HomeMy WebLinkAbout5.a. SALE OF PROPERTY: CANADA CIRCLE
EXECUTIVE SUMMARY
Port Authority Meeting Date: April 17, 2018
AGENDA ITEM: Approval of the Sale of Property to
Symnabdre Properties LLC
AGENDA SECTION:
Public Hearing
PREPARED BY: Kim Lindquist, Deputy Director AGENDA NO. 5.a.
ATTACHMENTS: Resolution, Public Hearing Notice, Plat
Map, Purchase Agreement APPROVED BY: LJM
RECOMMENDED ACTION: Motion to approve the Resolution approving the sale of
property to Symnabdre Properties LLC
And
Motion to Approve the Purchase Agreement between the City of Rosemount, the
Rosemount Port Authority and Symnabdre Properties LLC
ISSUE
Symnabdre Properties LLC is proposing to purchase 4.1 acres of the property located at Canada Circle, some of
which is owned by the Port Authority and some by the City. The Port Authority has approved the language of
the purchase agreement and received a presentation from Nate Bry who is the owner of Symnbdre properties
LLC, and interested in purchasing the property. As part of the process for sale of public property, the Port
Authority is required to hold a public hearing to determine whether the sale of the property is in the best
interests of the community and its residents and furthers the goals of the Port Authority. A public hearing
notice was published as required. A resolution of approval is provided for the Port Authority’s use after
opening of the public hearing and discussion about the impact on the community relating to the sale to
Symnbdre properties LLC and ultimate development of the property.
Staff believes the sale is consistent with the goals of the Port Authority to increase the City tax base, bring
additional jobs into the community, and provide for development consistent with the adopted ordinances and
regulations. Although the purchaser will need to apply for formal planning approvals, he has indicated the
proposed site uses, which are a combination of light industrial and retail, and provided a draft site plan and
building elevations. Should the project not receive final planning approval, which would dictate consistency
with city regulations, the sale would not go forward.
2
Here is the excerpt from the State Statutes regarding the sale of land by the Port Authority:
469.065 SALE OF PROPERTY.
Subdivision 1.Power. A port authority may sell and convey property owned by it within a port or industrial district if it determines that the sale and conveyance are in the best interests of the district and its people, and that the transaction furthers its general plan of port improvement, or industrial development, or both. This section is not limited by other law on powers of port authorities. A port authority shall hold a hearing on the sale. At the hearing a taxpayer may testify for or against the sale. At least ten, but not more than 20, days before the hearing the authority shall publish notice of the hearing on the proposed sale in a newspaper. The newspaper must be published and of general circulation in the port authority's county and port district. The notice must describe the property to be sold and state the time and place of the hearing. The notice must also state that the public may see the terms and conditions of the sale at the authority's office and that at the hearing the authority will meet to decide if the sale is advisable.
RECOMMENDATION
Staff recommends the Council authorize a Resolution approving sale of the property, and also a motion to
approve the purchase agreement.
ROSEMOUNT PORT AUTHORITY
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2018-
A RESOLUTION APPROVING SALE OF PROPERTY OWNED BY
THE CITY OF ROSEMOUNT PORT AUTHORITY
WHEREAS, the City of Rosemount Port Authority is the owner of real property generally
located West of South Robert Trail and North of Canada Circle, and legally described as
follows:
Parcels 2, 3, 4, 5A, 7A, and 11, as depicted in DAKOTA COUNTY RIGHT OF
WAY MAP NO. 258, being located in the North ½ of the Southwest ¼ of Section
32, Township 115, Range 19, Dakota County, Minnesota
Which will be platted as Lot 1, Block 1 Canada Circle (the “Property”)
WHEREAS, the Port Authority desires to sell a portion of the Property, to be known as Lot
1, Block 1 Canada Circle, to Symnabdre Properties LLC for purposes of developing a light
industrial and retail building; and
WHEREAS, Symnabdre Properties LLC will use the property for assembly and retail uses,
among other ordinance approved uses; and
WHEREAS, on March 20, 2018, the Port Authority approved the form of the purchase
agreement for the property, and
WHEREAS, on April 17, 2018, it was determined that the sale of the property furthers the
plans and goals of the Port Authority of redevelopment in the Downtown.
WHEREAS on April 17, 2018, the Port Authority approved the Purchase Agreement
between the City of Rosemount Port Authority and Symnabdre Properties LLC;
NOW THEREFORE, BE IT RESOLVED having met the requirements of Minn. Stat.
469.065, the Rosemount Port Authority hereby approves the conveyance to Symnabdre
Properties LLC of the real estate as legally described above.
ADOPTED by the Rosemount Port Authority this 17th day of April, 2018.
_________________________________
Chair
ATTEST:
___________________________________
Executive Director
PUBLIC NOTICE
ROSEMOUNT PORT AUTHORITY
NOTICE OF PUBLIC HEARING REGARDING THE
SALE AND CONVEYANCE OF PORT AUTHORITY
PROPERTY
TO WHOM IT MAY CONCERN:
NOTICE IS HEREBY GIVEN, the Rosemount Port Authority of the City of
Rosemount will hold a Public Hearing to consider the item listed below on Tuesday,
April 17, 2018, in the Council Chambers of the City Hall, 2875 145th Street West,
Rosemount, Minnesota, and beginning at 6:00 p.m. or as soon thereafter as possible.
The purpose of the public hearing is to receive public comment on the intent of the Port
Authority to sell public land to Symnabdre properties LLC for the purpose of developing
the site for a light industrial with retail building. The Port Authority will determine if sale
of the land to Symnabdre properties LLC furthers the goals of the Port Authority and is
in the best interest of the community. The Public Hearing pertains to property located
at Canada Circle owned by the Rosemount Port Authority and legally described as
follows:
Part of Parcels 2, 3, 4, 5A, 7A, and 11, DAKOTA COUNTY RIGHT OF WAY MAP
NO. 258, Dakota County, Minnesota,
(as shown on the attached map)
All persons interested may appear and be heard at the time and place set forth above.
The terms and conditions of the sale are available at the City Hall during normal business
hours or
by calling the Planning Department at 651-322-2051
Persons wishing to speak on this issue are invited to attend and be heard at this scheduled
public hearing. Formal written comments will also be accepted prior to the meeting
dates. Please forward all written comments and/or inquiries to the Planning Department
of the City of Rosemount or call 651-322-2051.
Dated this 5th day of April, 2018.
/s/ Logan Martin, Executive Director, Rosemount Port Authority
LOT 2
BLOCK 1
LOT 1
1
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NORTHWESTERN
BELL COMPANY
EASEMENT PER
DAKOTA COUNTY
RIGHT OF WAY MAP
NO. 258 AND PER
DOC. NO. 474502
S LINE OF THE NW 1/4 OF THE
SW 1/4 OF SEC. 32, T. 115, R. 19
75
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Graphic Scale (in feet)
60 120
DRAFT
SHEET 1 OF 1 SHEETS
CANADA CIRCLE
NOT TO SCALE
VICINITY MAP
SECTION 32, TOWNSHIP 115, RANGE 19,
DAKOTA COUNTY, MINNESOTA
NW 1/
4
NE 1/
4
SE 1/
4
SW
1/
4
BEING 10 FEET IN WIDTH, UNLESS OTHERWISE
INDICATED, AND ADJOINING LOT LINES,
AND 10 FEET IN WIDTH, UNLESS OTHERWISE
INDICATED, AND ADJOINING RIGHT-OF-WAY
LINES, AS SHOWN ON THE PLAT.
10
DRAINAGE AND UTILITY EASEMENTS
ARE SHOWN THUS:
1010 10DENOTES 1/2 INCH X 14 INCH IRON MONUMENT
SET AND MARKED BY LICENSE NO. 44606.
DENOTES FOUND IRON MONUMENT, AS SHOWN.
DENOTES ACCESS CONTROL.
THE SOUTH LINE OF THE NW 1/4 OF THE SW 1/4 OF
SEC. 32, T. 115 N, R. 19 W, IS ASSUMED TO HAVE A
BEARING OF 1
E.
SITE
160TH STSTATE TRUNK
H
IGHWAY
NO
.
3S ROBERT TRL3
PLANNING COMMISSION, Rosemount , Minnesota
Approved by the Planning Commission of the City of Rosemount, Minnesota, this ______ day of
____________________, 20___.
By: , Chair
CITY COUNCIL, Rosemount , Minnesota
This plat was approved by the City Council of Rosemount , Minnesota, this ______ day of ____________________,
20___, and hereby certifies compliance with all requirements as set forth in Minnesota Statutes, Section 505.03, Subd. 2.
By: , Mayor By: , Clerk
COUNTY SURVEYOR, Dakota County, Minnesota
I hereby certify that in accordance with Minnesota Statutes, Section 505.021, Subd. 11, this plat has been reviewed and
approved this _______ day of ____________________, 20___.
By:
Todd B. Tollefson, Dakota County Surveyor
DEPARTMENT OF PROPERTY TAXATION AND RECORDS
Pursuant to Minnesota Statutes, Section 505.021, Subd. 9, taxes payable in the year 20___ on the land hereinbefore
described have been paid. Also pursuant to Minnesota Statutes, Section 272.12, there are no delinquent taxes and
transfer entered this _______ day of ____________________, 20___.
By: , Director By: , Deputy
COUNTY RECORDER, Dakota County, Minnesota
I hereby certify that this plat of CANADA CIRCLE was filed in the office of the County Recorder for public record on this
_______ day of ____________________, 20___, at ______ o'clock ____ .M. and was duly filed in Book __________ of
Plats, Page __________, as Document No. ____________________.
By: By:
County Recorder Deputy
KNOW ALL PERSONS BY THESE PRESENTS: That City of Rosemount, a Minnesota municipal corporation , fee owner,
of the following described property situated in the County of Dakota, State of Minnesota, to wit:
Parcels 2, 3, 4, 5A, and 11 as depicted in Dakota County Road Right of Way Map No. 258, being located in the North
òRIWKH6RXWKZHVWóRI6HFWLRQ7RZQVKLS5DQJH'DNRWD&RXQW\0LQQHVRWD
AND: That Rosemount Port Authority, a body corporate and politic in the State of Minnesota , fee owner, of the following
described property situated in the County of Dakota, State of Minnesota, to wit:
3DUFHO$DVGHSLFWHGLQ'DNRWD&RXQW\5RDG5LJKWRI:D\0DS1REHLQJORFDWHGLQWKH1RUWKòRIWKH
6RXWKZHVWóRI6HFWLRQ7RZQVKLS5DQJH'DNRWD&RXQW\0LQQHVRWD
Have caused the same to be surveyed and platted as CANADA CIRCLE , and do hereby dedicate the easements as
shown on this plat for drainage and utility purposes only.
In witness whereof said City of Rosemount, a Minnesota municipal corporation , has caused these presents to be signed
by its proper officer this _______ day of ____________________, 20___.
SIGNED: City of Rosemount
By: , as
STATE OF MINNESOTA
COUNTY OF
The foregoing instrument was acknowledged before me this _______ day of ____________________, 20___, by
, of City of Rosemount, a Minnesota municipal corporation , on behalf of
the corporation.
Notary Public, County, Minnesota Notary Printed Name
My Commission Expires
In witness whereof said Rosemount Port Authority, a body corporate and politic in the State of Minnesota , has caused
these presents to be signed by its proper officer this _______ day of ____________________, 20___.
SIGNED: Rosemount Port Authority
By: , as
STATE OF MINNESOTA
COUNTY OF
The foregoing instrument was acknowledged before me this _______ day of ____________________, 20___, by
, of Rosemount Port Authority, a body corporate and politic in the State of
Minnesota , on behalf of the public body.
Notary Public, County, Minnesota Notary Printed Name
My Commission Expires
I Kyle L. Klasen do hereby certify that this plat was prepared by me or under my direct supervision; that I am a duly
Licensed Land Surveyor in the State of Minnesota; that this plat is a correct representation of the boundary survey; that
all mathematical data and labels are correctly designated on this plat; that all monuments depicted on this plat have been,
or will be correctly set within one year; that all water boundaries and wet lands, as defined in Minnesota Statutes, Section
505.01, Subd. 3, as of the date of this certificate are shown and labeled on this Plat; and all public ways are shown and
labeled on this plat.
Dated this day of , 20 .
Kyle L. Klasen, Licensed Land Surveyor,
Minnesota License No. 44606
STATE OF MINNESOTA
COUNTY OF
The foregoing instrument was acknowledged before me this _______ day of ____________________, 20___, by Kyle L.
Klasen, a Licensed Land Surveyor.
Notary Public, County, Minnesota Notary Printed Name
My Commission Expires
518494v5 BDL RS215-4
PURCHASE AGREEMENT
1. PARTIES. This Purchase Agreement (the “Purchase Agreement”) is made on this
_____ day of _____________, 2018 (the “Effective Date”), by and between the Rosemount Port
Authority, a body corporate and politic in the State of Minnesota, and the City of Rosemount, a
Minnesota municipal corporation (together, the “Seller”), and Symnabdre properties LLC, a
Minnesota limited liability company (the “Buyer”).
2. SUBJECT PROPERTY. The Seller is the owner of certain real estate located in
the City of Rosemount, Dakota County, Minnesota, legally described on the attached Exhibit A, and
shown on the attached Exhibit B, together with all rights, privileges, interests, licenses, claims,
easements, benefits, covenants, conditions and servitudes of any type or nature, whether now owned
or acquired, which are appurtenant to or otherwise benefit the property, and all of Seller’s rights,
title and interest in and access to all public ways adjoining the same (the “Property”). The Property
consists of vacant real estate, which Seller is in the process of platting.
3. OFFER/ACCEPTANCE. In consideration of the mutual agreements herein
contained, the Buyer offers and agrees to purchase and the Seller agrees to sell the Property.
4. CONTINGENCIES. The obligations of Buyer under this Purchase Agreement are
contingent upon each of the following (the “Contingencies”):
A. Representations and Warranties. The representations and warranties of Seller
contained in this Purchase Agreement must be true now and on the Closing
Date as if made on the Closing Date and Seller shall have delivered to Buyer
at Closing a certificate dated as of the Closing Date, signed by an authorized
representative of Seller, certifying that such representations and warranties
are true as of the Closing Date (the “Bring-down Certificate”)
B. Performance of Seller’s Obligations. The Seller shall have performed all of
the obligations required to be performed by Seller under this Purchase
Agreement, as and when required by this Purchase Agreement. Seller’s
obligations include the following:
(i) Seller shall allow Buyer and Buyer’s agents access to the Property
without charge and at all reasonable times, as provided in Section 9 herein.
(ii) Seller shall, without charge to Buyer, cooperate in Buyer’s attempts to
obtain all governmental approvals necessary in Buyer’s judgment in order to
allow Buyer to use the Property in the manner intended by Buyer. Buyer
acknowledges that the property is under two different zoning districts and
that rezoning of the property will need to occur to allow proposed uses. The
proposed uses include; retail, indoor recreational, assembly and light
manufacturing, which will require rezoning to PUD. The Buyer agrees to
obtain, at its sole discretion, cost and expense, a Planned Unit Development
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518494v5 BDL RS215-4
(PUD). Buyer acknowledges that by Seller entering into this Agreement,
Seller is not making any representations on behalf of the City of Rosemount
that any of the governmental approvals that will be needed by Buyer from
the City will necessarily be approved by the City.
(iii) Seller shall deliver the documents to Buyer pursuant to Section 6 herein.
C. Tests and Studies. The Buyer being satisfied with the results of, and matters
disclosed by, all existing files and reports, surveys, inspections, feasibility
tests, site plan/location within the development, site conditions,
environmental conditions soil tests, engineering inspections, hazardous
waste, environmental reviews, and any other tests, studies, reviews or
investigations that Buyer conducts (the nature and scope of which shall be
determined solely by Buyer) regarding the Property;
D. Title. Condition of title being satisfactory to the Buyer following the Buyer’s
examination of title as provided in Section 13 herein;
E. Governmental Approvals. The Buyer obtaining all public or private land use
approvals deemed necessary by the Buyer for the Buyer’s use of the Property
(the “Approvals”). The approvals include, but are not limited to, amendment
to Zoning Ordinance or PUD approval, design review, site and building plan
review and approvals, subdivision approvals (lot split, lot combination or
plat) building permits, drainage and detention permits, property disturbance
permits, sign approvals and permits, utility permits, and other governmental
and third-party approvals and environmental assessment worksheets and
statements and other permits and approvals. Buyer acknowledges that by
Seller entering into this Agreement, the Seller is not making any
representations on behalf of the City of Rosemount that any of the
governmental approvals that will be needed by Buyer from the City will
necessarily be approved by the City;
F. Financing. The Buyer obtaining financing that is deemed necessary by the
Buyer in order to finance the purchase of the Property and the development
and construction of the desired improvements;
G. No Condemnation. As of the Closing Date, there shall be no pending or
threatened condemnation or taking of any part of the Property or any means
of ingress or egress thereto or any parking therefor.
H. Further Assurances. Seller, at the request of Buyer, shall have furnished,
executed, and delivered such documents, instruments, certificates, notices, or
other further assurances as Buyer shall reasonably request as necessary to
effect complete consummation of this Purchase Agreement and the
transactions contemplated by this Purchase Agreement.
3
518494v5 BDL RS215-4
I. Platting. Seller is in the process of platting the Property, and this sale is
contingent upon the completion of the platting process, including but not
limited to obtaining final plat approval and recording the plat. If Seller is
unable to complete the platting process for any reason, this Agreement is
cancelled and Seller shall return to Buyer the Earnest Money and any interest
that has accrued thereto. Notwithstanding any other provision in this
Agreement, this contingency is not waivable.
J. Agreement to Re-Locate Access Road. The existence of an agreement for
the relocation of the access road is deemed necessary by the Buyer for the
Buyer’s use of the Property (the “Access Agreement”). Buyer acknowledges
that by Seller entering into this Agreement, the Seller is not making any
representations on behalf of the City of Rosemount that any of the Access
Agreement that will be needed by Buyer from the City will necessarily be
approved by the City
The “Contingency Date” shall be 120 days from the Effective Date of this Purchase Agreement
provided, however, that the Contingency Date relating to the Contingencies described in Sections
4(A), (G) and (H) shall expire on the Closing Date; provided further that the Contingencies
described in Section 4(F) shall expire 90 days after the Effective Date; provided further the
Contingencies described in Sections 4(C) and (D) shall expire 90 days after the Effective Date,
provided, however, that as long as Buyer diligently and continually pursues its Approvals, Buyer
shall have the right to extend the Contingency Date applicable to Approvals by one (1) thirty (30)
day period, by written notice to Seller on or before the Contingency Date applicable to the
Approvals. Thereupon, the Contingency Date applicable to the Approvals shall be extended and
Buyer shall continue to proceed as expeditiously as possible with efforts to obtain the Approvals. If
any of the foregoing contingencies have not been satisfied on or before the date specified above
with respect to the identified contingency, then this Purchase Agreement may be terminated, at
Buyer’s option, by written notice from Buyer to Seller delivered on or before the specified date.
If any condition set forth in this Section 4 has not been satisfied or waived by Buyer before the
Contingency Date applicable to such Contingency, then Buyer may, at Buyer’s option, terminate
this Purchase Agreement by written notice to Seller. Upon such termination, this Purchase
Agreement shall thereupon be void and the Earnest Money shall be refunded, and neither party will
have any further rights or obligations to the other regarding this Purchase Agreement or the
Property, except Buyer’s obligations contained in Section 9 hereof. If Buyer does not elect to
terminate this Purchase Agreement, the parties shall proceed with this transaction in accordance
with the terms and conditions of this Purchase Agreement. The contingencies are specifically stated
and agree to be for the sole and exclusive benefit of the Buyer, and the Buyer shall have the right to
unilaterally waive any contingency by written notice to the Seller.
5. EXCLUDED PERSONAL PROPERTY. There is no personal property, trade
fixtures or equipment, including but not limited to, any above ground or underground storage tanks,
included in the sale of the Property.
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518494v5 BDL RS215-4
6. RECORDS AND DOCUMENTS TO BE DELIVERED. Prior to the Effective
Date, the Seller shall deliver the following documents to the Buyer, at the Seller’s cost: None.
Within ten (10) days of the Effective Date, Seller shall deliver to Buyer, at the Seller’s cost: (i) any
appraisals, permits, plats, surveys, title reports, prior title commitments or policies, authorizations,
soil test borings, engineering studies, environmental studies or reports or other reports relating to the
physical condition of the Property in Seller’s possession; and (ii) any other notices, records or
documents pertaining to the Property.
7. PURCHASE PRICE AND TERMS:
A. CONSIDERATION: The Buyer shall pay the Seller $1.85 per square foot,
with the Property totaling 180,674 square feet, for a total of Three Hundred
Thirty-Four Thousand Two Hundred Forty-Six and 90/100 ($334,246.90)
Dollars for the Property (the “Purchase Price”).
B. TERMS:
1. Earnest Money. $15,000.00 as earnest money (“Earnest Money”),
which Earnest Money shall be held by the Seller and applied to the
Purchase Price and shall be refundable to the Buyer if the sale
contemplated hereunder fails to close due to Seller default. The
Seller acknowledges delivery and sufficiency of Earnest Money. The
Seller shall deposit the Earnest Money in an non-interest bearing
account insured by the FDIC. All interest earned thereon shall be
added to and become part of the Earnest Money.
2. Balance of Payment. The remaining estimated balance of Three
Hundred Nineteen Thousand Two Hundred Forty-Six and 90/100
($319,264.90) Dollars shall be paid to the Seller by the Buyer at
Closing.
8. CLOSING. The closing of the sale of the Property (the “Closing”) shall take place
on the date that is no later than 10 days after the Buyer has satisfied or waived all contingencies
listed in Section 4 above, or as otherwise mutually agreed upon by the parties (the “Closing Date”).
The Closing shall take place at Rosemount City Hall, 2875 145th Street West, Rosemount,
Minnesota or such other location as mutually agreed upon by the parties. Seller shall deliver
possession of the Property to Buyer on the Closing Date.
9. SURVEYING, ENVIRONMENTAL INSPECTION AND SOIL TESTS. The
Buyer and its agents shall have the right to enter upon the Property after the date of this Purchase
Agreement for the purpose of surveying and inspecting the Property and conducting such
environmental examination and soil tests as the Buyer deems necessary. The Buyer agrees to
indemnify the Seller against any liens, claims, losses or damage directly attributable by the Buyer’s
exercise of its right to enter and work upon the Property. The Buyer agrees to provide the Seller
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518494v5 BDL RS215-4
with a copy of any report or survey prepared as a result of such surveying, inspection, examination,
or testing, upon request by the Seller.
10. DOCUMENTS TO BE DELIVERED AT CLOSING. The Seller agrees to
deliver the following documents to the Buyer at Closing:
A. A duly recordable quitclaim deed conveying fee simple title to the Property
to the Buyer, free and clear of any mortgages, liens or encumbrances other
than matters created by or acceptable to the Buyer.
B. An affidavit from the Seller indicating that on the Closing Date there has
been no skill, labor, or material furnished to the Property for which payment
has not been made or for which mechanics’ liens could be filed; and that
there are not other unrecorded interests in the Property, together with
whatever standard owner’s affidavit and/or indemnity, which may be
required by Title Company, sufficient to remove any exception in the
Buyer’s policy of title insurance for mechanics’ and materialmens’ liens and
rights of parties in possession;
C. Affidavit of the Seller confirming that the Seller is not a foreign person
within the meaning of Section 1445 of the Internal Revenue Code;
D. A completed Minnesota Well Disclosure Certificate or a statement that
Seller is not aware of any wells on the Property; and
E. A Bring-down Certificate from Seller.
F. Any notices, certificates, and affidavits regarding any private sewage
systems, underground storage tanks, and environmental conditions as may be
required by Minnesota statutes, rules or ordinances.
G. All other documents reasonably determined by Buyer or Title Company to
be necessary to transfer the Property to Buyer free and clear of all
encumbrances except those which are permitted by Buyer pursuant to
Section 13 herein.
11. CLOSING COSTS AND RELATED ITEMS. The Seller shall be responsible for
the following closing costs and related items: (1) all recording fees and charges relating to the filing
of any instrument required to make title marketable; (2) any fees incurred for obtaining the
Commitment (including any related search fees); (3) any state deed tax, conservation fee or other
federal, state or local documentary or revenue stamps or transfer tax with respect to the quit claim
deed to be delivered by the Seller; (4) its own legal and accounting fees associated with this
transaction; and (5) all costs and expenses related to the performance of Seller’s obligations under
Section 4B of the Purchase Agreement. The Buyer shall be responsible for the following closing
costs and related items: (1) the cost of any Survey of the Property required by the Buyer; (2) all
premiums required for issuance of any Title Policy; (3) the fees of any soil tests, environmental
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518494v5 BDL RS215-4
assessments, inspection reports, appraisals, or other tests or reports ordered by Buyer; (4) recording
fees and charges related to the filing of the deed; (5) all costs associated with any land use approvals
that are requested or required by the Buyer; and (6) its own legal and accounting fees associated
with this transaction. All closing fees charged by the Title Company and any escrow fees charged
by any escrow agent engaged by the parties in connection with this Purchase Agreement shall be
split equally between the Buyer and Seller.
12. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS.
A. The Seller shall be responsible for all real estate taxes, including any
deferred real estate taxes, penalties or interest, for the years prior to the year
in which Closing occurs. Real estate taxes that are due and payable in the
year of Closing shall be prorated between the Buyer and the Seller.
B. The Seller shall pay all special assessments levied and constituting a lien
against the Property as of the Closing Date, including, without limitation,
special assessments certified for payment with the real estate taxes, any
installments of special assessments, including interest payable with general
real estate taxes in the year of Closing, and all deferred assessments. The
Buyer shall assume payment of any special assessments that are pending, but
not levied against the Property as of the Closing Date.
13. TITLE EXAMINATION. The Buyer’s examination of title to the Property shall
be conducted as follows:
A. SELLER’S TITLE EVIDENCE. Seller shall, within thirty (30) days after
the date of this Purchase Agreement, furnish a title insurance commitment
(“Commitment”) from a title company (“Title Company”) for an ALTA
Owners Policy of Title Insurance (the “Title Policy”). The Commitment
shall insure title to the Property in the amount of the Purchase Price. The
Commitment shall be accompanied by true and correct copies of all
instruments noted as exceptions therein.
B. SURVEY. Buyer may, at its sole cost and expense, within a reasonable
period of time after receipt of the Commitment, cause an ALTA Survey
(“Survey”) to be prepared by a Minnesota land surveyor. (the Commitment
and the Survey are sometimes hereinafter referred to as the “Title Evidence”)
C. BUYER’S OBJECTIONS. The Buyer shall make written objections (the
“Objections”) to the form or contents of the Title Evidence, no later than 30
days after receiving the last of the Title Evidence. The Buyer’s failure to
make Objections within such time period shall constitute waiver of the
Objections. The Seller shall have 30 days after receipt of the Objections to
cure the Objections or to supply reasonably acceptable written evidence
reasonably acceptable to the Title Company and Buyer that the Objections
will be cured at Closing, during which period the Closing will be postponed,
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518494v5 BDL RS215-4
as necessary. The Seller shall use all reasonable efforts to correct any
Objections. If the Objections are not cured within such 30 day period, or if
Seller does not supply written evidence to the Title Company and Buyer
within such 30 day period that the Objections will be cured at Closing, the
Buyer will have the option to do either of the following:
1. Terminate this Purchase Agreement, by providing written notice of
said termination to Seller if termination is due to the Seller’s failure
to cure title objections or any other default of the Seller, the Seller
shall repay the Earnest Money to the Buyer; or
2. Waive the Objections at the Buyer’s expense and proceed to close.
14. POSSESSION/CONDITION OF THE PROPERTY. The Seller shall deliver
possession of the Property to the Buyer at closing in the condition as the Property existed on the
date of execution of this Purchase Agreement.
15. REPRESENTATIONS AND WARRANTIES BY THE SELLER. The Seller
hereby represents and warrants to the Buyer as of the Closing Date that:
A. Authority. The Seller is a body corporate and politic, duly created under and
subject to the laws of Minnesota; the Seller has the requisite power and
authority to enter into and perform this Purchase Agreement and those
closing documents signed by it; such documents have been or will be duly
authorized by all necessary action on the part of the Seller and have been or
will be duly executed and delivered; such execution, delivery and
performance by the Seller of such documents does not conflict with or result
in a violation of any judgment, order, or decree of any court or arbiter to
which the Seller is a party; such documents are valid and binding obligations
of the Seller, and are enforceable in accordance with their terms, subject to
bankruptcy, reorganization, insolvency, moratorium and other laws affecting
the rights and remedies of creditors generally and principles of equity.
B. Rights of Others to Purchase the Property. The Seller has not entered into
any other contracts for the sale of the Property, nor are there any rights of
first refusal or options to purchase the Property or any other rights of others
that might prevent the sale of the Property contemplated by this Agreement.
C. Legal Proceedings. There is no action, litigation, investigation,
condemnation or proceeding of any kind pending or, to the best of the
Seller’s knowledge without investigation, threatened against the Seller or
any portion of the Property, and Seller has no actual knowledge that any
such action is contemplated.
D. Wells. There are not any wells located on the Property.
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E. Individual Sewage Treatment Systems. There are not any individual sewage
treatment systems located on the Property.
F. Title. The Seller has good, indefeasible and marketable fee simple title to
the Property.
G. Leases. There are no third parties in possession of the Property, or any part
thereof; and there are no leases, oral or written, affecting the Property or any
part thereof.
H. Defects. The Seller is not aware of any latent or patent defects in the
Property, such as wetlands, sinkholes, weak soils, unrecorded easements and
restrictions.
I. Methamphetamine Production. To the best of the Seller’s knowledge,
methamphetamine production has not occurred on the Property.
J. Foreign Status. The Seller is not a “foreign person” as such term is defined
in the Internal Revenue Code.
K. Legal Compliance and Use of the Property. The Seller has complied with all
applicable laws, ordinances, regulations, statutes, rules and restrictions
pertaining to and affecting the Property and the Seller shall continue to
comply with such laws, ordinances, regulations, statutes, rules and
restrictions. To the best knowledge of Seller, the Property does not violate
any federal, state, local or other governmental building, zoning, health,
safety, platting, subdivision or other law or regulation, or any applicable
private restriction.
L. Seller’s Defaults. To the best knowledge of Seller, Seller is not in default
concerning any of its obligations or liabilities regarding the Property.
M. Eminent Domain. To the best knowledge of Seller, there is no existing or
proposed or threatened eminent domain or similar proceeding, or private
purchase in lieu of such a proceeding which would affect the Property in any
material way.
N. Taxes and Assessments. To the best knowledge of Seller, all real property
taxes, and all Seller’s personal property taxes relating to the Property, if any,
excepting those for the current tax year which are not yet overdue (i.e.,
which are still payable without interest or penalty) have been paid in full. To
Seller’s actual knowledge, there is no existing or proposed assessment that
has or may become a lien on the Property.
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O. Public Utilities. Public Utilities including water and sanitary sewer are
currently available on or near the Property for Buyer’s use.
P. Storage Tanks. Seller has no knowledge of any underground storage tanks on
the Property. To the extent storage tanks exist on or under the Real Property,
such storage tanks have been duly registered with all appropriate regulatory
and governmental bodies, and otherwise are in compliance with applicable
federal, state, and local statutes, regulations, ordinances and other regulatory
requirements.
Q. Environmental Laws. Seller has no actual knowledge that it has stored,
released, disposed of, or permitted any other party to store, release or
dispose of, and to Seller's actual knowledge there has not been any storage,
release or disposal of, any Hazardous Material in, on, about or from the
Property, and Seller has no actual knowledge of the existence in, on or
about the Property of any Hazardous Material. The term “Hazardous
Materials” means asbestos, urea formaldehyde, polychlorinated biphenyls,
nuclear fuel or materials; radioactive materials, explosives, known
carcinogens, petroleum products and by-products, and any pollutant,
contaminant, chemical, material or substance defined as hazardous or as a
pollutant or a contaminant in, or the release or disposal of which is
regulated by, any federal, state, county, municipal, local or other statute,
ordinance or regulation that relates to or deals with human health or the
environment, including, without limitation, all regulations promulgated by a
regulatory body pursuant to any such statute, ordinance, or regulation,
including, but not limited to, the Comprehensive Environmental Response
and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601, as amended.
R Reports. Seller has delivered to Buyer copies of all environmental reports
related to the Property in its possession or reasonably obtainable by Seller.
The Seller’s representations and warranties set forth in this Section shall be continuing
and are deemed to be material to the Buyer’s execution of this Purchase Agreement and
Buyer’s performance of its obligations hereunder. All such representations and
warranties shall be true and correct on and as of the Closing Date with the same force and
effect as if made at that time; and all of such representations and warranties shall survive
the Closing and any cancellation or termination of this Purchase Agreement, and shall not
be affected by any investigation, verification or approval by any party hereto or by
anyone on behalf of any party hereto. The Seller agrees to defend, indemnify and hold the
Buyer harmless for, from, and against any loss, costs, damages, expenses, obligations and
attorneys’ fees incurred should an assertion, claim, demand, action or cause of action be
instituted, made or taken, which is contrary to or inconsistent with the representations or
warranties contained herein.
16. “AS IS, WHERE IS.” The Buyer acknowledges that it has inspected or has had the
opportunity to inspect the Property and agrees to accept the Property “AS IS” with no right of set off
or reduction in the Purchase Price. Such sale shall be without representation of warranties, express
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or implied, either oral or written (except for the representations and warranties in Section 15 herein),
made by the Seller or any official, employee or agent of the Seller with respect to the physical
condition of the Property, including but not limited to, the existence or absence of petroleum,
hazardous substances, pollutants or contaminants in, on, or under, or affecting the Property or with
respect to the compliance of the Property or its operation with any laws, ordinances, or regulations
of any government or other body, except as stated above. The Buyer acknowledges and agrees that
the Seller has not made and does not make any representations, warranties, or covenants of any kind
or character whatsoever, whether expressed or implied, with respect to warranty of income
potential, operating expenses, uses, habitability, tenant ability, or suitability for any purpose,
merchantability, or fitness of the Property for a particular purpose, all of which warranties the Seller
hereby expressly disclaims, except as provided in Section 15 above.
17. CONDEMNATION. If, prior to the Closing, eminent domain proceedings are
commenced against all or any part of the Property, the Seller shall immediately give notice to the
Buyer of such fact and at the Buyer’s option (to be exercised within 15 days after the Seller’s
notice), this Agreement shall terminate, in which event neither party will have further obligations
under this Agreement. The Earnest Money shall be returned. If the Buyer fails to give such
notice, then there shall be no reduction in the Purchase Price, and the Seller shall assign to the
Buyer at the Closing all of the Seller’s right, title and interest in and to any award made or to be
made in the condemnation proceedings. Prior to the Closing, the Seller shall not designate
counsel, appear in, or otherwise act with respect to the condemnation proceedings without the
Buyer’s prior written consent.
18. BROKER COMMISSIONS. The Buyer represents that it has not used any real
estate brokerage services with respect to its purchase of the Property. The Seller and Buyer
represent and warrant to each other that they have not dealt with brokers in connection with the
transaction contemplated by this Purchase Agreement. Each party agrees to indemnify, defend and
hold each other harmless from the claims of any broker, or real estate agent.
19. REMEDIES. If the Buyer or Seller defaults in any of the agreements herein and
fails to cure said default within thirty (30) days of receipt of written notice of said default, the non-
defaulting party may (i) terminate this Purchase Agreement by providing written notice to the
defaulting party, (ii) seek actual damages for breach of this Purchase Agreement or (iii) seek
specific performance of this Purchase Agreement; provided that any action for specific enforcement
must be brought within six months after the date of the alleged breach.
20. TIME IS OF THE ESSENCE. Time is of the essence in this Agreement. If the
time for performance of any obligation hereunder shall fall on a Saturday, Sunday or holiday such
that the transaction contemplated hereby cannot be performed, the time for performance shall be
extended to the next such succeeding day where performance is possible.
21. ASSIGNMENT. The Buyer may assign its rights under this Agreement with the
written approval of the Seller, which shall not be unreasonably withheld.
22. AMENDMENT AND MODIFICATION. No amendment, modification or
waiver of any condition, provision or term of this Purchase Agreement shall be valid or have any
effect unless made in writing, is signed by the party to be bound and specifies with particularity the
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extent and nature of such amendment, modification or waiver. Any waiver by either party of any
default by the other party shall not affect or impair any right arising from any previous or
subsequent default.
23. BINDING EFFECT. This Purchase Agreement binds and benefits the parties and
their successors and assigns.
24. NOTICES. Any notice, demand, request or other communication which may or
shall be given or served by Seller on Buyer or by Buyer on Seller, shall be deemed has been given
or served on the date the same is hand delivered or the date of receipt or the date of delivery if
deposited in the United States mail, registered or certified, postage prepaid, and addressed as
follows:
If to the Seller: Rosemount Port Authority
Attn: Executive Director
2875 145th Street West
Rosemount, MN 55068-4997
AND
City of Rosemount
Attn: Community Development Director
2875 145th Street West
Rosemount, MN 55068-4997
With a copy to: Mary Tietjen, Esq.
Kennedy & Graven, Chartered
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
If to the Buyer: SYMNABDRE PROPERTIES
Attn: Nathan A. Bry
13562 Birdsong Path
Rosemount, MN 55068
With a copy to: Rachel Estrella, Esq.
Dakota Law, P.L.L.C.
16233 Kenyon Ave., Suite 200
Lakeville, MN 55044
or such other address as either party may give to another party in accordance with this Section.
25. NO PARTNERSHIP OR JOINT VENTURE. Nothing in this Purchase
Agreement shall be construed or interpreted as creating a partnership or joint venture between Seller
and Buyer relative to the Property.
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26. CUMULATIVE RIGHTS. Except as may otherwise be provided herein, no right
or remedy herein conferred on or reserved by either party is intended to be exclusive of any other
right or remedy provided by law, but such rights and remedies shall be cumulative in and in addition
to every other right or remedy given herein or elsewhere or existing at law, equity or by statute.
27. ENTIRE AGREEMENT. This Purchase Agreement constitutes the entire
agreement between the parties and no other agreement prior to this Purchase Agreement or
contemporaneous herewith shall be effective except as expressly set forth or incorporated herein.
28. CONTROLLING LAW. This Agreement has been made under the substantive
laws of the State of Minnesota, and such laws shall control its interpretation.
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IN WITNESS WHEREOF, the parties have executed this Purchase Agreement as of the
date written above.
SELLER:
ROSEMOUNT PORT AUTHORITY
By: ____________________________________
Its: Chair
By: ____________________________________
Its: Executive Director
CITY OF ROSEMOUNT
By:____________________________________
William Droste
Its: Mayor
By: ___________________________________
Erin Fasbender
Its: City Clerk
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BUYER
Symnabdre properties LLC
_____________________________
By: Nathan A. Bry
Its: President
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Exhibit A
Legal Description of Property
Lot 1, Block 1, CANADA CIRCLE, Dakota County, Minnesota.
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518494v5 BDL RS215-4
Exhibit B
Depiction of Property
(Lot 1, Block 1 only)