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HomeMy WebLinkAbout6.l. Purchase Site - Well #15, City Project #408AGENDA ITEM: Purchase Site Well #15, City Project #408 AGENDA SECTION: Consent PREPARED BY: Andrew J. Brotzler, P E., City Engineer AGENDA NO. 61. ATTACHMENTS: August 7, 2006 Utility Commission Packet and Draft Utility Commission Minutes; Purchase Agreement; Map APPROVED BY� RECOMMENDED ACTION: Motion to Enter into a Purchase Agreement with Centex Homes for the Acquisition of Land for Well #15 and Authorize the Necessary Signatures. 4 ROSEMOUNT CITY COUNCIL City Council Meeting' September 5, 2006 EXECUTIVE SUMMARY ISSUE: With the continued growth of the City it is necessary to move forward with the design and construction of Well #15 in accordance with the Comprehensive Water System Plan BACKGROUND: At the August 7, 2006 regular Utility Comrnission meeting, the Commission reviewed the need for the construction of Well #15 in anticipation of continued growth and development within the City. Based on this review, the Commission approved a motion to recommend that Council approve the purchase of 0.508 acres as shown within the Meadows of Bloomfield development. As noted in the attached Utility Commission report, the proposed purchase price of $55,880.00 is based on a land value of $110,000 per acre which is consistent with recent land sales in the area SUMMARY: Staff recommends that the City Council enter into a purchase agreement with Centex Homes. G \ENGPROJ \408 \PurchaseS teCC9- 5-06.doe AGENDA ITEM: Approve Purchase of Well No 15 Site AGENDA SECTION: New Business PREPARED BY: Andrew J. Brotzler, P.E., City Engineer AGENDA NO. 6b. ATTACHMENTS: Exhibit APPROVED BY: RECOMMENDED ACTION: Motion to Recommend City Council Approval of Purchase of 0 508 Acre Site for Well No. 15 in the Amount of $55,880 00. t 4 ROSEMOUNT BACKGROUND SUMMARY UTILITY COMMISSION Utility Commission Meeting: August 7, 2006 EXECUTIVE SUMMARY Through discussions with Centex, the developer for Meadows of Bloomfield, the acquisition of 0.508 acres as shown on the attached exhibit has been negotiated for the construction of Well No. 15. The proposed puichase price of $55,880.00 is based on a rate of $110,000 per acre which is consistent with recent land sales m the area, Pending Commission approval, a final purchase agreement will be forwarded to the City Council for authonzatton to execute. G ENGPROJ 408 Approve Purchase Site UC8 -7-06 doc STEVEN V ISCHE DATE 7i78N6 REG NO 22733 GRAPHIC SCALE I HEREBY CERT FY THAT THIS PLAN WAS PREPARED BY ME OR UNDER tJY DIRECT SUPERVISION AND THAT 1 AM A DULY REGISTERED LAND SURVE °OR UNDER THE LAWS Or THE STATE OF MINN =SCTA WSB .11 701 Xenia AvenLe Suitt Suite 30D MmneaooIIS, MN 55416 www wsbeng com 763E412800 Fax 7E3E4 1700 IN%POSTRUDTURE ENGINEERING PLANNING CO'STRUO PROPOSED WELL NO. 15 PARCEL SKETCH Rosemount, Minnesota W5B Project No 1582 -02 CITY Project No Date 7/28106 Exhibit A Date: July 26, 2006 Client: City of Rosemount Subject: Parcel Description for Well No. 15 WSB No. 1582 -02 Well No. 15 (parcel description) That part of the northwesterly 150.00 feet of OUTLOT F, MEADOWS OF BLOOMFIELD, according to said plat on file and of record in the office of the County Recorder, Dakota County, Minnesota, lying westerly of the easterly 178.00 feet thereof. G \ENGPROJ\408 \Tower site Legal Descnption doc UTILITY COMMISSION MINUTES AUGUST 7, 2006 ADDITIONS OR CORRECTIONS TO THE AGENDA None. AUDIENCE INPUT None. D RAFT Pursuant to due call and notice thereof the regular Utility Commission meeting of the City of Rosemount was called to order on August 7, 2006 at 5:30 p m in the West Conference Room of the Cit3 Hall by President Shawn Mulhern. Those present were Commussion Members Schnieder, Kempe, Mayor Droste, City Engineer Brotzler and Recording Secretary Dorniden. MOTION by Schnieder to approve the minutes of the July 10, 2006, regular Utihty Commission meeting. Second by Kempe. Ayes: Mulhern, Schnieder, Kempe. Nays: None. Motion carried. OLD BUSINESS 5a. 2007 Budget City Engineer Brotzler asked the Commission if they had any questions on the revised 2007 Budget Several minor questions were addressed and a revision will be made on Fund Account 601- 49400- 01 -433 to increase the AV/WA Membership dues to a total of $970.00 City Engineer Brotzler explained that the $50,000 for the Vulnerability Assessment is for the improvements that the Commission discussed last year. The Commission discussed the watering violation notices and getting the public better informed. There were 273 notices handed out smce May 1". Out of those 273, 13 were 2 notices at $50.00 a piece and 2 were 3` notices at $100.00 a piece for a total of $850 00 to -date. Last year the total revenue for the year for violation notices were $300. The Mayor feels we need more signs on the collector streets and Commissioner Kempe suggested putting flags on top of the signs when the water supply is reaching critical to draw attention to the signs. All agree that the pubhc needs more education about consenvauon. At the Council Work Session in July the City had pumped close to 7 million gallons m a day and did have low level alarms at Chippendale and Connemara If the towers would have dropped two more feet the City would have had to invoke a full watering ban Last year our highest day was 5 million gallons Our demand was up 22 o from last year to this year and only an 8°,0 building increase. UTILITY COMMISSION MINUTES AUGUST 7, 2006 President Mulhern led the Commission back to the topic of the budget Commissioner hempe asked about doing some type of joint agreement with surrounding clues for painting the towers in hopes of getting a better price. President Mulliern said you can't count on who the painter would be and the time frame in which the job would be done. You could possibly get a lower quality pant job when doing a project like that A paint job should be good for at least 20 teats if you have a quality job done. Motion by Kempe to recommend Council approval of the 2007 Utility Budget with recommended adjustments. Second by Schnieder. Ayes: Schnieder, hempe, Mulhern. Nays: None. Mouon carried. NEW BUSINESS 6a. Authorize Preparation of Water Emergency Conservation Plan Update The last plan was adopted in 1996 The Department of Natural Resources is requiring that this Plan be updated by October of 2007. The plan will include a description and evaluation of the City's water supply system, emergency response procedures and water conservation planning. The City's recently approved Comprehensive Water System Plan will be used as a basis for updating this plan. This Plan will consider the best practices for emergency response and water conservation. Motion by Mulhern to authorize preparation of Water Emergency and Conservation Plan. Second by Schnieder. Ayes: Kempe, Mulhern, Schnieder. Nays: None. Motion earned. 6b. Authorize Purchase of Well No 15 Site City Engineer Brotzler appnsed the Commission that Staff recommends purchasing property for the Well #15 site is an outlot owned by Centex Homes. Commissioner hempe felt the price was too high. Brotzler went on to explain that this is the logical site and felt the City was making a fair offer. If the City waits for another site to develop we will lose that much tune and it does take approximately two years to get a well onhne. The Mayor mentioned that if the City would go through the eminent domam process It would probably cost more than the amount that has been offered. This site is identified within the Comprehensive Water Plan. Piping to the well has been planned for and portions of the piping are currently being constructed with othei projects. A test well will need to be constructed and it will go into the Jordan Aquifer Motion by Mulhern to recommend City Council approval of purchase of 0.508 acre site for Well No. 15 in the amount of 555,880 00 Second by hempe. Ayes: Mulhern, Schnieder, Kempe. Nays. None. Mouon carried. 2 UTILITY COMMISSION MINUTES AUGUST 7, 2006 6c. Authorize Preparation of Plans Specifications -Well #15 Well House #15, City Project 408 President Mulhern asked if this well and well house will be the same as Well #14 and Staff confirmed that. A test well will have to be done before the actual well can be constructed. Commissioner Kempe asked if a submersible well would be built so we wouldn't need a well house. Ms. Zeigler apprised the Commission that a well house would have to be built for the chemicals until a water treatment plant is built It was agreed that a less expensive type of well house could be built if approved by the Planning Commission. The Commission will re- evaluate next April or May the timing of the water treatment plant. The test well can't be constructed until we have control of the land and then it takes one to two months before it would be done and the results would be back. The City doesn't need to worry about the well house for at least six months or more. Alternate options can be added to the scope. Motion by Kempe to authorize the preparation of plans and specifications for Well No. 15 and Well House No. 15 Second by Mulliern with a friendly amendment that these plans and specifications are contingent upon the Council authorizing the purchase of the land for the site. Ayes: Schroeder, Kempe, Mulhern. Nays: None. Motion carried. 6d. Authorize Comprehensive Sanitary Sewer Study City Engineer Brotzler asked if the Commission had any questions regarding the preparation of the Comprehensive Sanitary Sewer Study. The study is based on population and growth that went along with the Land Use Plan and Comprehensive Water Plan. Tlus Study would cover everything east of Akron up to the corporate boundaries The North Central Sanitary Sewer Study covers the north boundary and everything west of Akron. The cost for the study wouldn't be passed on to developers because the study reeds to be done and there is no development going on at this time that could incur the costs. A sewer system has a 75 year design and would be tied into existing lines. If this study isn't completed in a timely fashion it could delay projects on the east side. The Comprehensive Guide Plan has to be updated by September of 2008 so therefore this study needs to be completed m order to incorporate it into the Comprehensive Guide Plan by 2008. Kevin Newman will be the project engineer on this study. 3 UTILITY COMMISSION MINUTES AUGUST 7, 2006 Motion by Mulhern to authorize the preparation of a Comprehensive Sanitary Sewer System Plan. Second by Kempe. Ayes: Kempe, Mulhern, Schroeder. Nays: None. Motion carried. PRESIDENT'S REPORT None. EXECUTIVE DIRECTOR'S REPORT 9a. PROJECT UPDATE City Engineer Brotzler wanted to remind the Commission that on Wednesday, August 9, 2006 at 10:00 a.m the Contractor will be meeting Staff and Ms. Zeigler out on site to position the City logo on the new water tower. City Engineer Brotzler asked if the Commission had any questions regarding the Project Update in then packet He noted a couple of the projects that were taken off the list because they have been completed and finaled. Possibly in September a tour can be scheduled for visiting some water treatment plants. It was reiterated that more education needs to be brought to the residents' attention regarding the possibility of a second meter and the knowledge of conservation. 9d. SET NEXT MEETING AGENDA FOR SEPTEMBER 11, 2006 1. Lebanon Hills Update 2. Comprehensive Stormwater Management Plan Implementation Kempe asked if once Well #3 was taken offhne could it be reactivated incase of an emergency? Ms. Zeigler explained that generally wells that are not going to be used as municipal wells anymore are sealed, making them unusable To keep Well #3 as a back -up emergence well would require maintaining it and doing the required water quality testing on a regular basis. Motion by Mulhem to Adjourn. Seconded by Schroeder. Meeting adjourned at 7:25 p.m. Respectfully Submitted, Cindy Dormden Recording Secretary CONTRACT OF SALE This CONTRACT OF SALE "Contract is entered into effective as of the Effective Date (defined below) by and between CENTEX HOMES, a Nevada general partnership, through its Minnesota division "Seller and THE CITY OF ROSEMOUNT, a Minnesota municipal corporation "Buyer A. Seller is the owner of approximately 0.5 acres of land in a project generally known as "Meadows of Bloomfield located on the northeast corner of Atnum Avenue and Autumn Path, in the City of Rosemount, Dakota County, Minnesota (the "Land The Land is depicted on Exhibit "A" attached to this Contract and is more particularly described on Exhibit "B" attached to this Contract. B. Seller desires to sell and Buyer desires to purchase the Land and related interests m accordance with the terms and conditions set forth in this Contract. FOR AND IN CONSIDERATION of the mutual covenants hereinafter set forth and other good and valuable consideration, the parties agree as follows: 1. Purchase and Sale. Seller hereby agrees to sell and Buyer hereby agrees to purchase the Land and all rights, privileges and appurtenances that benefit the Land (the Land and such other rights are referred to collecnvely as the "Pro er subject to and in accordance with the terms and conditions set forth m this Contract 2. Purchase Price. (a) Buyer will pay a purchase pnce for the Property (the "Purchase Price based on the number of gross acres of Land, as shown m the final Survey (as defined below), multiplied by $110,000. At Closing (as defined below), Buyer will pay the Purchase Price for the Property by wire transfer of unmediately available funds The amounts due from Buyer will be subject to the credits and adjustments to the Purchase Pnce provided for m this Contract (b) 3 Intentionally omitted. 4. Feasibility Period (a) RECITALS AGREEMENT Draft. 08/07/06 Feasibility Penod Buyer will have a penod of time beginning on the Effective Date and ending 30 days after the Effective Date (the "Feasibility Period to determine, in Buyer's sole and absolute discretion, whether the purchase of the Property is economically v iable or othenvise feasible or suitable to Buyer. At any time before (b) (a) (b) the expiration of the Feasibility Period, Buyer may terminate this Contract by notifying Seller in wnung If Buyer timely exercises this right to terminate this Contract, Buyer will, upon request from Seller, execute and deliver a quit claim deed to Seller, or a similar instrument that is reasonable in form, to evidence the ternunation of any right, title or interest of Buyer in the Property Thereafter, neither party will be obligated under this Contract. If Buyer does not exercise this tight to terminate the Contract on or before the expiration of the Feasibility Period, such right will be deemed waived and of no further force and effect. ns ection of the Pro gem. During the term of this Contract, Buyer and Buyer's employees, agents, representatives, consultants and contractors will be entitled to enter upon the Property to perform such mspecuons, testing and examinations of the Property as are reasonably deemed necessary by Buyer. This right of entry and inspection is subject to the following limitations: (1) (n) (m) 5. Title and Survey Review. Draft. 08/07/06 Before entering the Property, Buyer must provide to Seller advance nonce. Buyer may not cause any testing of the Property that is invasive (e g. drilling of holes) without Seller's prior written consent. Buyer must restore or repair, in a reasonable manner, any disturbance or damage to the Property caused by the acts of Buyer and Buyer's employees, agents, representatives, consultants and contractors. Buyer will hold harmless, defend and mdemnify Seller from and against any and all damages, expense and liability occasioned by any claim that may be asserted against Seller or the Property as a result of such invesugauons Notwithstanding any provision of this Contract to the contrary, the obligations of Buyer set forth in this section will survive termination of this Contract. Tide Commitment. Buyer will direct Chicago Title Insurance Company, 9855 West 78'° Street, Eden Prairie, Minnesota 55344, Attn Tammy Hartman, Tel: 952 -826- 3032, Far 952 -826 -3035 (the "Title Company") to prepare and deliver to Seller and Buyer within 15 days after the Effecuvc Date the following items (the "Title Documents (i) a cominitment for title insurance (the "Tide Commitment that sets forth the state of the title of the Property, and (u) legible copies of all exceptions to title disclosed m the Title Commitment. Survey. Buyer may obtain an ALTA survey of the Property prepared by a registered professional and surveyor (the "Survey The legal description on Exhibit "B" will be modified, if necessary, to reflect the legal description on the Tide Pohcy and Survey, finalized pursuant to the utle and sun-ey review process described below. (c) Title and Survey Review Process Within 15 days after receipt by Buyer of the Title Documents and Survey, but in any event prior to the expiration of the Feasibility Period, Buyer will provide written nonce to Seller of any exception to title or other matter shown on the Title Commitment or Survey to which Buyer objects (the "Objections The exceptions to title or other matters shown on the Title Comritment or Survey that are not Objections, together with general real estate taxes for the year of Closmg and subsequent years that are not yet due and payable, are referred to as "Permitted Exceptions." If Buyer fails to notify Seller in writing of the Objections within the applicable review period, title will be deemed accepted subject to the conditions set forth m the last issued Title Coinrmtment and Survey, but not subject to any Objecuons previously made. (d) Seller's Obhgauon to Cure Objections. Seller will have a period of 15 days after receipt of wntten notice from Buyer (the "Cure Period to notify Buyer whether Seller Intends cure (or arrange a cure) for the Objections. Seller covenants and agrees that prior to or at Closing it will discharge all hens, mortgages, contract for deeds, other encumbrances against the Property that secure any obhgation of Seller and any claims filed Lis contractors, suppliers or workers for work performed by such claimants at the request of or through Seller (the "Dischargeable Costs These Dischargeable Costs are automatically Objections, even if Buyer has not made a specific written Objection. Buyer will have the nght to credit against the Purchase Price all such Dischargeable Costs that are not so discharged by Seller. If Seller is unable or unwilling to provide a cure (or arrange a cure) that is reasonably acceptable to Buyer for any Objection within the Cure Period, Buyer may, within 10 days after the expiration of the Cure Period, either: (i) terminate this Contract, or (u) maintain this Contract m effect and proceed to cure the Objections at its sole cost, except for the Dischargeable Costs If Buyer fails to notify Seller of such election within the prescribed 10 -day period, Buyer will be deemed to have elected the option under clause (i). Seller agrees that during the term of this Contract it will not record new instruments affecting the Property without Buyer's prior wntten consent. (e) Tide Pohcy. At the Closing, Buyer may obtain an ALTA Owner's Pohcy of Title Insurance (the "Title Policy insurmg Buyer's Interest m the Property Seller has no obhgauon with respect to the issuance of the Title Policy. (0 Allocation of Cost. Buyer will be responsible for the cost of the Title Commitment and copies of the excepuon documents, the premium for the Title Policy and its endorsements and the cost of the Survey. 6. Closinp. (a) Draft 08/07/06 Closing The act of settlement of the purchase and sale of the Property where Seller conveys title to the Property to Buyer and Buyer pays to Seller the Purchase Price, subject to the terms and conditions set forth in this Contract, is referred to as the "Closing The Closing of the Property will occur on or before December 1, 2006 (the "Closing Date (b) Draft 08/07/06 Closing Procedures The Closing will be held at the Title Company's office or at such other place as may be mutually agreeable to Buyer and Seller. At Closing. (i) Closing Documents. Seller will deliver to Buyer the following items, at Seller's expense (A) A duly executed and acknowledged hmited warranty deed conveying good and indefeasible utle to the Property, free of all hens and encumbrances, except for the Permitted Exceptions; OD) 0 An owner's affidavit as to possession and no hens; (C) A FIRPTA or "non- foreign" affidavit, and Any other documents that reasonably may be required by Buyer or the Title Company to vest in Buyer fee simple title to the Property or to complete the Closing Payment. Buyer will deliver to Seller, at Buyer's expense, the following: (A) The Purchase Price, in accordance with Section 2 above; and Any other documents that reasonably may be required by Seller or the Tide Company to complete the Closing. Prorations Seller must pay all real estate taxes due and payable for all years prior to the year of Closing for the Property. Real estate taxes for the year of Closing for the Property will be pro rated between Seller and Buyer on a per diem basis as of the Closing Date. if the tax rate for the taxes assessed in the current year has not been determined by the Closing, the tax rate will be assumed to be the same as the prior year for purposes of this tax proration. All proratons will be finaL (1v) Special Assessments Buyer must pay all special assessments, interest and penalties levied against the Property, whether such. items are levied or assessed prior to or after the Closing. If any "Green Acres" taxes arise with respect to the Property, Buyer will pay such taxes. (v) Possession Seller will deliver complete and sole possession of the Property to Buyer. (c) Closing Costs. Seller will pay for deed preparation, but Buyer will pay the cost of any state deed taxes, the cost of recording the deed m the appropnate real property records and any other transfer taxes associated with the transaction. Each party will be responsible for the payment of its own attorney's fees incurred in connection with the transacuon that is the subject of this Contract. Seller and Bu} er will share escrow and closing fees charged by the Tide Company equally 7. Representations, Warranties and Covenants of Seller. (a) Representations and Warranties of Seller Seller hereby represents and warrants to Buyer as of the Effective Date and as of Closing as follows: (i) (u (in) (y Authority The execution and dehvery of this Contract by Seller and the consummation b Seller of the transaction contemplated by this Contract are within Seller's capacity, and all requisite action has been taken to make this Contract valid and binding on Seller in accordance with its terms. The individual signuig this Contract on behalf of Seller is fully authorized and empowered to sign this Contract on Seller's behalf Upon execution, this Contract will be fully binding upon Seller. No Legal Bar. Seller is not in default under any indenture, mortgage, deed of trust, loan agreement or other agreement to which Seller is a party and that affects any portion of the Property. The transaction hereby contemplated does not and on the Closing Date will not: (A) (B) Well Disclosure. Sewet Treatment Stem Disclosure (B) Draft 08/07/06 Result in a breach of or default under any indenture, agreement, instrument or obhgation to which Seller is a party and that affects all or any portion of the Property, or Violate any laws, ordinances, rules, requirements or regulations of any Governmental Authority (as defined below) that are apphcable to or otherwise affect the Property. Litigation There are no actions, suits, proceedings or investigations pending or threatened against the Property, including, without lnnitauon, condemnation or enunent domain claims, actions or proceedings. (iv) Parties in Possession. There are no lessees, tenants or other parties in possession of any pornon of the Property. (A) To Seller's knowledge, there are no "Wells," as defined m Minn Stat. 103I.005, Subd. 21, on the Property. This representation is intended to satisfy the requirements of Minn. Stat 115.55, Subd 6. If any wells are located on the Property, Seller will, upon notice, properly seal such wells and provide Buyer with "sealed we ll certificates evidencing that such wells have been properly sealed. To Seller's knowledge, there are no individual sewage treatment systems "systems"), as defined in bhnn. Stat 115.55, Subd 1, on the Property. This representation is intended to satisfy the requirements of Minn. Stat. 115.55, Subd. 6. (b) (c) Limitation on Warranties BUYER AChNOWLEDGES THAT, EXCEPT FOR THE WRITTEN REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER CONTAINED IN THIS CONTRACT AND THE WARR \NTIES OF TITLE TO BE SET FORTH IN THE DEED OF CONVEYANCE OF THE PROPERTY, SELLER HAS NOT MADE ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, AS TO THE PROPERTY. BUYER IS PURCHASING THE PROPERTY IN AN "AS -IS" PHYSICAL CONDITION AND IN AN "AS -IS" STATE OF REPAI R OTHER THAN AS SET FORTH IN THIS CONTRACT AND THE WARRANTIES OF TITLE TO BE SET FORTH IN THE DEED, BURR DOES HEREBY WAIVE, AND SELLER DOES HEREBY DISCLAIM, ALL WARRANTIES OF ANY TYPE OR hIND WHATSOEVER WITH RESPECT TO THE PROPERTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY OR USE. Buyer represents and warrants that Buyer has considered and assumed the risks that unforeseen condmons or events may be encountered which were not anncipared at the tune of the execution of this Contract. This assumption of risk shall apply to any unknown or unsuspected mlurv, losses, damages or consequences Buyer's decision to purchase the Property is based solely on Buyer's own independent mvestigauon of the Property and the merits of entermg into this Contract. Seller will have no responsibllity or hability to Buyer for Buyer's use of the Property or inability to use the Property for Buyer's intended purpose, other than due to a breach of a representation by Seller specifically set forth in this Contract. Covenants of Seller. Seller covenants and agrees that from and after the Effective Date, Seller. (1) May not perform any grading or excavation, construction or removal of any improvement or landscaping or otherwise make any other change or Improvement upon or about the Property, except that until the date of Closing, Seller will perform such activities as required to comply with storm water regulations; (ii) May not create or incur any mortgage, hen, pledge or other encumbrance affecting the Property; (in) May not comnut any waste or nuisance upon the Property; (iv) Must observe all laws, ordinances, regulations and restricuons affecting the Property, (v) May not cut or remove any trees; and (vi) May not bury any trees, stumps, boulders, trash, refuse or brush on the Property. Furthennore, Seller may not permit others to do anything on the Property that Seller is prohibited from doing under this Contract. Draft: 08/07/06 Draft 08/07/06 8. Representations and Warranties of Buyer. The execution and delivery of this Contract by Buyer and the consummation by Buyer of the transaction contemplated by this Contract are wtthrn Buyers capacm and all requisite action has been taken to make this Contract valid and binding on Buyer m accordance with its terms. The individual signing this Contract on behalf of Buyer is fully authorized and empowered to sign this Contract on Buyer's behalf Upon execution of this Contract, it will be fully binding upon Buyer 9. Breach by Seller. If Seller fails to fully and timely perform any of its obhgations hereunder, and such failure continues for 30 days after receipt of written nonce from Buyer (except that Buyer is not required to provide any wntten notice or cute period with respect to a failure by Seller to close by the Closing Date), then Buyer may, at its option: (i) terminate this Contract by written nonce dehvered to Seller, or (u) enforce specific performance of this Contract. 10. Breach by Buyer. If Buyer fails to fully perform any of its obhgations hereunder, and such failure continues for 30 days after receipt of wntten nonce from Seller (except that Seller is not required to provide any written notice or cure period with respect to a failure by Buyer to close by the Closing Date), then Seller may, as its sole and exclusive remedy for such default, terminate this Contract by written nonce dehvered to Buyer. Seller will not be entitled, and specifically waives the nght, to sue Buyer for specific performance or monetary damages 11 Brokerage Commissions. Neither party has done any act that will occasion the payment of any commission, finder's fee, or any other fee to any third party with respect to the transaction contemplated herein. Buyer agrees to indemnify, defend and hold harmless Seller from all costs, expenses and claims, mcludmg the cost of all reasonable attorney's fees, for compensation, commissions or charges claimed through Buyer by any realtor, broker or agent with respect to the purchase of the Property and the negotiation thereof Seller hereby agrees to indemnify, defend and hold harmless Buyer from all costs, expenses and claims, including cost of suit and reasonable attorney's fees, for any compensation, commissions, or charges claimed through Seller by any realtor, broker, or agent with respect to the sale of the Property and the negotiation thereof. 12 Survival. The representations, warranties, covenants, agreements and mdemnines set forth in this Contract will remain operative and will survive Closing and the execution and delivery of the deed for a period of 1 year from the Closing Date and will not be merged therein. 13. Assignment. The terms and conditions hereof are hereby made bindmg on the successors and assigns of both parties hereto. However, Buyer may not assign any right or delegate any duty hereunder without the prior wntten consent of Seller, which consent may be withheld by Seller only if acting reasonably and m good faith. Any attempted assignment or delegation without such prior written consent will be of no effect and void and will be a breach hereunder Seller may assign its nghts hereunder to its general partners or to another controlled affiliate of Seller without the prior wntten consent of Buyer. 14. Condemnation. If before Closing all or any portion of the Property or any rights or easements benefiting the Property are taken by condemnation or rights of enmient domam or like process of are thteatened therewith, Seller must, within 10 days after Seller's receipt of notification of such happening, provide written notice to Buyer. Buyer must, within 10 days after having received Seller's written nonce, elect m writing to either: (a) Continue this Contract m full force and effect, notwithstanding such taking or threatened taking, in which case Buyer will continue the purchase of the Property and any and all condemnation award with respect to the Property will be payable to Buyer; or (b) Terminate this Contract and neither party will have any further obhgauon under this Contract. 15. Notice. Any notice to be given or served upon any party hereto in connecuon with this Contract must be in venting, and delivered to the other parries (i) in person, (u) by facsmnle transmission (with confirmation of transmission available upon request from the non sending party); (m) by a nationally recognized overnight delivery service; or (w) by cerufied mail, return receipt requested. If notice is given m person or via facsimile transmission, notice is deemed to have been given when personal delivery was received by the party or when the facsimile transmission was transmitted If nonce is given by a nationally- recognized overnight delivery service, notice is deemed to have been given the day following delivery to the delivery service of such nonce. If notice is given by certified mail, notice is deemed to have been given 3 days after a certified letter containing such notice, properly addressed with postage prepaid, is deposited in the United States mail Nouces should be sent to the parties at the following addresses: To Seller: With a copy to: With a copy to: Joel S. Reed Scott J. Richter Centex Homes Minnesota Division 12701 Whitewater Drive Suite 300 Minnetonka, Minnesota 55343 Telephone: (952) 936 -7833 Telecopier: (952) 936 -7839 Erik Gunderson Centex Homes Minnesota Division 12701 Whitewater Drive Suite 300 Minnetonka, Minnesota 55343 Telephone: (952) 912 5114 Telecopier (952) 936 -7839 Draft. 08/07/06 (a) (b) To Buyer; 16. Miscellaneous. With a copy to: Centex Homes Midwest Region 14850 Scenic Heights Road Suite 125 Eden Prairie, Minnesota 55344 Telephone. (952) 960 -2021 Telecoprer: (952) 960 -2001 E -Mail: jsreed @centexhomes.com Andrew Brotzler City Engineer City of Rosemount 2875 145' Street West Rosemount, Minnesota 55068 Telephone (651) 322 -2025 Telecoprer: (651) 322 -2694 E -Mail: andy .brotzler @ci.rosemount.mn.us Charles L LeFevere Kennedy and Graven 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, Minnesota 55402 Telephone: (612) 337 -9215 Telecoprer: (612) 337 -9310 E -Marl: clefevere knnedy- graven.com Draft, 08/07/06 Entire Agreement This Contract embodies the entire agreement between the parties and cannot be varied, except by the wntten agreement of the parties. This Contract supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral, between the parries. Attorneys' Fees Costs. Venue If any legal action is commenced by any party to enforce any provision of this Contract, the losing party will pay to the prevailing party all actual expenses, including reasonable costs and attorney's fees, incurred by the prevailing party. The prevailing party is the party who receives substannally the relief sought, whether by judgment, suimnary judgment, dismissal, settlement or otherwise. Venue is proper in the county in which the Property is located. (c) Counterparts. This Contract may be executed m several original counterparts, each of which and all together will constitute this Contract in its entirety. A counterpart of this Contract or any amendment thereto executed by a party and delivered to the other party via telecopier will be construed as a legally binding signature, Without delay, the sending party should deliver an original, signed counterpart to the other party. (d) Headings. The headings contained in this Contract are for reference purposes only and do not in any way 'affect the meaning or interpretation hereof. (e) Recitals. Incorporated into this Contract by reference, as described above, are the Recitals. (t) Dates. Time is of the essence with respect to this Contract. If the final day of a period or date of performance under this Contract falls on a Saturdai Sunday or legal holiday, then the final day of the period or the date of performance will be deemed to fall on the next day which is not a Saturday, Sunday or legal holiday. (g) Escrow Instructions. This Contract, together with such modifications thereto as may be made by supplementary escrow instructions (if any) executed by the parties, constitutes escrow instructions to the Title Company. (i) Enforceability. If any provision of this Contract is adjudged to be mvand or unenforceable by a court of competent jurisdiction, this Contract should be construed as if such mvand or unenforceable provision had not been inserted herein and should not affect the validity or enforceability of the remainder of this Contract. No Third Party Beneficiaries Nothing in this Contract, expressed or implied, is intended to confer any rights or remedies under or by reason of this Contract on any person other than the parties to it and their respective permitted successors and assigns. Furthermore, nothing m this Contract is intended to relieve or discharge any obhganon of any third person to any party hereto or give any third person any right of subrogation or action over or against any party to this Contract. 0) No Partnership. Nothing contained herein and no act by Buyer or Seller m the performances of, or in any way related to, this Contract should be construed to create or evidence in any manner any employment, partnership, agency or joint venture relationship between the parties hereto. Buyer and Seller represent and acknowledge that it is their mutual intention that the sole relationship created between them by this Contract is that of vendor and purchaser. Construction. All of the parties to this Contract have participated freely in the negotiations and preparation hereof. Accordingly, this Contract should not be construed more strictly against any one of the parties Interstate Land Sales Act. Seller and Buyer acknowledge that the sale of the Property are exempt from the provisions of the federal Interstate Land Sales Full Disclosures Act, pursuant to 15 U.S.C. §1702(a)(7), because Buyer is purchasing the Property for the purpose of either (i) engaging in the business of constructing residential, commercial or industrial buildings, or (ii) reselling the Property to persons engaged in such construction business Governmental Authoriry. As used in this Contract, the term "Governmental Authority" means the federal government, the State of Minnesota, Dakota County, City of Rosemount, and any agency or mstrumentahty of them, or (k) (m) (n) -10- Draft. 08/07/06 (o) (P) q) Draft 08/07/06 other board, agency, or district, whether public or private, having lunsdiction over the Property or any portion thereof and whose approval is necessary to the satisfaction of any of the foregoing conditions, including any public or serm -public authority, board, agency, district or other organization Waiver. Failure of either Buyer or Seller to exercise any right given hereunder or to insist upon strict comphance with regard to any term, condition or covenant specified herein, will not constitute a waiver of Buyer's or Seller's right to exercise such right or to demand strict compliance with any term, condition or covenant under this Contract. Choice of Law. This Contract is governed by and construed in accordance with the laws of the State of Minnesota. Offer. The offer to sell or purchase the Property evidenced by a party's execution of this Contract will expire automatically (without any further notice from or action by such party) at 5.00 p in. (CST) on the 5 day after the date on which the first party signed the Contract, unless the first party to sign receives a signed copy of the Contract from the second party by that time. [The remainder of this page is mtentronally left blank.] EXECUTED as of the last of the dates indicated by the signatures below, which will be deemed to be the Effective Date hereof for all purposes SELLER: CENTEX HOMES, a Nevada general partnership By: Centex Real Estate Corporation, a Nevada corporation, Its managing general partner By: Scott]. Richter Minnesota Division President Signature date: -12- BUYER: CITY OF ROSEMOUNT, a Minnesota municipal corporation By Name: Its: Signature date: Title Company has received this Contract on 2006. TITLE COMPANY: CHICAGO TITLE INSURANCE COMPANY By: Name: Title: Draft: 08/07/06 I: \Legal \MN -Real Estate \Rosemount -Craig Minea- Meadows of Bloomfield \Sale of Well Site to City of Rosemount \Sale Contract- Meadows of Bloomfield Centex to City of Rosemount -Draft 1 080306 DOC EXHIBIT "A" Site Plan Exhibit "A" EXHIBIT "B" Legal Description of Property That part of the northwesterly 150.00 feet of OUTLOT F, MEADOWS OF BLOOMFIELD, according to said plat on file and of record m the office of the County Recorder, Dakota County, Minnesota, lying westerly of the easterly 178.00 feet thereof. Exhibit 'B"