5.7. SR 04-04-2011REQUEST FOR ACTION
TO ITEM NUMBER
Ci Council 5.7.
AGENDA SECTION MEETING DATE PREPARED BY
Administration A ri14, 2011 Lori ohnson, Ci Administrator
ITEM DESCRIPTION REVIEWED By
Commercial Purchase Agreement Between the Houlton
Investment Company and the City of Elk River REVIEWED BY
ACTION REQUESTED
Approve a Commercial Purchase Agreement (Agreement) between the Houlton Investment Company
and the City of Elk River for the purchase of parcels 75-404-0160, 75-405-0540, 75-405-0545, and 75-
405-0550.
BACKGROUND/DISCUSSION
Currently, the Houlton Investment Company owns four parcels directly behind the retail buildings on the
south side of Main Street between Jackson and King Avenues and adjacent to Rivers Edge Commons
Park. These parcels are used as a parking area consisting of an upper and a lower lot. Although the lots
function much like public parking, it is actually private parking owned and controlled by the Houlton
Investment Company. The Houlton Investment Company no longer wants to own the lots thus the lots
have been marketed for sale. If the lots are sold to a private party, there is no guarantee that public
parking will remain in these two lots. In an effort to preserve and control the 68 parking stalls on the
property and assist the businesses in downtown by ensuring this parking remains available to the public,
the city has negotiated with Houlton Investment Company to purchase the parking lots.
Maintaining public parking in these lots is important for the vitality of the businesses that abut the
property and for the entire downtown area. Additionally, parts of the parking lots are used for the
concerts held in the park. The lower lot in particular will provide additional handicapped access to the
park. Owning the lower lot is a welcome addition to the park as it allows additional space to
accommodate events as well as providing convenient parking for park visitors.
The attached Agreement lays out the terms in which the city would agree to purchase this property.
Those conditions include obtaining easements from all adjacent property owners in order to provide
access to the parking drive lanes of, entrances to, and exits of the parking lots. Additionally, Houlton
Investment Company's Declaration of use for the alley that borders the west side of Rivers Edge
Commons Park will be terminated.
The purchase price stated in the Agreement is $225,000. 'Therefore, the cost of purchasing the 68 parking
stalls is approximately $3,300 each. By comparison, the cost of constructing additional parking ramp or
deck spaces is estimated to be between $10,000 to $15,000 per stall. Earnest money of $1,000 will be due
upon signing the Agreement with a proposed closing date on or before April 29 at which time the
remaining $224,000 is due. The closing will not take place until all easements are secured.
N:\Depaztments\Administrative Services\Administration\Lori\2011
FINANCIAL IMPACT
The purchase price of $225,000 will be funded with the annual peaking plant payment. There will be on-
going costs for snow removal that will be included in the annual budget. Additionally, at some time in the
future, the lots will need to be sealed or overlaid. City Engineer Justin Femrite has inspected the lots and
indicated that no immediate repairs are needed and that the lots are in good condition.
ATTACHMENTS
^ Copy of the Commercial Purchase Agreement
Action Motion by Second by Vote
Follow Up
N:\Departments\Administrative Services\Administration\Lori\2011
COMMERCIAL PURCHASE AGREEMENT
THE HOULTON INVESTMENT COMPANY, a Minnesota Corporation ("Seller") and
the CITY OF ELK RIVER, a mnesota Municipal Corporation, ("Buyer"), make this
Agreement effective as of the ~~day of /~ , ~r , 2011 ("Effective Date").
In consideration of the parties' mutual covenants and representations in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of which the parties
acknowledge, the parties agree as follows:
1. Sate of Real Property. Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, real property located in the City of Elk River, Sherburne County,
Minnesota, legally described on the attached Exhibit A, together with all easements,
improvements, and rights benefiting or appurtenant to the property and also together with the
easements referenced in 3e herein (collectively the "Property"). The exact boundary lines and
legal description of the Property will be determined or confirmed by a survey of the Property, as
detailed in paragraph 6(b) herein.
2. Purchase Price and Manner of Payment. The total purchase price ("Purchase
Price") Buyer will pay to Seller for the Property will be Two Hundred Twenty-five Thousand
and 00/100 Dollars ($225,000.00), payable as follows.
a. Earnest Money. $1,000 as earnest money, which earnest money will be held in
escrow with the Buyer's title company, Sherburne County Abstract and Title
Company, 351 Main Street, Elk River, MN 55330 ("Title Company"), at the time
of execution of this Agreement ("Earnest Money").
b. Closing Payment. The remaining balance of $224,000.00 shall be paid in cash,
by certified check, or wire transfer on or before the Closing Date ("Closing
Payment").
3. Contingencies. Buyer's obligations under this Agreement are expressly
contingent upon satisfaction or waiver of each of the following conditions:
a. Title. Title will have been found acceptable to Buyer, or been made acceptable,
in accordance with this Agreement's requirements and terms.
b. Performance of Seller's Obligations. Seller will have performed all of its
obligations required under this Agreement, as and when required by this
Agreement.
c. Inspection. Seller, without charge to Buyer, shall allow Buyer and Buyer's
agents access to the Property at all reasonable times for the purpose of Buyer's
investigation, testing and surveying of the Property. Buyer shall pay all costs and
expenses of such Inspection and shall hold Seller and the Property harmless from
all costs and liabilities, including but not limited to reasonable attorney's fees,
GP:2945285 v4 1
relating to Buyer's activities pursuant to this paragraph. Buyer shall repair and
restore any damage to the Property caused by or occurring during Buyer's
Inspection and return the Property to substantially the same condition as existed
prior to such Inspection. Buyer will have determined, in its sole discretion, that it
is satisfied with the results of such Inspection.
d. Re~~iew of Documents. Within fifteen (15) days after execution of this
Agreement, Seller shall deliver to Buyer true, correct, and complete copies of all
written documents, reports, tests, maps, surveys, plats, tax statements, contracts,
agreements, restrictive covenants and all other information related to the Property
(collectively the "Documents"), if any, including, but not limited to the results of
any and all studies, reports, monitoring, tests, analysis, correspondence with
governmental agencies, or other documents in its possession or initiated by Seiler
or otherwise known to Seller and pertaining to the existence of hazardous
materials, compliance with wetland or environmental laws, soil conditions, or to
any other environmental concern relating to the Property. Buyer will have
determined, in its sole discretion, it is satisfied with the results of such review of
the Documents.
e. Roads and Easements. Buyer shall have determined, in its sole discretion, that
the Property is or will be, within a time period acceptable to Buyer, serviced by
all necessary and adequately sized roads and/or easements. Easements for access
aisles for vehicular and pedestrian ingress and egress shall be secured by Seller to
Buyer from First I~Tational Bank of Elk River, owner of The Waterfall Tanning &
Spa, owner of the Sunshine Depot and from Seller over property to the North and
West of the Property being purchased herein as depicted on the attached Exhibit
B.
Seller shall also amend the Declaration executed by Seller dated April 17, 2010,
to remove Article II (sic) No Public Dedication.
f. Representations and Warranties. All of Seller's representations and warranties
contained in this Agreement are true and correct as of the Closing Date.
g. Release of Reservation of Easement. Release by Seller of Reservation of
Easement contained in Declaration Book 65, No. 65505, which reserved an
easement to Seller over property owned by Buyer adjacent to the Property being
purchased herein.
The Contingency Date shall be the Closing Date. If any contingency has not been satisfied or
waived, in Buyer's sole discretion, on or before the Contingency Date (except for the title
contingency in Section 3(a) which will be satisfied according to this Agreement's specific
terms), then Buyer may terminate this Agreement by written notice to the Seller given at any
time on or before the Contingency Date. Upon termination under this Section 3, all Earnest
Money and accrued interest shall be promptly refunded to Buyer, this Agreement will terminate,
the parties will sign a cancellation of this Agreement, and neither party will have any further
GP:2945285 v4 2
rights or obligations regarding this Agreement or the Property. Buyer reserves the right to waive
any of Buyer's contingencies contained in this Agreement.
4. Closing. The Closing will be held on or before April 29, 2011 (the "Closing
Date"). Sherburne County Abstract and Title Company, 351 Main Street, Elk River, MN 55330
will be the title company ("Title Company") and the closing will take place at the offices of the
Title Company, or another mutually agreed upon location, at a time the parties mutually agree
upon. Seller agrees to deliver possession of the Property to Buyer not later than the Closing Date,
and Seller shall remove all debris, and personal property from the Property before the Closing
Date.
a. Seller's Closing Documents. On the Closing Date, Seller will execute and
deliver to Buyer the following documents ("Seller's Closing Documents"):
(I) Warranty Deed. A Warranty Deed in recordable form executed by Seller
conveying marketable fee title to the Property to Buyer free and clear of
all encumbrances, except the Permitted Encumbrances (as defined in this
Agreement) and such matters, if any, to which Buyer, at its option, may
consent to in writing.
(2) Seller's Affidavit. An Affidavit of Title by Seller indicating that on the
Closing Date there are no outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving Seller or the Property; that there has
been no skill, labor or material furnished to the Property for which
payment has nat been made or for which mechanics' liens could be filed;
and that there are no other unrecorded interests in the Property, together
with whatever standard owner's affidavit and/or, indemnity (ALTA Form)
which maybe reasonably required by the Title Company to issue the Title
Policy.
(3) Abstract. The updated and current Abstract of Title regarding the
Property.
(4) IRS Reporting Form. Any required Federal Income Tax reporting forms.
(5) Well, Storage Tank & Septic Disclosures. Any well certificates, septic
system disclosures, or storage tank affidavits required by law or the Title
Company.
(6) Title Policy. The Title Policy or a suitably marked-up commitment for
title insurance initiated by the Title Company in the form required by this
Agreement at Buyer's expense.
(7) Easements. The Easements as required at paragraph 3e herein.
(8) Release of Reservation of Easement. The Release of Reservation of
Easement as required at paragraph 3g herein.
GP:2945285 v4
(9) Amendment of Declaration. The Amendment of Declaration as required
in paragraph 3e herein.
(10) Other Documents. All other documents required by the Title Company
or Buyer which are reasonably necessary to transfer the Property to Buyer
under this Agreement and record the Deed and other closing documents.
b. Buyer's Closing Documents. On the Closing Date, Buyer will execute and
deliver to Seller the following ("Buyer's Closing Documents"):
(1) Closing Payment. The Closing Payment.
(2) Title Documents. Such affidavits of Buyer, Certificates of Value or other
documents as maybe reasonably required by the Title Company to record
the Seller's Closing Documents and issue the Title Policy.
5. Prorations. Seller and Buyer agree to the following prorations and allocation of
costs regarding this Agreement:
a. Title Insurance and Closing Fee. Seller will pay all costs of the Title Evidence,
and any fees charged by the Title Company for any escrow required regarding
Buyer's Objections. Buyer will pay all premiums required for the issuance of a
Owner's Title Policy. Seller and Buyer will each pay one-half (1/z) of any
reasonable and customary closing fee or charge imposed by the Title Company.
b. Deed Tax. Seller will pay all state deed tax regarding the Warranty Deed or any
deed to be delivered by Seller under this Agreement.
c. Real Estate Taxes and Special Assessments. Except as provided herein, Seller
shall pay on the Closing Date all special assessments levied, and constituting a
lien against the Property as of the Closing Date. Seller and Buyer will prorate
general real estate taxes in the year of closing as of the Closing Date based upon a
calendar year. Seller will pay all deferred real estate taxes or special assessments
which may become payable as a result of the sale contemplated by this
Agreement. Buyer will pay or assume any special assessments that may become
levied or pending after the Closing Date. Buyer will pay all real estate taxes on
the Property due and payable after the year of Closing.
d. Recordang Costs. Seller will pay the cost of recording all documents necessary
to place record title in the condition warranted and requested of Seller in this
Agreement. Buyer will pay the cost of recording all other documents.
e. Attorneys' Fees. Each of the parties will pay its own attorneys' fees, except that
a party defaulting under this Agreement or any closing document will pay the
reasonable attorneys' fees and court costs incurred by the non-defaulting parry to
enforce its rights regarding such default.
GP:2945285 v4 4
6. Title Examination. The title examination for the Property will be conducted as
follows:
a. Seller's Title Evidence. Seller will, within fifteen (15) days after this
Agreement's Effective Date and at Seller's cost and expense, provide an Abstract
of Title for the Property, certified to a current date to include all appropriate
bankruptcy and judgment searches ("Abstract"), and make application with the
Title Company for a title commitment ("Title Commitment") committing to issue
an owner's policy of title insurance on a current ALTA form ("Title Policy")
issued by the Title Company, in the full amount of the Purchase Price, committing
to insure that Buyer will have good and marketable title to the Property and its
appurtenances on the Closing Date free and clear of all encumbrances, except the
Permitted Encumbrances, deleting standard exceptions, including affirmative
endorsements as may be identified by Buyer (including without limitation,
contiguity and zoning endorsements) covering title to the Property and including
relevant tax lien, special assessment, judgment and bankruptcy searches. Seller
will cause the Title Company to deliver the Title Commitment to Seller and Buyer
as soon as possible, and in no event later than 30 days after this Agreement's
Effective Date. Buyer shall be responsible to pay to the Title Company the cost
of any endorsements and for the Owners title insurance policy. Seller shall
provide to Buyer at Seller's expense, Owners and Encumbrance Reports on the
properties over which easements will be secured pursuant to paragraph 3(e).
b. Survey. Within 30 days after this Agreement's Effective Date, Buyer, at Buyer's
expense, shall secure a cui~-ent survey of the Properly and improvements thereon
prepared and certified by a Minnesota licensed land surveyor, as designated by
Buyer, with a certification acceptable to the Buyer and the Title Company. The
survey shall meet the minimum standard detail requirements adopted by
ALTA/ACSM (2011) and include such items of Table A as requested by Buyer.
The survey shall show the location of all easements referenced in Schedule B of
the current title commitment, improvements (including underground
improvements) and any and all other pertinent information with respect to the
Property. The survey shall also indicate any encroachments of improvements
onto easements or onto adjacent properties and certify to their absence and shall
indicate the presence of improvements and easements on property adjoining the
Property, if located within five (5) feet of the boundaries of the Property.
c. Buyer's Objections. Within ten (10) days after Buyer's receipt of both the Title
Commitment and the Survey, Buyer will make written objections ("Objections")
to the form and/or contents of the Title Commitment and the status of title.
Buyer's failure to make Objections within such time period will not constitute
waiver of objections. Any matter shown on the Title Commitment and not
objected to by Buyer shall be a "Permitted Encumbrance" under this Agreement.
Seller will attempt to correct all Objections within thirty (30) days after receiving
the Objections, during which period the Closing will be postponed as necessary.
If the Objections are not cured within such 30-day period, Buyer will have the
option to do any of the following:
GP:2945285 v4 5
(1} Terminate this Agreement without any liability and receive a refund of all
Earnest Money and accrued interest; or
(2) Buyer may waive the Objections and proceed to close.
d. Title Policy. Buyer may obtain at the Closing, at Buyer's expense, an Owner's
Title Policy issued by the Title Company, or a suitably marked up commitment
initiated by the Title Company undertaking to issue such a title policy required by
the commitment as approved by Buyer.
7. Operation Before Closing. During the period from the date of this Agreement to
the Closing Date, Seller will operate and maintain the Property in the ordinary course of
business.
8. Seller's Representations and Warranties. Seller represents and warrants to
Buyer, that:
a. Title to Property. Seller awns the Property, and on the Closing Date, the
Property will be free and clear of all encumbrances except the Permitted
Encumbrances.
b. Easements. The Property has full and complete legal access from a public road
by easements acceptable to Buyer, which will be provided to Buyer at the time of
Closing.
c. Assessments. Seller has not received any notice of actual or threatened special
assessments or reassessments of the Property, or any hearing notice of a new
public improvement project from any governmental assessing authority, the costs
of which maybe assessed against the Property.
d. Rights of Others to Purchase Property. Seller has not entered into any other
contracts for the sale of the Property, nor are there any rights of first refusal,
options to purchase, rights to build, leases or any other agreements regarding the
Property or any other rights of others that might prevent this Agreement's
consummation or affect the Property in any way.
e. No Other Parties in Possession. There are no parties, other than Seller, in
possession, or with a right to possession, of any part of the Property.
f. Construction Liens. No materials have been delivered nor any work or labor
performed on the Property under contracts with Seller during the last one hundred
twenty (120) days which have not been fully paid for, and no person or entity
presently has any lien, or right of lien, against the Property for labor or materials.
Seller will indemnify Buyer for all amounts that the latter may be compelled to
pay in discharging or settling any mechanics lien filed for record against the
Property and relating to such labor and/or materials.
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g. Unrecorded Easements. There are no unrecorded easements affecting the
Property.
h. Wells and Septic Systems. Seller certifies that there are no wells or septic
systems located on the Property.
i. Tanks. The Property does not, nor has it ever, contained any above ground or
underground storage tanks.
j. Proceedings. There is no action, litigation, or proceeding pending against Seller
in regards to any portion of the Property.
k. Authorization. Seller has the requisite power and authority to enter into this
Agreement and the Seller's Closing Documents signed by Seller. Seller's Closing
Documents will have been duly authorized by all necessary action on Seller's part
and will have been duly executed and delivered. Seller's execution, delivery and
performance of Seller's Closing Documents does not conflict with or result in
violation of any contract or agreement, or any judgment, order or decree of any
court or arbiter to which Seller is a party. Seller's Closing Documents are Seller's
valid and binding obligations, and are enforceable in accordance with their terms.
I. Environmental Laws. No toxic or hazardous substances or wastes, pollutants or
contaminants (including, without limitation, asbestos, ureaformaldehyde, the
group of organic compounds known as polychlorinated biphenyls, petroleum
products including gasoline, fuel oil, crude oil and various constituents of such
products, and any hazardous substance as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),
42 U.S.C. §9601-9657, as amended) have been generated, treated, stored, released
or disposed of, or otherwise placed, deposited in or located on the Property, nor
has any activity been undertaken on the Property that would cause or contribute to
(i) the Property to become a treatment, storage or disposal facility within the
meaning of, or otherwise bring the Property within the ambit of, the Resource
Conservation and Recovery Act of 1976 ("RCRA"}, 42 U.S.C. §6901 et seq., or
any similar state law or local ordinance, (ii) a release or threatened release of
toxic or hazardous wastes or substances, pollutants or contaminants, from the
Property within the meaning of, or otherwise bring the Property within the ambit
of, CERCLA, or any similar state law or local ordinance, or (iii) the discharge of
pollutants or effluents into any water source or system, the dredging or filling of
any waters or the discharge into the air of any emissions, that would require a
permit under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., or
the Clean Air Act, 42 U.S.C. §7401 et seq., or any similar state law or local
ordinance. There are no substances or conditions in or on the Property that may
support a claim or cause of action under RCRA, CERCLA or any other federal,
state or local environmental statutes, regulations, ordinances or other
environmental regulatory requirements, including without limitation, the
Minnesota Environmental Response and Liability Act, Minn. Stat. 115B
GP:2945285 v4
("MERLA") and the Minnesota Petroleum Tank Release Cleanup Act, Minn. Stat.
§ 115C. No above ground or underground tanks are located in or about the
Property, or have been located under, in or about the Property and have
subsequently been removed or filled. There are no known wells within the
meaning of Minn. Stat. ~ 103L005 on the Property. Seller has disclosed to Buyer
all environmental reports and studies with respect to the Property which are in
Seller's possession.
m. FIRPTA. Seller is not a "foreign person", "foreign partnership", "foreign trust"
or "foreign estate" as those terms are defined in Section 1445 of the Internal
Revenue Code.
n. Methamphetamine Disclosure. To the best of Seller's knowledge,
methamphetamine production has not occurred on the Property.
o. Lead Paint. Seller is not aware of any lead paint present in any of the structures
on the Property.
p. Designated Person. That Seller is not a "specially designated national and
blocked person" on the most current list published by the U.S. Treasury
Department Office of Foreign Asset Control; that Seller is not listed in the annex
to, and is not otherwise subject to the provisions of, Executive Order No. 13224
(the "Executive Order"}; and that Seller is not acting on behalf of any person or
entity that is listed in the annex to, or is otherwise subject to the provisions of the
Executive Order; and
Seller will indemnify Buyer, its successors and assigns, against, and will hold Buyer, its
successors and assigns, harmless from, any expenses or damages, including reasonable attorneys'
fees, that Buyer incurs because of the breach of any of the above representations and warranties,
whether such breach is discovered before or after Closing. Each of the representations and
warranties herein contained shall survive the Closing and delivery of the Warranty Deed. Other
than the above representations, Buyer is relying on its own inspections and investigations, and
Buyer is purchasing the Property with no warranty either expressed, implied or fitness for a
particular purpose and is purchasing the property in an "as is" "where is" condition.
9. Buyer's Representations and Warranties. Buyer represents and warrants to
Seller that Buyer has the requisite power and authority to enter into this Agreement and the
Buyer's Closing Documents signed by Buyer. Buyer's Closing Documents will have been duly
authorized by all necessary action on Buyer's part and will have been duly executed and
delivered. Buyer's execution, delivery and performance of Buyer's Closing Documents does not
conflict with or result in violation of any contract or agreement, or any judgment, order or decree
of any court or arbiter to which Buyer is a party. Buyer's Closing Documents are Buyer's valid
and binding obligations, and are enforceable in accordance with their terms. These warranties
will survive Closing.
GP:2945285 v4
That Buyer is not a "specifically designated national and blocked person" on the most
current list published by the U.S. Treasury Department Office of Foreign Asset Control; that
Buyer is not listed in the annex to, and is not otherwise subject to the provisions of, Executive
Order No. 13224 (the "Executive Order"); and that Buyer is not acting on behalf of any person or
entity that is listed in the annex to, or is otherwise subject to the provisions of the Executive
Order.
10. Damage. If, before the Closing Date, all or any part of the Property is
substantially damaged by fire, casualty, the elements or any other cause, Seller will immediately
give notice to Buyer of that fact and Buyer may cancel this Purchase Agreement and Buyer will
receive return of the Earnest Money.
11. Condemnation. If, before the Closing Date, eminent domain proceedings are
commenced against all or any part of the Property, Seller will immediately give notice to Buyer
of such fact, together with a Legal description of the property being taken, and Buyer shall have
the right at its option to terminate this Agreement by giving notice to Seller within thirty (30)
days after receiving Seller's notice or to purchase any remaining part of the Property which has
not been so taken by condemnation or eminent domain, with a prorata reduction in the Purchase
Price based on the number of square feet taken. Upon termination of this Agreement pursuant to
this Section, all Earnest Money will be returned to Buyer and neither party will have further
obligations under this Agreement. If this Agreement is not terminated under this Section, any
awards from such condemnation or eminent domain proceedings shall belong to Seller. Before
the Closing Date, Seller will not designate counsel, appear in, or otherwise act with respect to the
condemnation proceedings without Buyer's prior written consent, which shall not be
unreasonably withheld.
12. Broker's Commission. Seller represents and warrants that it has dealt with a
broker, finder or the like in connection with this transaction, and agrees to indemnify Buyer and
to hold Buyer harmless against all claims, damages, costs or expenses of or for any other such
fees or commissions resulting from its actions or agreements regarding the execution or
performance of this Agreement, and will pay all costs of defending any action or lawsuit brought
to recover any such fees or commissions incurred by the Buyer, including reasonable attorneys'
fees.
13. Mutual Indemnification. Seller and Buyer agree to indemnify each other
against, and hold each other harmless from, all liabilities (including reasonable attorneys' fees in
defending against claims) arising out of the ownership, operation or maintenance of the Property
for their respective periods of ownership. Such rights to indemnification will not arise to the
extent that (a) the party seeking indemnification actually receives insurance proceeds or other
cash payments directly attributable to the liability in question (net of the cost of collection,
including reasonable attorneys' fees) or (b) the claim for indemnification arises out of the act or
neglect of the party seeking indemnification. If and to the extent that the indemnified party has
insurance coverage, or the right to make claim against any third parry for any amount to be
indemnified against as set forth above, the indemnified party will, upon full performance by the
indemnifying party of its indemnification obligations, assign such rights to the indemnifying
party or, if such rights are not assignable, the indemnified party will diligently pursue such rights
GP:2945285 v4 C~
by appropriate legal action or proceeding and assign the recovery and/or right of recovery to the
indemnifying party to the extent of the indemnification payment made by such party.
14. Assignment. Neither party shall assign their rights under the Agreement without
the other party's consent, which consent will not be unreasonably withheld.
15. Survival. All of the this Agreement's teens will survive and be enforceable after
the Closing.
16. Notices. Any notice required or permitted to be given by any party upon the other
is given in accordance with this Agreement if it is directed to Seller by delivering it personally to
an officer of Seller, or if it is directed to Buyer, by delivering it personally to the City
Administrator of Buyer, or if mailed in a sealed wrapper by United States mail postage prepaid,
or if deposited cost paid with a nationally recognized, reputable overnight courier, properly
addressed as follows:
If to Buyer: City of Elk River
13065 Orono Parl,~vay
Elk River, MN 55330
Attn: Lori Johnson, City Administrator
Copies to: Mr. Robert Walter, Esq.
Gray Plant Mooty Mooty & Bennett PA
1010 West St. Germain Street, Suite 500
St. Cloud, MN 56301
If to Seller: The Houlton Investment Company
C/O Bill Houlton
1801 Main Street
Elk River, MN 55330
Copies to: Mr. James A. Bumgardner
Bumgardner Law Firm, PLLC
First National Financial Center, Suite 230
812 Main Street
P.O. Box 490
Elk River, MN 55330
Notices will be deemed effective on the earlier of the date of receipt or the date of deposit as
aforesaid; provided, however, that if notice is given by deposit, that the time for response to any
notice by the other party will commence to run one business day after any such deposit. Any
party may change its address for the service of notice by giving written notice of such change to
the other party, in any manner above specified, ten (10) days prior to the effective date of such
change.
GP:2945285 v4 1 Q
17. Captions. The paragraph headings or captions appearing in this Agreement are
for convenience only, are not a part of this Agreement and are not to be considered in
interpreting this Agreement.
18. Entire Agreement; Modification. This written Agreement constitutes the
complete agreement betvaeen the parties and supersedes any prior oral or written agreements
between the parties regarding the Property. There are no verbal agreements that change this
Agreement and no waiver of any of its terms will be effective unless in a writing executed by the
parties.
19. Binding Effect. This Agreement binds and benefits the parties and their
successors and assigns.
20. Controlling Law. Minnesota law will govern this Agreement.
21. Remedies.
Seller's Remedies: If Buyer defaults under this Agreement, Seller shall have the
right to terminate this Agreement by giving thirty (30) days written notice to Buyer. If Buyer
fails to cure the default within thirty (30) days of service of the notice, this Agreement will then
terminate. Upon such termination, Seller may retain the Earnest Money and interest, if any, as
liquidated damages as a result of the cancellation. Alternatively, Seller may bring suit against
Buyer to specifically perform this Agreement. The termination of this Agreement and retention
of Earnest Money as provided herein, or the suit for specific performance will be the exclusive
remedies available to Seller for any default by Buyer, and in no case will Buyer be liable for any
other damages or lost profits.
Buyer's Remedies: If Seller defaults under this Agreement, Buyer shall have the
right terminate this Agreement by giving thirty (30) days written notice to Seller. If Seller fails
to cure the default within thirty (30) days of service of the notice, this Agreement will then
terminate. Upon such termination, the Earnest Money and interest, if any, shall be refunded to
Buyer. Alternatively, Buyer may bring suit against Seller to specifically perform this
Agreement. The termination of this Agreement and reimbursement of Earnest Money provided
herein, or the suit for specific performance will be the exclusive remedies available to Buyer for
any default by Seller, and in no case will Seller be liable for any other damages or lost profits.
22. Counterparts. This Agreement may be executed in any number of Counterparts,
all of which together shall constitute the Agreement, and facsimile signatures shall be sufficient.
23. Seller's Contingeney. This Purchase Agreement and sale are contingent upon
Seller securing the consent for the sale from FTN Financial. Seller shall provide notice and
copies of said consent to Buyer within thirty (30) days of the date of this Agreement. If consent
is not received within the 30-day period, this Agreement may be declared void by either party
upon written notice and Seller shall return the earnest money to Buyer and shall reimburse Buyer
for Buyer's actual out-of-pocket costs for title work, survey and attorney's fees.
GP:2945285 v4 11
24. Construction of Contract. Non ~'0'Ierger. This Agreement shall not be construed
more strictly against one party than against the other, merely by virtue of the fact that it may
have been drafted or prepared by counsel for one of the parties, it being recognized that both
Buyer and Seller have contributed substantially and materially to the preparation of this
Agreement.
All covenants, representations and warranties contained herein shall not merge and shall
survive Closing unless expressly waived in writing.
25. Agreement Binding. This Agreement shall inure to the benefit of, and be
binding upon, the administrators, successors, heirs and assigns of the parties hereto.
The parties have executed this Agreement effective as of the date first written above.
BUYER:
CITY OF ELK RIVER
SELLER:
THE HOULTON I1~TVESTMENT
COMPANY
By
Its
ATTEST:
e------
L° °.~.--~_.._
By
By: W ~ iam Hou/lto
Its: ~1~%~~C -~~
GP:2945285 v4 12
EXHIBIT A
(Legal Description}
The South 65 feet of Lot 3, Block 5, Village of Elk River, except the West 8 feet thereof and the
North 100 feet of the East 16 feet of the West 24 feet of Lot 3, Block 5, Village of Elk River and
the South 6~ feet of the East ~2 feet of Lot 4, Block 5, Village of Elk River and the North 15 feet
of the South 80 feet of the East 32 feet of the West 46 feet of Lot 4, Block 5, Village of Elk
River and the South 65 feet of the West 14 feet of Lot 4, Block 5, Village of Elk River and the
South 65 feet of Lot 5, Block ~, Village of Elk River and Lot 16, Auditor's Subdivision No. 4,
except the West 140 feet thereof, according to the recorded plat thereof on file and of record in
the office of the County Recorder in and for Sherburne County, Minnesota.
GP:2945285 v4 13
EXHIBIT B
(Map of Property and Easements)
See attached.
GP:2945285 v4 14
ExHl~i~ ~
~~
i
_ - -- - _ --
tl SET feet
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Easement for access aisles for vehicular -- ~ ,~
and pedestrian ingress and egress ~~~~~
~ a~ei
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TNs dra,.by is skrther a kSalty rtcxi-d map noe a
Survey and Is not irtendcd s be used as a+w Th4s
d,awtr+( is a oamp.lativn d reradry Inbnnalery and dzta
Iocaeed In varbvs ti: /, coanry, sod st8e oKres, s~
oshev swrtes aFTeedn6<hs area slwsr; andtf to (x used
Tcr r_fererce euiyaes o.4y. The Ch eE EIF Al,.u b rws
resvenCbk Toranyirucewaeks hereto ramained.
® ookon & Mark Inc• k+tc4 CsiS
~tauitae~ Parking lvt
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