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"