HomeMy WebLinkAbout6.w. 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
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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.
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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
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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
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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
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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
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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.
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