice, demand, request or other communication that may or shall be given or served by the parties shall be deemed to have been given or served on the date the same is deposited In the United States Mall, registered or certified, postage prepaid and addressed as follows a If to Seller b If to Buyer City of Rosemount ATTN Citv Administrator 2875 145 Street West Rosemount, MN 55068 -4941 25. SPECIFIC PERFORMANCE: This Purchase Agreement may be specifically enforced by the parties, provided that any action for specific enforcement is brought within six months after the date of the alleged breach This paragraph Is not Intended to create an exclusive remedy for breach of this agreement, the parties reserve all other remedies available at law or in equity IN WITNESS WHEREOF, the parties have executed this agreement as of the date written above SELLER CLL- 256239e1 RS220 -190 0 BUYER CITY OF ROSEMOUNT By Its Mayor By Its City Clerk This Document drafted by Kennedy Graven, Chartered 470 US Barak Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337 -9300 CLL- 236239v] RS220 -190 ATTACHMENT ONE LEGAL DESCRIPTION OF THE PROPERTY THAT PART OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 115, RANGE 19, DAKOTA COUNTY, MINNESOTA, WHICH LIES SOUTHERLY OF THE SOUTHERLY LINE OF LOT 2, BLOCK 1, SCHLUKEBTER, ACCORDING TO THE RECORDED PLAT THEREOF, DAKOTA COUNTY, MINNESOTA, AND ITS WESTERLY EXTENSION THEREOF, AND EASTERLY OF THE FOLLOWING DESCRIBED LINE COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 2, BLOCK 1, THENCE SOUTH 89 DEGREES 47 MINUTES 00 SECONDS WEST, ASSUMED BEARING ALONG SAID WESTERLY EXTENSION OF THE SOUTH LINE OF LOT 2, 33 00 FEET, TO THE POINT OF BEGINNING OF SAID LINE TO BE HEREINAFTER DESCRIBED, THENCE SOUTH 01 DEGREES 06 MINUTES 37 SECONDS EAST, 825 58 FEET, TO A POINT ON THE SOUTH LINE OF SAID NORTHEAST QAURTER OF THE '_NORTHWEST QUARTER, DISTANT 72 21 FEET WEST OF THE SOUTHEAST CORNER OF SAID NORTHEAST QUARTER OF THE NORTHWEST QAURTER, AS MEASURED ALONG SAID SOUTH LINE OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER, AND SAID LINE THERE TERMINATING CLL- 256239v1 RS220 -190 h 6.W. MEMORANDUM DATE: December 21, 2004 TO: Mayor and Council Members CC: Jamie Verbrugge, City Administrator FROM: Dan Schultz, Director of Parks and Recreation DS RE: Bester Purchase Agreement Attached is an updated purchase agreement for the Bester Property. The City's Attorney and Mr. Bester's attorney have both reviewed the agreement and are satisfied with the changes. Staff is recommending the City Council approve the updated purchase agreement and the recommended action listed below. RECOMMENDED ACTION: Motion to approve attached purchase agreement for the purchase of 1.53 acres of land currently owned by Earl Bester, subject to the determination by our City Attorney that the City will not incur any unexpected expenses caused by the Agricultural Preserve Status. P4 (3): DOCUMENTS TO BE DELIVERED AT CLOSING BY SELLER. In addition to the Warranty Deed required at paragraph 5B(2) above, Seller shall deliver to the Buyer: a. Standard form Affidavit of Seller. b. Abstract of title, if available. C. A "bring- down" certificate, certifying that all of the warranties made by`Seller in this Purchase Agreement remain true as of the date of closing. d. Certificate that Seller is not a foreign national. e. Well disclosure certificate, if required, or, if there is no well on the Subject Property, the Warranty Deed given pursuant to subparagraph a. above must include the following statement: "The Seller certifies that the seller does not know of any wells on the described real property." f. Such other documents as may be reasonably required by Buyer's title examiner or title insurance company. 6. CONTINGENCIES. Buyer's obligation to buy is contingent upon the following: a. Buyer's determination of marketable title pursuant to paragraph 11 of this Agreement; and b. Buyer's determination, in its sole discretion, that the results of the environmental investigation under paragraph 8 of this Agreement are satisfactory to Buyer. Buyer shall have until the closing date to remove the foregoing contingencies. The contingencies are solely for the benefit of Buyer and may be waived by Buyer. If the contingencies are duly satisfied or waived, then the Buyer and Seller shall proceed to close the transaction as contemplated herein. If, however, one or more contingencies is not satisfied, or is not satisfied on time, and is not waived, this Purchase Agreement shall thereupon be void, and Buyer and Seller shall execute and deliver to each other the termination of this purchase agreement. As a contingent purchase agreement, the termination of this agreement is not required pursuant to Minnesota Statutes, Section 559.21, et seq. 7. CLOSING DATE. The closing of the sale of the Property shall take place on or before January 31, 2005. The closing shall take place at Rosemount City-Hall 2875 145 Street West, Rosemount, Minnesota or a location mutually agreed upon by the parties. 8. ENVIRONMENTAL INSPECTION. Buyer and its agents shall have the right to enter upon the Property after the date of this purchase agreement for the purpose of inspecting the CLL- 256239v2 2 RS220 -190 Property and conducting such environmental examination and tests as Buyer deems necessary. Buyer agrees to indemnify the Seller against any liens, claims, losses, or damage occasioned by Buyer's exercise of its right to enter and work upon the Property. Buyer agrees to provide Seller with a copy of any report prepared as a result of such examination and tests. 9. REAL ESTATE TAXES. A. Seller will pay at or prior to closing all real estate taxes due and payable in 2004 and prior years on the Property. B. Buyer shall be responsible for all real estate taxes due and payable in 2005 and thereafter on the Property. 10. SPECIAL ASSESSMENTS. A. Seller shall pay at or prior to closing the balance of all special assessments on the Property levied prior to the date of this Purchase Agreement. B. Seller shall pay any deferred real estate taxes or special assessments, payment of which is required as a result of the closing of this sale. C. As of the date of this Purchase Agreement, Seller has not received a notice of hearing for a new public improvement project from any governmental assessing authority, the costs of which project may be assessed against the Property. If a notice of pending special assessment is issued after the date of this Purchase Agreement and on or before the date of closing, Buyer shall assume payment of all of any such special assessments, and Seller shall provide for payment on date of closing of none of any such special assessments. D. Notwithstanding any other provision of this Purchase Agreement, Seller_ shall at all times be responsible to pay special assessments, if any, for delinquent sewer or water bills, removal of diseased trees prior to the date of this Purchase Agreement, snow removal, or other current services provided to the Property by the assessing authority while the Seller is in possession of the Property. 11. MARKETABILITY OF TITLE. On or before 10 days following acceptance of this Purchase Agreement, Buyer shall obtain (and deliver a copy to Seller) an original commitment for title insurance issued by a title company licensed to do business in the state of Minnesota, satisfactory to Buyer. Buyer shall have ten (10) days after receipt of the title commitment to examine the same and deliver written objections to title, if any, to Seller. Seller shall have until the closing Date (or such later date as the parties may agree upon) to make title marketable, at Seller's cost. In the event that title to the Property cannot be made marketable or is not made marketable by the Seller by the Closing Date, then, at the option of the Buyer, this Purchase Agreement shall be null and void; neither party shall be liable for damages hereunder to the other; and Buyer and Seller agree to sign a Cancellation of this Purchase Agreement. CLL- 256239v2 3 RS220 -190 12. CLOSING COSTS AND RELATED ITEMS. The Seller shall be responsible for the following costs: (a) recording fees and conservation fees for all instruments required to establish marketable title in Seller; and (b) deed transfer taxes and conservation fees required to be paid in connection with the warranty deed to be given by Seller. Buyer shall be responsible for the payment of the following costs: (1) recording fees required to be paid in connection with the warranty deed to be given by Seller; (2) closing fee, if any; and (3) the costs of preparation of a commitment for title insurance and the title insurance premium for title insurance in the event Buyer obtains title insurance. Each party shall be responsible for its own attorneys' fees and costs. 13. POSSESSION /CONDITION OF PROPERTY. Seller shall deliver possession of the Property to Buyer by 4:30 p.m. on the day of closing, in the same condition as the Property existed on the date of this Purchase Agreement, reasonable wear and tear excepted. Seller shall remove all debris and all personal property not included in this sale from the Property prior to delivery of possession. Buyer shall have the right to inspect the Property prior to the closing contemplated by this Purchase Agreement, for the purpose of ensuring -that all personal property has been removed as required. The Seller agrees to indemnify and hold the Buyer harmless for all costs incurred in disposing of personal property left at the Property by the Seller after the date of transfer of possession. 14. REMOVAL OF HAZARDOUS MATERIAL. Buyer, at its cost and expense, shall be responsible for obtaining any government approvals necessary to consummate the transaction, including but not limited to, the following: (i) release of the Property from the agricultural preserves covenant, (ii) lot split and /or subdivision approvals, and (iii) rezoning. 15. DISCLOSURE; INDIVIDUAL SEWAGE TREATMENT SYSTEM. Seller has no knowledge as to the existence, location, or status of any sewage treatment system(s) on or serving the Property. 16. CONDITION OF SUBSOIL AND GROUND WATER Seller hereby represents to Buyer that during the time Seller has owned the Property, there have been no acts or occurrences upon the Property of which Seller has knowledge that, to the best of Seller's knowledge, have caused or could cause hazardous substance environmental contamination in the sub -soil or ground water of the Property or other adjacent properties. This representation shall survive the closing of this transaction. 17. WELL DISCLOSURE. Seller has no knowledge as to the existence, location, or status of any well(s) on or serving the Property. 18. SELLER'S WARRANTIES. Seller warrants that buildings, if any, are entirely within the boundary lines of the property. Seller warrants that there is a right of access to the real property from a public right -of -way. Seller warrants that there has been no labor or material furnished to the property for which payment has not been made. Seller warrants that there are no present violations of any restrictions relating to the use or improvement of the Property. These warranties shall survive the closing of this transaction. Buyer shall be responsible for the demolition and removal of any buildings or improvements, including any well(s) or sewage treatment systems located on the cLL- 256239v2 4 RS220 -190 i Property. Prior to closing Buyer will notify Seller of any breach known to Buyer and Seller will be given a reasonable opportunity to remedy the breach. 19. NO MERGER OF REPRESENTATIONS, WARRANTIES. All representations and warranties contained in this Purchase Agreement shall not be merged into any instruments or conveyance delivered at Closing, and the parties shall be bound accordingly; provided, however, that any claim by Buyer for a breach of any representation or warranty made herein must be asserted by a lawsuit commenced within one (1) year of the date of closing or otherwise be forever barred. 20. RELOCATION BENEFITS. Seller and Buyer each agree that the Seller is not entitled to receive payments or benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, and regulations adopted pursuant thereto. 21. NO BROKER INVOLVED. The Seller and Buyer represent and warrant to each other that there is no broker involved in this transaction with whom it has negotiated or to whom it has agreed to pay a broker commission or finder's fee in connection with negotiations for the sale of the Property. 22. ENTIRE AGREEMENT; AMENDMENTS. This Purchase Agreement constitutes the entire agreement between the parties, and no other agreement prior to this Purchase Agreement or contemporaneous herewith shall be effective except as expressly set forth or incorporated herein. Any purported amendment shall not be effective unless it shall be set forth in writing and executed by both parties or their respective successors or assigns. 23. BINDING EFFECT; ASSIGNMENT. This Purchase Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns. Buyer shall not assign its rights and interest hereunder without notice to Seller. 24. NOTICE. Any notice, demand, request or other communication that may or shall be given or served by the parties shall be deemed to have been given or served on the date the same is deposited in the United States Mail, registered or certified, postage prepaid and addressed as follows: a. If to Seller: Earl and Florence Bester 1659 145 Street Rosemount, MN 55068 With a copy to: Reid Hansen 14450 South Robert Trail Rosemount, MN 55068 b. If to Buyer: City of Rosemount ATTN: City Administrator 2875 145 Street West Rosemount, MN 55068 -4941 CLL- 256239v2 RS220 -190 5 25. SPECIFIC PERFORMANCE. This Purchase Agreement may be specifically enforced by the parties, provided that any action for specific enforcement is brought within six months after the date of the alleged breach. This paragraph is not intended to create an exclusive remedy for breach of this agreement; the parties reserve all other remedies available at law or in equity. IN WITNESS WHEREOF, the parties have executed this agreement as of the date written above. SELLER CLL- 256239v2 6 RS220 -190 BUYER This Document drafted by: Kennedy & Graven, Chartered 470 US Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337 -9300 CITY OF ROSEMOUNT By Its Mayor By Its City Clerk CLL- 256239v2 7 RS220 -190 ATTACHMENT ONE LEGAL DESCRIPTION OF THE PROPERTY PARCEL C (AREA BETWEEN THE CENTERLINE OF BACARDI AVE AND THE WIKLUND PARCEL) THAT PART OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 115, RANGE 19, DAKOTA COUNTY, MINNESOTA, WHICH LIES SOUTHERLY OF THE SOUTHERLY LINE OF LOT 2, BLOCK 1, SCHLUKEBIER, ACCORDING TO THE RECORDED PLAT THEREOF, DAKOTA COUNTY, MINNESOTA, AND ITS WESTERLY EXTENSION THEREOF, AND EASTERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 2, BLOCK 1; THENCE SOUTH 89 DEGREES 47 MINUTES 00 SECONDS WEST, ASSUMED BEARING ALONG SAID WESTERLY EXTENSION OF THE SOUTH LINE OF LOT 2, 33.00 FEET, TO THE POINT OF BEGINNING OF SAID LINE TO BE HEREINAFTER DESCRIBED; THENCE SOUTH 01 DEGREES 06 MINUTES 37 SECONDS EAST, 825.58 FEET, TO A POINT ON THE SOUTH LINE OF SAID NORTHEAST QAURTER OF THE NORTHWEST QUARTER, DISTANT 72.21 FEET WEST OF THE SOUTHEAST CORNER OF SAID NORTHEAST QUARTER OF THE NORTHWEST QAURTER, AS MEASURED ALONG SAID SOUTH LINE OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER, AND SAID LINE THERE TERMINATING. CLL- 256239v2 RS220 -190