HomeMy WebLinkAbout4.e.4. Review of Draft Purchase Agreement with Muller Family Theaters t �
CITY OF ROSEMOUNT
EXECUTIVE Si7MMARy gOR ACTION
PORT AUTHORITY MEETING DATE: JANUARy 18, 1994
AGENDA ITEM: REVIEW OF DRAFT PURCHASE AGENDA SECTION:
AGREEMENT WITH MULLER FAMILY THEATERS WORK �'ESSION
PREPARED BY: JOHN MILLER, AGENDA N0.
ECONOMIC DEVELOPMENT COORDINATOR 4 . E. (4)
ATTACffi�IENTS: DRAFT PURCHASE AGREEMENT ,�pp ^�D y;
Attached for your review and consideration is a draft purchase agreement
submitted by Muller Family Theaters for the purchase of ten acres of land
in the Rosemount Business Park. Mr. Miles will review the documents with
you as he was charged with negotiating the document.
If you wish to accept the agreement, as may be amended, it can be placed on
the February 1 agenda under Committee of the Whole Reports.
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RECO�iENDED ACTION: None. Discussion item.
PORT AIITHORITY ACTION:
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PURCI3ASE AGREEMENT
1. PARTIFS. The parties to this Purchase Agreement (hereinafter refened to as the
"Agreement") are as follows:
(a} The Rosemount Port Authority, a body corporate and politic organized under
the laws of the State of Minnesota, ("Seller"), whose address for purpc�ses of this
Agreement is 2875 - 145th Street West, Rosemount, Minnesota 5506$; and,
.
(b) Muller Family Theatres, a Minnesota general partnership ("Buyer"), whose
address for purposes of this agreement is Rt. l, Box 19, Maple Lake, Minnesata
55358.
2. PRUPERTY. The real property that is the subject of this Agreement is located in
Dakota County, Minnesota and is legally described on the attached F.xhibit "A". This
Agreement shall refer to the real property described on Exhibit "A" as the "Property". No
personal property shall be conveyed pursuant to this Agreement.
3. PURCHASE AND SALE. Seller agrees to sell the Property to Buyer pursuant to the
terms of this Agreement, and Buyer agrees to purchase the Property from Seller pursuant to the
terms of this Agreement.
4. PURCHA.SE PRICE. The purchase price for the Froperty is Sixty-Five Thousand
Dollars ($65,000.00) (the "Purchase Price").
5. TERMS. Upon Seller's full performance of Seller's obligations under this Agreement,
Buyer shall pay the Purchase Price to Seller as follows:
(a) Earnest money of S'vcty Thousand Dollars ($60,000.00), receipt and sufficiency
of which is hereby acknowledged in the following manner: (i) Twenty-Nine
Thousand One Hundred Dollars ($29,100.00)cash which is hereby acirnowledged
paid on July 28, 1993; and (ii) Thirty-Five Thousand Eight Hundred Ninety-Nine
Dollars ($35,89�.00) cash paid herewith; and,
(b) One Dollar ($1.00) in cash, certified funds or wire transferred funds at closing.
: -, 6. TITLE. Upon Buyer's full performance of Buyer's obligations under this Agreement,
'� Seller shall execute and deliver to Buyer a Limited Warranty Deed which limited warranty deed
' shall only cover the period during which Seller has title to the Property, and shall be subject
only to:
(a) Building, zoning and subdivision sta.tutes, laws, ordinances and regulations;
(b) Reservations of minerals or mineral rights in favor of the State of Minnesota., if
any;
(c) The lien of real estate taxes and special assessments, if any, not yet due and
payable;
(d) Utility, drainage and other easements of record, if any;
(e) Covenants, restrictior�s an;d declarations af record, without effective forfeiture
provisions;
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The Port Authonty Declarat�on, �`:W:.}.�..yl::::::�:�:����i:>�::���:ct:`�<��.��;��`without
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effective forfeiture provisions; and
(g) Those specifically set forth on E�ibit �$,
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(hereinafter, collectively, the "Permitted Encumbrances").
7. POSSESSION. Upon Buyer's full performance of Buyer's. obligations under this
Agreement, Seller shall deliver possession of the Property to Buyer, provided, however, Buyer
shall have the right to enter upon the Property prior to closing as described in paragraph i6.
8. CLOSING. The Parties shall meet at the offices of O'Neill, Burke, O'Neill, Leonard
& O'Brien, 100 South Fifth Street, Suite 1200, Ivtinneapolis, Minnesota on or before
, 1994, or at such later date as the Parties may establish pursuant to a written
extension agreement (the "Date of Clasing"), at which time:
(a) Seller shall:
(i) convey title to the Property to Buyer consistent with Section 6 above;
(ii) execute and deliver to Buyer Minnesota Uniform Conveyance Form
Affidavit 117-M;
(ui) pay or provide evidence of payment of the following: the State Deed Tax
due if any upon the execution of the conveyance describetl in Section 6
above; the fees due upon the recording of any documents necessary to
place record title in the condition provided for in this Agreement; the
commission or fee due any real estate agent that Seller has employed in
, connection with this transaction;
� ;, ' (iv) execute and deliver the Developers Agreement; and
(v) deliver all other documents reasonably required or necessary to transfer
the Property to Buyer consistent with the terms of this Agreement.
(b) Buyer shall:
(i) tender the Purchase Price pursuant to the provisions af Section 5 above;
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(u) pay or provide evidence of payment of the following: the fees due upon
recording the conveyance from Seller to Buyer; and any reasonable and
customary fees imposed by any closing agent engaged to close this
transaction;
(ui) pay for the costs relating to the abstracting, the title commitment and title
Pou�Y�
(iv) execute the Developers Agreement; and
.
(v) deliver all other documents reasonably required or necessary to transfer
the Prc�periy to Buyer consistent with the terms of this Agreement.
9. TITLE EI�;ANUNATION. Title examination will be conducted as follows:
(a) Seller's Tifle Evidence. Seller shall on or before fifteen (15) days after this
Agreement has been executed by Seller furnish buyer with a Commitment ("Title
Commitment") for an Owners Policy of Tifle Insurance insuring tifle to the
Property, in the amount of the Purchase Price, issued by Old Republic National
Tit1e Insurance Company by its agent Dakota County Abstract Company (the
"Title Company"). The Title Cammitment will commit the Title Company to
insure title to the Property subject only to those matters listed on E�ibit A
attached hereto and made a part hereof(the "Permitted Encumbrances") and other
matters approved or accepted by Buyer. Seller shall aiso deliver to the Title
Company an abstract of title to the Property.
(b) Bu�er's Objections. Within ten (10) days after receipt thereof, Buyer will make
written objections ("Objections") to the form and/or contents of the Title
Evidence other than the Permitted Encumbrances. Buyer's failure to make
Objections within such time period will constitute waiver of Objections. Any
matter shown on such title evidence not dmeiy objected to by Buyer shall
thereafter be deemed to constitute a "Permitted Encumhrance" hereunder. Seller
will have sixty (60) days after receipt of the Objections to cure the Objections,
during which period the closing will be postponed as necessary. Seller shall use
its best reasonable efforts to carrect any Objections. To the extent an Objection
can be satisfied by the payment of money, Buyer shall, after thirty (3Q) days grior
, written nofice to Seller, have the right at Closing to apply a portion of the cash
payable to Seller at the Closing to reasonably cure such Objection if Seller has
% not otherwise then cured or provideci for the cure of such Objection. The
• satisfaction of such Objectian and tt�e amount so applied shall reduce the amount
of cash payable to Seller at the Closing. If the Objections are not cured within
such sixty (60) day geriod, Buyer will have the option to do any of the following:
(i) terminate this Agreement and receive a refund of the Earnest Money in
which event neither party shall have any further obligations under this
Agreement except as provided in paragraph 3(c).
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(u) waive the Objections and proceed to close.
(c) Title Policv. Se;Ier will furnish to buyer in accordance with paragraph 4(a)
above, at closing the title policy ("Title Policy") issueri by the Title Company
pursuant to the commitment, or a suitably marked up commitment initialed by the
Title Company undertaking to issue such a Title Palicy in the form required by
the Commitment as approved by Buyer subject, however, to Buyer's obligation
to pay the premium for the issuance of the Title Policy pursuant to paragraph 8(b)
above.
,
10. PRORATIONS. Seller and Buyer agree to the following prorations and allocation of
cost regarding this Agreement:
(a) Tit1e Insurance and Closing,Fees. Buyer will pay all costs of the title company
for applicable searches and updating the abstract and the premiums required for
the issuance of the Title Policy and for the issuance of a mortgagee's policy, if
any. Any closing fee imposed by the Title Cornpany shall be split fifty/fifty
(50/50) between Buyer and Seller.
(b) Real Estate Taxes and S,pecial Assessments. Seller will pay, on or before Closing
Date, all special assessments current�y levied against the Property including
without limitation any installments of speciai assessments and interest payable
with general real estate taxes in the year of closing. Special assessments which
become pending or levied after the date hereof shall be assumed and paid by
Buyer. General real estate taxes and installments of sgecial asses�ments payable
in the year prior to the year in which the closing takes place and all prior years
shall be paid by Seller. General real estate taxes payable in the year that the
closing takes place shall be prora.ted between Seller and Buyer to the Date of
Closing.
(c) Recording Costs. Seller will pay the costs of reeording all documents necessary
to place record title in the condition wau�ranteri and representecl by Seller in this
Agreement. Buyer will pay the costs of recording all other docurnents including
the Limited Warranty Deed.
(d) AttorneYs Fees. Each party shall pay its own attorneys fees, except that a
, defaulting party under this Agreement or any closing document will pay the
: reasonable attorneys fees and court costs incurred by the non-defaulting pariy to
�. ' enforce its rights regazding such default.
11. REPRESENTAT'IONS ANU WA,RRAN'I'IFS BY SELLER. Seller represents and
. warrants to the Buyer as follows:
(a) Tit1e to Proneriv. . ,
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" " Seller on the Date of
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Closing will own; the Property, free and clear of all encumbrances exceFt the
Permitted Encumbrances.
(b} Wells. Seller has no knowledge of the existence of any wells on the Property.
(c) Environmental Laws. To the best of Seller's knowledge:
(i) There has not been any generation, treatment, storage or disposal of
,
hazardous substanee onto, into, at or near the Property except in
accordance with federal, state and local statutes, regulations or ordinances
applicable at the time of closing;
(ii) There has not been any release of any hazardous substance onto, into, at
or near the Property in violation of any applicable laws or regulations in
effect on the Closing Date;
(ui) Seller is in compliance with all applicable federal, state and local statutes,
regulations, ordinances and rules regarding the handing of hazardous
substances, if any, at the Property; and
(iv) There are no above ground nor underground storage tanks located in or
ahaut the Property.
As used herein, the term "hazardous substance" means any hazardous, extremely
hazardous or toxic substance, material, waste, pollutant ar effluent including, but
not limited to, asbestos, petroleum and those substances, materials or wastes
listed in or under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. 9601, et. seq.), as amended by the Superfund
Amendments and Reauthorization Act of 1986 (Pub. L. No. 99-499), and
regulations promulgated thereunder, and such other substances, materials, wastes,
pollutants, air pollutants, toxic pollutants or effluents that are presently regulated
under applicable federal, state and local statutes, regulations, ordinances or rules,
and amendments thereto.
As used herein, the term "release" means spilling, leaking, pumping, pouring,
, emitting, emptying, discharging, injecting, escaping, leaching, dumping ar
: disposing of any hazardous substance into or on the solid or waters in, on or
�, ' under the Property.
The parties agree hereby that with respect to this Section 11(c), the Seller's
. representations and warranties shall be limited to those representations and
warranties given to the Seller by Abbott pursuant to the Abbott Purchase
Agreement. The parties further agree that in no event shall Seller be liable for
the clean up, disposal of or other corrective action regarding any hazardous
substance discovered on the Property, provided, however, the Seller agrees to
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assign to Buyer all rights of subrogation, indemnity or contribution to which it
may be entitled in the event of such clean up, disposal or corrective action.
Further, Seller states to Buyer that it intends to require a similar exculpatory
provision in all future purchase agreements for sales of lots within the Business
Park, unless the Seller in its sole discretion chooses not to include sueh a
provision in future saies. Buyer, by agreeing to such exculpatory provision is not
thereby agreeing to undertake or become liable far any such clean-up, disposal
or corrective action.
(d) FTRPTA. Seller is not a "Foreign Person", "Foreign Partnership", "Foreign
Trust", or "Foreign Estate" as those terms are defined in Section 1445 of the
Intemal Revenue Code.
(e) Authori . Seller has all requisite authority to enter into this Purchase Agreement
and to consummate this transaction contemplated hereby.
(fl ProceedinQs. To the best af Seller's knowledge, there is no action, litigation,
investigation, condemnation or proceeding of any kind pending or threatened
against Seller and affecting any portian of the Property.
12. LIlVIITATION OF SELLER'S REPRESENTATIONS AND W . It is
understood and agreed by the parties that Seller has no authority to bind the City of Rosemount,
Minnesota, the Rasemount City Council or any other governmental body, other than Seller, to
issue any needed permits or authorizations relating to the Project described in Paragraph 17 and
that Seller is not expressly or otherwise representing or warranting that such needed permits or
authorizations wili be issued. ,
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13. CROPS. The parties acknowledge that a portion of the Property ' , ei�g.�.:�:�
� rented for agricultural purposes
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�-��a�}covering the 199?�growing season�-�t-�et�������Q�;��s����may have crops
or other agricultural product growing on other portions of the Property���(thefr�"Crops"). It is
hereby agreed that all rent or other income payable pursuant to ���.� lease shall remain
, the sole property of ��e�i�:� and that �A����� shall be entitled to remove all of
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; �����`.� s crops following the Date of Ciosing in a�reasonable manner, ���;:>s�:��::��. s
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14. CONDEMNATION. If, prior to the Closing Date, eminent domain proceedings are
commenced against all or any part of the Property, Seller shall promptly give notice to Buyer
of such fact and at Buyer's option (to be exercised within thirty (30) days after Seller' notice),
this Agreement shall terminate, in which event neither party will have any further obligations
under this Agreement except as specifically set forth herein, and the Earnest Money shall be
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refunded to Buyer. If Buyer shall fail to give such notice, then there shall be no reduction in
the Purchase Price, and Seller shall assign to Buyer at the Closing Date all af the Seller's right,
title and interest in and to any award made or to be made in the condemnation proceedings with
respect only to the Property it being understood and agre�d that nothing herein shall be construed �
as giving Buyer any right or interest in any eminent domain proceeding affecting any portion of
Seller's property other than the Property. Notwithstanding the foregoing, if either the Seller or
the City of Rosemount is the entity which commences condemnation of the �"roperty, this
Agreement shall be unaffected thereby.
15. BROKER. T'he parties represent to each other that neither party has employed any
broker in connection with this transaction and each agree to indemnify and hold the other
harmless from and against any and all claims for a real estate commission or fee in connection
with ttus transaction.
16. CONTINGENCIES. Buyer's performance under this Purchase Agreement is contingent
upon:
(a) Buyer obtaining, both at Buyer's sole cost and expense, soil tests which indieate
that the Property may be improved without extraordinary building methods or
costs, and
(b) Buyer obtaining satisfactory evidence that the Property shall have a right of
access to and from a public road to enable the development and the operation of
the Project.
Buyer shall have thiriy (30) days from the date of this Agreement to obtain such tests or
information. In the event Seller does not receive notice from Buyer of unacceptable tests or
information within thirty (30) days of the date hereof, the contingencies set forth in this Section
shall be deemed waived and the Parties shall proceed to close. In the event that Buyer
provides Seller with certified test results from a professional soil testing source which indicates
that the �roperty cannot be utilized for the Project �as defined in paragraph ���, without
extraordinary building methods or costs, then Buyer may, within fhirty (30) business days of the
date hereof, notify Seller that this Agreement is terminated. In��such event, and provided that
Buyer provides Seller with a lien waiver from the soil testing professional., all earnest money
shall be returned to Buyer, and neither party shall have any further obligation to the other.
, 17. THE PROJECT; EARI,Y ENTRY, INDEMNIF'ICATION.
� {�' 17.1 THE PROJECT. As additional cc�nsideration for Seller's Agreement to sell the Property
�to Buyer, Buyer shall construct within the Seller's Business Park (described below) on the
Property, a project which will consist of a ten-screen movie thea.tre complex " �ejee�,
The Buyer sha11 construct ten auditoriums which will consist of approximately 168 to 440 seats
per auditorium, with a minimum seating capacity of 2,200 seats. The theater building will
cansist of approximateiy 35,000 square feet and is to be constructed by the spring of 1994 at a
cost of approximately Two Million Nine Hundred Forty-Nine Thousand Dollars
($2,949,OOU.00}. The parking area for the Project will consist of approximately 600 pazking
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spaces. In the event that Buyer fails to so complete the construction of the Project�:�.�;:��i�
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�i���>����i�;��:Y:`�±"l��tizi;::����� Seller ma exercise the remed set forth in Para ra h 27 the
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in con�unction with the construct�on of the Project. The Buyer ��t�e-�es-���a�:?:���>:�i�
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17.2 EARLY ENTRY ONTO THE PREIVIISFS. At all reasonable times prior to the
closing, including times fallowin� any inspection period, the Buyer, its agents and
representatives shall be entitled, at Buyer's own expense, to:
(a) Enter upon the Property upon reasonable notice and during normal business hours
to perform inspections and tests of the Property, including soil and percolation
tests; and
(b) Make such investigations with regard to zoning and building code requirements
as are necessary for the Project;
(c) To enter upon and survey the Property and prepare a means of access to the
Property to allow commencement af construction of the Project as soon as
practicable after issuance of all appropriate permits; and
(d) To make investigations and conduct its own environmentai assessment of the
Property, if it deems so necessary.
To that end, in the event any e€-��-�rops or other agricultural product�aze damaged or
destroyed during the course of the above-described testing, Buyer hereby agrees to reimburse
to Seller� or to ��i�third party licensee, as approgriate, the market value of��
crops or agricultural products�so damaged or destroyed.
: � Further, such aecess shall be subject to the following limitations:
; '
yn. . ...... Yitir:r{:{:.}:A'y+::�....:ti' .;y{.s;r.-r v �
� G�) Buyer e���n-�e��'���: prior written �;a�:��::;�::::S�e�`:<:�i enter
. ��::::::. ......,:>.,,..>:::;:<:�.:�:«.ti:.>::;A:;::t::::.<,.:
:.. ..:. .::.::.::..::..
the Property as set forth above;
(�) It shall restore the Property to a condition substantially the same to that which
existed prior to such testing (less the Crops); and
(�) Reimburse the Seller, "'�'���� � �'��y:q��;�y third party licensee at the rate of
-s-
�.t�e:`:��i��`>���>'::;:IDollars $> �fl�{� r acre for. �te-��:�;:�ro s or a ricultural
»,�.. . ......... ......:::.:�:.: � ��:v�•:;>::::.;.) Pe .:;:.�:»::. P g
praduct,��as��damaged or destroyeci. Such payment shallf be made within five {5)
days of the invoice from the e��11� to Buyer.
�
In pursuing its inspections under this section -��'�, Buyer will carry out or cause to be carried
out the inspections in an orderly manner in full�compliance with all applicable laws, rules,
regulations and codes and any reasonable direction of Seller-e�-��be�E. Upon completion of khe
inspections in the event the parties fail to consummate this Purchase Agre�ment, the Buyer shall
nonetheless be obligated to restore the Property in the manner provided above.
.
17.3 INDEMNIFICATION. The Buyer assumes full responsibility for the tests and for any
and all damage or losses suffered by Buyer-er�t�e�, Seller;-�e�� or the agents, contractors,
employees, invitees, licensees or tenants of any such parties, arising from Buyer's entry upon
the Property and conducting the tests and investigations as provided in this section��;�. Buyer
shall indemnify and hold ��:;:;;harmless "n„�� �a ""��+` against any and all Xliabilities,
obligations, damages, penalties,+claims, costs and expenses and including reasonable attorneys'
fees incurred as a result of such entry upon the Property or by a breach of this section �§:��.
18. BUSINFSS PARK.
(a) The Seller is in the process of completing the development of a business park
develo ment which will initiall :+":`'�'�� ��'.',��`�n�' '�.. � �- -�A Q�mV�'
consist of:`:.>:::;;<;�;:.... :;:�ga�y:���:�:sN�.��:�i
........ .P.. ......... ...... . ........... . .......y........ .......... ..�;�'�t3.':::;;:«,;.:..:;.:.:.;..<;.:::;::.>.:.::::.,..�..:::...:..::.:.:..:r...,,.:.::,::,;.:,:
. .y.n�. ..v;A :y;..i'v''e :.;..;,.
..{r{C,y,.;..�.?��: ..�.i:::{r.:{i. ::;\}hl,.:r..iv�4:
:: :.::. ... .,_ . .... ...:.. a�
'>�•.`•.�>:�'-'�`: (+�y';�:::��
:<;:::; ,.:;.s>:;:::...;><>...:....::.::.:::::<s::..;:.;�...;:.:::;:.::._.;;>:;;.:_:;_ .
�:�:�::<:ti�:'#�i�:::::�b�i�,�:>:::�f�;:�:��::>�C�l�i�<>:��••�<::'�:`.D��i£:;�:::�::�:��r:::?��sFt�`��:........ ......_::;.:...............
:.:.n::::�:.i�:::::::::::::::::::::::: : •..,?;..,....::::.�::::._:::::�.::�'°a.'•.�:.X•:..:..;.;...:
::::.:.�:.::::;�•.::::.::::::.....................................�•:::::.::::::............ �......
.,•::::.�:::::....:::::::::::::•::;.:;:::..:::.>:.:r��>:o-x.::r::.::::�o;:::,::.::::::::.;::::;:.:::;.:::::::::::+.��::�::::::::::::.:::::::::..,.:.::•::;:::.;.:..,.::.<.,.•...:.....:.:............ .f............,»..
�::�:;p::,,...;,;:�r�x: ::�;:•�:::.;:. :•:�.<•:.::....:::.,..::....,... *�,`. A t+t,�^4�.
. :. .: .:..:....:. ...:..::. ., ,::...>::::.;:;,:k"':;>:;o-:>x:::�'::E:i�...�>::,-.`.>::;:.:::::�:.'::a::<:x:`:•:`t:::: :•`:.�la:;t..r:}::::>t:'.;:;"CSiE.�'I�'VVVCS
��:�«:��::��:>��:��e:::;�as�>:��:::����?::'t��:�a!�^_:���:::��w�.� :;:<:�ta:��s�ia
::�r.:;;u;x•x;::<:•::a:>:•:�:::•::::•::;•:::•::;:•::n::�>::::;:c.r:•::::: ..,.....•:;?::;•:,�.....:;r:;x::;��r:::::r.•>;:.::•:::::�:_::�:::•::::;:::�T.:::.�.::....................
::.::: ..::::
-..:.::....... ..................
�e�e'�` (°Business Park").
(b) In the event the plat of the Business Park which would create the platted
description of the Property is not completed on or before the Date of Closing, the
Seller agrees to convey the Property in its metes and bounds description. The
legal description of the Property will be amended to conform with the Business _
Park subdivision legal description. It is intended that the new description will
include the Property in its entirety. The parties agree to execute whatever
documents aze necessary to accomplish this intent including qui't claim deeds and
other appropriate and necessary �conveyances. The Buyer agrees to caoperate
fully with Seller in the plat process and will agree to execute any and all
documents which are appropriate and necessary for the completion of the plat
, process.
� ' (c) The Buyer further recognizes that the Property will, upon conveyance to it by the
� Port Authority, be subject to certain easements, covenants and restrictions ("Port
Authorit Declaration" �«;>:7:-�.:�,$,�:.i�._.i:.i::�:.;�:�..,,,.,..;:::;:<:��::�:_.+,....,,,+.:...:,,�;::>v<.:>.:K�. The Bu er
Y ) ��?����c�.�s� .,�...�N���;r:>:b Y
agrees to take the conveyance of the Property subject to such�Port Authority
Declaration, provided however, that such restrictions and easements created
therein shall not adversely affect the location of the improvements within the
Project as anticipated by Buyer's plans and specifications, as finally approved by
the Seller and/or the City of Rosemount. Seller agrees to submit to the Buyer the
—9—
proposed Port Authority Declaradon prior to the execution of such Port Authority
Declaration by the Seller, or review and comment by Buyer.
19. DEFAULT. If either Party defaults in the performance of any of the Party's obligations
under this Agre�ment, the rights of the non-defaulting Party are as fallaws:
(a) Bu�.er's Defauit. If Buyer defaults in the performance of any of Buyer's
obligations under this Agreement, Seller shall have the right terminate this
Purchase Agreement pursuant to Minn. Stat. Section 559.21 and retain all earnest
money�pursuant to Minnesota law.
(b) Staecific Performance. Either party shall have the right to commence an action
for specific performance of this Agreement upon breach by the other party
provided that such action is commenced within six (b) months after such right of
action arises.
20. TIlVIE. Time is of the essence for all provisions of this Agreement.
21. ASSIG11f�►�IFNT. Neither Party may assign the Party's rights and obligations under this
Agreement to a third party, at any time, without the other Party's consent.
22. NfJTICES. All notices provided for in this Agreement shall be in writing. The notice
shall be effective as of the date the Party sending such notice deposits the notice with the United
States Postal Service with all necessary postage paid, for delivery to the other Party via certified
mail, return receipt requested, at the address set forth in Section 1 above. If a Party delivers
a notice provided for in this Agreement in a different manner than described in the preceding
sentence, notice shall be effective as of the date the other Party actuaily receives the notice. The
Party sending the notice shall also mail a copy of the notice to the Parties' respective attorneys
via first class United States mail at the addresses set forth below:
Attorney for Buyer: Daniel R. Tyson
O'Neill, Burke, O'Neill,
Leonard & O'Brien �
100 South Fifth Street, Suite 1200
Minneapolis, Minnesota 55402
. Attorney for Seller: J. Michael Miles
. , Fluegel, Moynihan & Miles, P.A.
' 1303 Sauth Frontage Raad
' Hastings, Minnesota 55033
. 23. FULL AGREEMENT. The Parties aeknowledge that this Agreement represents the full
and comp'lete agreement of the Parties relating to the purchase and sale of the Property and all
matters related to the purchase and sale of the Property. This Agreement supersedes and
replaces any priar agreements, either oral or written, and any amendments or modifications to
this Agreement must be in writing and executed by both Farties to be effective.
-io-
24• G-OV�:RNING LAW. This Agreement has been made under the laws of the State of
Minnesota and such laws shall control its interpretation.
25. SUItVIVAL. All the terms of this Agreement, to the extent not intendetl herein to be
perfarmed prior to or on the Closing Date, will survive and be enforceable after the Clasing.
26, EXECUTION. The Parties may execute this Agreement in counterparts, each of which
when so executed and delivered shall be an original, but such counterparts shall constitute one
and the same instrument. In the event this Agreement is executed in counterparts the date of
this Agreement �hall be the date the last Party signs the Agreement.
27. LETTER OF CREDIT: BUYER'S PERFORNIA�NCE. Buyer shall, at the time of
closing, deliver to Seller an irrevocable Letter of Credit in the amount of$�:���x#�, payable
:.....;.w,>,��.,M;�..�>
to Seller as beneficiary, which I.etter of Credit shall secure the Buyer's obligation to construct
the i�ej���i�:�{�j:y:�.""::;::"oV��€3��s as defined in Para ra h 17 ""::y>".`<'�""�"'.:.""'�"."�`
.,.y:<;.,:;:;;.:�.:>.::;�>:««<.�� � P , on or before ��:�r:�.A;��s
��:�:� after issuance of all��appropriate permits and licenses necessary fvr the commencement
of construction of the Project ("Substantial Completion Date").
In the event Buyer fails to substantially complete the construction of the Project by the
Substantial Completion Date (unless such failure is due to acts of God, casualty, changes in law
or other impediment to the completion of construction due to circumstances or events not within
the control of Buyer), Seller may, upon thirty (30) days written natice to Buyer and Buyer's
failure to cure within such time, present such Letter of Credit for payment.
SELLER:
Dated: THE R�SEMOUNT PORT AUTHORITY
By:
Its:
By:
Its: �
BUYER:
. Dated: MULLER FAMILY THEATRES,
� �, a Minnesota general partnership
1,
. By.
Its: Partner
By:
Its: Partner
eharelrrwlierlpurchapr.crrr
—11—
EXHIBIT "A"
(Legal Description)
;, '
-12-
E%HZBIT "B"
PERMITTED ENCUMBRANCES
1. Subject to the ordinances of the County of Dakota.
2 . Existing roads. Highway and utility easement for County Road
42 granted to Dakota County in Document No. 450575.
3 . Slope easement in connection with County Road 42 granted to
Dakota County in Document No. 450632 .
4 . Crop leases for calendar year 1993.
5. Terms, provisions and covenants contained within the Declara-
tion of Business Park Covenants.
6. Utility and drainage easements as shown on the recorded plat.
• ',
;
-13-
F�U�EGEL MOYNIHRN TEL No . 16124389777 Jan 14 , 04 13 : 13 No .005 P .01
Post-!tTM'brand ta.x transmittal memp 7571 RotpaDs� ►
From
' . COkI�''ZJaFkITZAL
Drpt, Pno�4 r" ATTORNEY-CL I ENT
r
"`N F•x�' CaM�1UN I GAT z ON
._-_-..,.__._. �
_..�..--...�....,,�.�..�.�.w..,...�.,�.,...._�..�.....
M E M O R A I�T D U PS
7`Qs Chaix Ed bunn and Members of �he Rasemount Part Authority �
FRqM: Mike Mi�er�'�ity Attorney
`� :
DATE: January 19 , 7.99A �'
}2E: Dra�t purGhase Aqreement AeLween the RPA and the Muller �
Family !
AL•fi.ached is the st ��
mp rec�nt incar.n�t�,an of the proposed
Purchase Agreement batween the R�A and MuXler Farnily Theatres which
address�s the sa�e of approxxmately ten acres of land in th� RPA's
Bu�iness Park. The principal purposes of this memo azr� twofold:
( 1 ) �.a provide :yau a key wi#:h which to read the crass-outs and
highli.ghting� a�n the attached draft and, ( 2) stY�r_c my
recommendations with you r�garding the adequacy and a�visal>ility of
the conditions contained j.n th� dr.�ft Purchase Agreement ,
With respect ta the strange markings wt�ic}� dp�i�dl� �t_ v��s'ivus
places z.n the Purchase Agreem�nt, i:he �o��owing appli�s . Language
wha.ch has a line drawn through it repres�nts v�rbiaqe whi.ch exist.ed
in p�evious drafts of the �ux-chase Agreement and which t}ie Mullers
ars currently propoeing be eliminated trom th�.s dx'aft . Words which
ar� highlighted (appeaar inside of gray backgr�und } is ].anguage
which did nat appear in previous dr.af.ts and .is being added for
consid�ratian in this rendition of the Purchase Agr,�ement . 1�s to
my xecommend�ti�ns ta you regaxding thi.� draft, please note that,
except tox' comment number 1, below, X am only addressing those
ax�eas in the draft whiCh I beli�v� �'equ�.x�e modification.
ACcoxdingly, I wou�d offer the following ob��rvations :
l . Generally, the bulk ot i.h� Purr.h�se Agreement rE�p.�esc�nts
c�n �ven-handed document whic:ti is f.a,ir_ to bath parties .
Dan '1'yson, the Mullers ' attorney, and I havQ b�Pn workintj
on this document for several months and we havr� reached
accord (subject, a� course, to yaur r�vi�w anri a�rpr.oval )
an most af �he candz�Sons . For example, r would call ��
yauz- attentian particular�y to paragraph 27 (paqe 11 ) , �'�
under which the Mullers agree �.a provide th� RPA
liquidated damages in the amount ot $100, a00 if Lhz
� Mul.lers fail to substiant�.al2y complete Lhe tt�eacer
pro ject within an agreed--upon ta.m�. This provision is �
impartant tv the RPA because it m2�k�5 �.t clear that, if ��
you s�ll ]�ttnd t�a the Mu3lers� a movie complex must be �
canstructed and the land cannat he used for specu 12�t_i �r� . #
FLUEGEL MOYNIHRN TEL No . 161243�9777 Jan 1� ,0� 1� � 13 No . 005 P .02
_ •
Ch�ir Ed Dunn
and Rosemount Port Authority M��Ers
Janua�y 14 , 1994
P�ge 2
l�urthexmore, in the �vent the Muller� fdil to develop the
property, it gives the RPR a substan�ia2 sum of money as
dam�g�a� fQ� tihe f$ct that the property etill lies fAllow.
2 . Paragxaph 5 (page i ) sugqest� a pnxchase price for the
praperty of $65,OOa. .A.�though th�� number has bee�.
discussed from time to time with the Muliers, Z mm �r�t
aware tihat the RPA has �ver mad� any binding comm,��ment
ta sell the pxoperty for �.his sum. mherefor�, you wi�l
need to determine a purchase price which is acceptable to
yr�u. Yn the course of making that d�terminat�.c�n, I t,,�fl�ld
a�.so r�commend that you keep �.n mind that whatever price
y�u �srrive at may have an imp$ct on the uriit pric� yoU
will xeceiye faz other tracts of land �.n the Business
Park.
3 • Paragxaph i7 . 1 (pages 7 and 8) discusses the city
improvement,s v,�hich wi11 be assessed to �he praperty to be
purchased by Lhe MuJ�lgrs . A� indicated with tne purchase
priee in the prec�ding parag:raph, no specific amount has
�ver been agreed upprl regarding the assessm�nt of
improvement, cost�s . In fact, you may �ecall that a
represen�ative of SEH recently made a presentation as to
alternative w�ys �,o assess improvements in the Iiusiness
Park. Yc�u will need to d�scuss �nd arrive at a
conclusion as to how you w�.sh t� proceed in th�.s realm,
keeping in m.ind again that your decision may impact
im�rov�n►�nt costs to other pxpperty in the Business Pax�k.
4 • Paragx,�ph 5(a � tp�g� 1 ) will have tp b� changed, since
Jahn Mi11�r has informed me that he has returned the
SZ9 , 100 ariginally submitted k�y the Mullers with the.i.r.
movie prQposal at the end of Juzy 1993 in response to
Y4�x ��'p. The change z wou�,d propose would require th�t
the MuZlers submit the full purchase price yau dccide
upon minus $1 . 00 at the ��me th� Yurehase AgreemPnt a.s
4x�cuted, with the remaining �1 . p0 �Q }�� paid to th� RYA
at closznq.
5 • Paragraph 1� {p�g� 6 ) limits the RPA's liability to the
Mullers by d�claring that the �tp;q has rto auth�rity to
caus� #;}l� �ity of Rosemount pr other Permitti.nr� ric�di.�S Lp
issu� authorizatians to the Mullers fox cQns�r.uc�.ion of
their projects . The Mu].1�rs , as you can s�e from the
. ].at�st draft. a�� ciesirous of elima,nating lanr�uage which
wauld extingu�.sh any claim that th+� Mullers may wish ta
make agair��t the Rpp, in the event �hat such
euLl�orizations and permit�s are not zsstaed . 1 wot�ld
strongly recomm�nd that you not� execute any purchase
�LUEGEL P90YNIHAN TEL PJo . 1b124389777 Jan 14 ,04 13 : 13 No .005 P . 03
� :
Chaa..� Ed punn
and Rasemaunt port Autih�rity ,Membexs
January 14 , 1994
Page 3
agx�ement which doea nat contain this protectian . If you
dec�d,e to sall praperty to �h� Mullere (pexticularly et
�n ���r►�mic�l pr.icej , I believe it is important that you
make $ur� �hat yQur aqreem8nt ext�.ngui�he$ eny cl�ime
pre�eting �hat se�le,
Please note that tf the Puzchase �greemet�t i8 nat
executed until after tihe Busxness Fark Text Arrreztdment and
rezoning issues are r�solved, the issue invo�,��� in the
sentence Y wish to preserv� �.ry the Purchase Ag�eemer�t mt�y
become moQt fram both the FtPA's and Mullexs �
pezspectii�res .
6 . As you w�.�1 note, �xhibft A ta the dra:Et p�azchase t
Aqreement is blank� This is so because the proper�y is �
not yet platted, and that activity needs to t,ake place
pzior ta �xecu�.ion o� the ,Ag��ement .
� • The praposed Exhibit C td th� Rgreement �,5, in fact, the
Declaration of Prot�ctive Covenants, a secpnd draft of
which is �urrently in your hands . It is imp�rtant that
we keep in m�,nd that these covenan�s be finala.�ed and
made a part of the Purchase Agx��em�nt before its
exPr..utiOn .
If you have any questions x�eqarcl�ng th� draft Purchase
Agreement, issues raised ' .in this merno or other r�lated mattexs ,
please contaet me at your convenience .
JMM:gmo _