4.1. ERMUSR 07-12-2016 Elk River
Municipal Utilities UTILITIES COMMISSION MEETING
TO: FROM:
Elk River Municipal Utilities Commission Troy Adams, P.E. —General Manager
John Dietz—Chair
Al Nadeau—Vice Chair
Daryl Thompson—Trustee
MEETING DATE: AGENDA ITEM NUMBER:
July 12, 2016 4.1
SUBJECT:
Field Service Facility Expansion Update; Purchase Agreement—PID#75-411-0220, 75-411-
0250, and 75-409-0740
DISCUSSION:
The Commission awarded Kodet Architectural Group the bid for an ERMU Field Services Facility Study
on June 2015.Kodet performed an analysis on facility needs determining ERMU's Field Service Facility
at 1705 Main Street was only sized to meet 33%of the current needs.
Based on preliminary square footage requirement to expand that facility to meet current as well as growth
needs,it was determined that additional property would be needed. ERMU engaged the owners of 1437
Main Street,an adjacent property to the Field Services Facility.Negotiation resulted in the execution of a
purchase agreement for three parcels: #75-411-0220,75-411-250,and 75-409-0740. Parcel ID#75-411-
0220 and 75-411-250 make up the address 1437 Main Street.Parcel ID#75-409-0740 is a stand-alone
property across 4th street from 1437 Main Street. These parcels are indicated with the yellow outline on
the attached drawing. The closing is scheduled to occur in July.
DISCUSSION:
With pending purchase of 1437 Main Street, staff is now able to constructively work with Kodet on
options for the expansion of the Field Service Facility. Some of the next items for consideration are:
• Evaluation of expansion options with Kodet.Begin expansion design process.
• 1627 Main Street(PID#75-411-0240)and 1639 Main Street(PID#75-411-0210)—These are the
other adjacent residential properties which ERMU purchased during the economic downturn.
Current tenant leases are through spring of 2017.
• 1437 Main Street(PID#75-411-0220 and 75-411-250)—Current tenant lease is through August
15,2016. This property is not in compliance with City ordinance because the garage had not been
replaced since it was lost in a fire a few years ago.Also,the rental license is expired.
• Options for PID#75-409-0740.
• Rezoning 1437, 1627,and 1639 Main Street.
• Relocation of wetlands from east of the Field Services Facility to the south as a protective buffer
for the river.
• Relocation of existing utilities that run through the site as needed based on the selection of
expansion option.
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ACTION REQUESTED:
Staff requests the Commission receive the executed Purchase Agreement.
ATTACHMENTS:
• Map - ERMU Field Service Facility Expansion-PID#75-411-0220, 75-411-0250 and
75-409-0740
• Executed Purchase Agreement—PID#75-411-0220, 75-411-0250, and 75-409-0740
Page2of2 rERED
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SALE AND PURCHASE AGREEMENT
THIS SALE AND PURCHASE AGREEMENT (the "Agreement"), is made as of
Z.>.ne 2 C[ , 2016 (the "Effective Date" of this Agreement) between the ELK RIVER
MUNICIPAL UTILITIES, a Minnesota municipal utility (the "Buyer") and STUART W.
MACGIBBON, a single person, and JAMES H. MACGIBBON, a single person, as tenants in
common,("Sellers").
In consideration of the mutual covenants and agreements hereinafter contained, the
parties agree as follows:
1. SALE AND PURCHASE OF REAL PROPERTY. Sellers shall sell to Buyer, and
Buyer shall purchase from Sellers the property legally described and attached hereto as Exhibit A
(the "Property"), together with improvements, easement, air rights and other rights benefitting
or appurtenant to the Property.
2. PURCHASE PRICE AND MANNER OF PAYMENT. The purchase price
("Purchase Price")to be paid by Buyer to Sellers shall be Three Hundred Thousand and No/100
Dollars($300,000.00),subject to the following deductions and payable as follows:
(a) Upon execution of this Agreement, $15,000.00 as earnest money ("Earnest
Money"), to be held by the Seller and disbursed in accordance with the terms of
this Purchase Agreement;
(b) The balance of the Purchase Price, as adjusted by any prorations and other
adjustments required hereunder, shall be paid by wire transfer on the Closing
Date.
Sellers shall provide Buyer wire transfer instructions in advance of the Closing Date.
Sellers and Buyer acknowledge that the Property is sold under the threat of condemnation.
Sellers specifically acknowledge that the Purchase Price paid pursuant to this Agreement fully
satisfies Buyer's obligations to provide relocation assistance, minimum compensation and other
benefits as required under applicable law. Sellers agree that by acceptance of the consideration
provided for herein, Sellers release and discharge Buyer, its officers, employees, agents,
successors and assigns, of and from any and all liability and claims, at law or in equity, and
under any state or federal law, for relocation expenses for real and personal property taken,
including minimum compensation damages, other damages, interest, and costs, arising out of or
in connection with the acquisition of the Property. Buyer and Sellers shall, at closing, enter into
an Agreement Regarding Release, Payment and Assignment of Relocation Benefits substantially
in the form attached as Exhibit B.
3. CONDITIONS TO BUYER'S OBLIGATIONS. The obligations of Buyer under this
Agreement are conditioned upon satisfaction or waiver by Buyer of each of the following by the
respective dates indicated:
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(a) Access. Sellers shall allow Buyer and Buyer's agents access to the Property
without charge and at all reasonable times for the purpose of investigation and testing.
Buyer shall pay all costs and expenses of such investigation and testing and shall
indemnify, defend and hold Sellers and the Property harmless from all costs and
liabilities relating to Buyer's activities; provided that Buyer shall not be responsible for
existing conditions on the Property nor the cost of investigations or studies completed by
Sellers before the Effective Date. Buyer shall further repair any damage to the Property
caused by or occurring as a result of Buyer's testing. The foregoing covenants shall
survive the termination or cancellation of this Agreement.
(b) Title. Title shall have been found acceptable by Buyer in its sole discretion, or
been made acceptable, in accordance with the requirements and terms of Section 4
below.
(c) Representations and Warranties. The representations of Sellers contained in this
Agreement will be true now and on the Closing Date as if made on the Closing Date.
(d) Investigations or Testing. Buyer determining on or before the Closing Date, that
it is satisfied, in its sole discretion, with the results of matters disclosed by any
environmental/engineering investigation or testing of the Property performed by Buyer or
Buyer agent.
(e) Document Review. Buyer determining on or before the Closing Date, that it is
satisfied, in its sole discretion,with its examination and analysis of all documents relating
to the Property, including, without limitation, the following (collectively, the
"Documents"): (i) statement for taxes, assessments and utilities payable in the current
and two (2) prior calendar years for the Property; (ii) blueprints, surveys, plats or other
depictions relating to the Property and improvements that are in Sellers' possession or
control or are otherwise obtained by Buyer; and (iii)the Lease between Sellers and Tyler
Belfanz dated January 29,2016("Lease").
(0 Estoppel Certificate. An Estoppel Certificate has been provided in a form
acceptable to Sellers and Buyer for the Lease to be assumed.
If any condition set forth in this Section 3 has not been satisfied or waived on or before the
Closing Date (the "Inspection Deadline"), then Buyer may,•at Buyer's option, terminate this
Agreement. Upon such termination, neither Sellers nor Buyer shall have any further rights or
obligations under this Agreement except for the covenants made in Section 3(a), Section 8 and
Section 9 (the "Surviving Covenants") and Buyer shall be entitled to return of the Earnest
Money. If Buyer has not terminated this Agreement on or before the Inspection Deadline, then
Buyer shall be deemed to have waived the contingencies set forth herein.
4. TITLE MATTERS. Title examination shall be conducted as follows:
(a) Title Evidence. Within fifteen (15) days of the date of this Agreement, Buyer
shall be responsible for obtaining a title insurance commitment ("Title Commitment")
from such title company selected by Buyer(the "Title Company") for an ALTA Form B
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2006 Owner's Policy of Title Insurance committing to insure a marketable title to the
Property in Buyer; deleting so-called "standard exceptions" related to parties in
possession, and liens for labor, materials and services; including affirmative insurance
regarding appurtenant easements, separate real estate taxation, and contiguity, in the
amount of the Purchase Price, and issued by the Title Company. The cost of the Title
Commitment shall be paid by Buyer. The Title Commitment shall include complete and
accurate copies of all matters described in Schedule B thereof.
(b) Buyer's Objections. Within fifteen(15) days after receiving the last item of the
Title Commitment,Buyer shall notify Sellers of any objections("Objections")to matters
disclosed in the Title Commitment. Buyer shall be deemed to have automatically made
Objections to any mortgage,judgment, tax lien, mechanic's lien and any other monetary
lien against the Property (collectively"Monetary Liens"). With respect to any update to
the Title Commitment, Buyer shall have 10 days after Buyer's receipt of the applicable
updated Title Commitment to notify Sellers of any Objections; provided that Buyer shall
not have the right to object to any matters that were shown on a previous Title
Commitment and not timely objected to by Buyer. Sellers shall have no obligation to
correct any Objections; provided, however, Sellers shall cause to be satisfied at Closing
all voluntary Monetary Liens (mortgages and other liens which Sellers have consented to
or joined in) out of proceeds from Closing on the Closing Date if they are not satisfied
prior thereto. At Closing, Buyer shall have the right to require endorsement(s) to the
Title Policy. If the Objections are not cured prior to the Closing Date, Buyer will have
the option to do any of the following by notice provided to Sellers:
(i) Terminate. Terminate this Agreement pursuant to Section 3 herein, on or
before the Closing Date. Upon such termination,neither Sellers nor Buyer shall
have any further rights or obligations under this Agreement, except for the
Surviving Covenants. Buyer shall be entitle to return of the Earnest Money; or
(ii) Waive. Waive the Objections and close the transaction contemplated by
this Agreement as if such Objections had not been made or waive the
Objections pending Sellers' cure of the objections at or before Closing, in which
case, Buyer's right to terminate this Agreement under Section 3 will extend
until Closing.
(c) Title Policy. If the Closing occurs, Title Company shall issue an owner's title
insurance policy ("Title Policy") pursuant to the Title Commitment, or a suitable marked
up of the Title Commitment initiated by the Title Company undertaking to issue such a
Title Policy within a reasonable time in the form required by the Title Commitment as
approved by Buyer. The Title Policy shall be paid for by Buyer.
5. CLOSING PROCEDURES.
(a) Closing Date. The closing of the purchase and sale contemplated by this
Agreement (the "Closing") shall occur on or before July 29, 2016, or such later date as
mutually agreed to by the Buyer and Sellers (the "Closing Date") or as otherwise
extended under the terms of this Agreement. The Closing shall take place at 10:00 a.m.
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local time at the office of Title Company, or such other time or location as determined by
the Buyer and shall be completed through escrow of closing documents and funds with the
Title Company.
(b) Sellers' Closing Documents. On the Closing Date, Sellers shall execute and/or
deliver to Buyer the following(collectively,the"Sellers' Closing Documents"):
(I) Deed. A Warranty Deed (the "Deed"), in recordable form, conveying
marketable title to the Property to Buyer,free and clear of all encumbrances,other
than those encumbrances not objected to or waived pursuant to Section 4 above;
(ii) Sellers' Affidavit. The standard owner's affidavit as may be required by
the title Insurer to issue the Title Policy in the form required by Section 4 above;
(iii) FIRPTA Affidavit. A nonforeign affidavit, properly executed and in
recordable form, containing such information as is required by IRC
Section 1445(b)(2)and its regulations;
(iv) Well Disclosure Statement. A Well Disclosure Statement, properly
executed and in recordable form, disclosing any wells existing on the property or,
if no wells,a statement to that effect on the Deed;
(v) Estoppel Certificate. Fully executed estoppel certificate covering the
Lease on a form approved by Buyer;
(vi) Keys to all locks on the Property;
(vii) Assignment. An assignment of the Lease to Buyer, including the security
deposit collected under the Lease; and
(viii) Other Documents. All other documents reasonably determined by Buyer
or the Title Company to be necessary to transfer the Property to Buyer, provided
the same are acceptable to Sellers, including a Closing Statement,which shall also
be joined in by Buyer.
(c) Buyer's Closing Documents. On the Closing Date, Buyer will execute and/or
deliver to Sellers the following(collectively,"Buyer's Closing Documents"):
(i) Purchase Price. The Purchase Price to be paid as required by Section 2
hereof; and
(ii) Title Documents. Such affidavits of Buyer or other documents as may be
reasonably required by the Title Company in order to record Sellers' Closing
Documents and issue the Title Policy.
(d) Possession. Sellers shall deliver possession of the Property not later than the
actual date of closing.
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6. PRORATIONS. Sellers and Buyer shall make the following prorations and allocations
at the Closing:
(a) Title Insurance and Closing Fee. Buyer shall pay the cost of the Title Commitment,
the related title searches and a GAP endorsement. Buyer shall pay the cost of the
premium for the Title Policy and all other endorsements. Sellers and Buyer will
each pay one-half of any rea -nable -nd customary closing fee or charge imposed
by the Title Company or it ;- . - . closing agent.
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(b) Deed Tax. 5�clrs-s ll p. all stat- deed tax due on the Deed to be delivered by
Sellers under this Agreement.
(c) Real Estate Taxes and Special Assessments. Sellers shall pay or cause to be paid
all general real estate taxes payable for the Property in the years prior to the year in
which the Closing occurs, and any deferred or Green Acres real estate taxes.
Sellers and Buyer shall prorate the general real estate taxes and installments of
special assessments, if any, payable for the Property in the year of closing as of the
Closing Date bav_d upon the Galen., ea .
(d) Recording Costs Seu -wpa 0 e cos, of recording all documents necessary to
place record title in Sellers. yer will pay the cost of recording all other
documents.
(e) Attorneys' Fees. Sellers and Buyer shall each pay its own attorneys' fees in
connection with the preparation and negotiation of this Agreement and the Closing,
except that a party defaulting under this Agreement or any of its respective Closing
Documents shall pay the reasonable attorneys' fees and court costs incurred by the
nondefaulting party to enforce its rights regarding such default.
(f) Utilities. Final readings on all gas,water and electric meters shall be made as of the
Closing Date,or as soon thereafter as is possible. Sellers shall be responsible for all
charges for consumption of utilities through the Closing Date.
(g) Operating Costs. Other operating costs shall be prorated between the Sellers and
Buyer as of the Closing Date, with Sellers paying all such items applicable to the
period through the Closing Date.
(h) Rent. Sellers shall receive all rent from tenant under the terms of the Lease through
the Closing Date and Buyer shall receive rent under the Lease thereafter. Sellers
shall assign the security deposit under the Lease to Buyer.
7. OPERATION PRIOR TO CLOSING. During the period from the Effective Date
through the Closing Date(the"Executory Period"), Sellers shall not execute any contracts, leases,
or other agreements regarding the Property,nor perform any act that would impair or encumber the
title to the Property or affect the condition of the Property.
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8. REPRESENTATIONS BY SELLERS. Sellers represent to Buyer as follows, which
representations shall be true and correct as of the Closing, and which representations are based on
Sellers' actual knowledge only,without any inquiry or investigation by Sellers:
(a) Authority. Sellers' execution, delivery, and performance by Sellers 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 Sellers are a party, or any agreement by which Sellers are
bound; and such documents are and shall be valid and binding obligations of Sellers,
enforceable in accordance with their terms.
(b) Title to Property. Sellers own fee title to the Property,
(c) Mechanic's Liens. All labor and materials which have been provided to the
Property have been fully paid for or will be fully paid for,prior to the Closing Date.
(d) Utilities. Sellers make no representations regarding utilities.
(e) Rights of Others to Purchase the Property. Sellers have not entered into any other
contracts, agreements or understandings, whether oral or written,for the sale of all or any
portion of the Property, and there are no existing rights of first refusal or options to
purchase all or any portion of the Property, or any other rights of others that might prevent
the consummation of this Agreement.
(0 Storage Tanks. There are no above-ground or underground tanks are located in or
on the Property.
(g) Wells and Septic. Sellers know of no wells on the Property. At the time of
Closing, Sellers will deliver any required well certificate pursuant to applicable laws. To
Sellers' knowledge, there is no "individual sewage treatment system" within the meaning
of Minn. Stat. Section 115.55 on or serving the Property.
(h) Assessments. Buyer shall make its own investigation regarding special
assessments.
(i) Litigation and Other Matters. Sellers have received no notice, and have no
knowledge of any pending notice, of a violation of any statutes, ordinances, regulations,
judicial decrees, or orders, or the pendency of any lawsuits, administrative or arbitration
hearings, governmental investigations, proceedings, applications, petitioners, or other
matters affecting the Property or the use thereof, except those which may have been
initiated by or participated in by Buyer.
(j) Rights of Others to Purchase the Property. Sellers have not entered into any other
contracts, agreements or understandings, whether oral or written, for the sale of all or any
portion of the Property, and there are no existing rights of first refusal or options to
purchase all or any portion of the Property, or any other rights of others that might prevent
the consummation of this Agreement.
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(k) Condemnation. Buyer shall make its own determination regarding condemnation
proceedings.
(1) Hazardous Substances. To Sellers' knowledge there are no Hazardous Substances
stored, deposited or located within the Property or under the surface of the Property. For
purposes of this representation, the term "Hazardous Substances" means asbestos and
asbestos-containing materials, polychlorinated biphenyls, nuclear fuel or materials,
chemical waste, radioactive materials, explosives, known carcinogens, petroleum products,
or other dangerous, toxic, or hazardous pollutant, contaminant, chemical, material or
substance defined as hazardous or as a pollutant or contaminant in, or the release or
disposal of which is regulated by, any Environmental Laws. For purposes of this
Agreement, the term "Environmental Laws" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42
U.S.C. §§ 9601-9657, as amended, and any other federal, state and local laws, rules and
regulations dealing with Hazardous Substances,the environment or public health.
(m) FIRPTA. Sellers are 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) Protected Historical Sites. To Sellers' knowledge, the Property does not have any
American Indian burial grounds, other human burial grounds, ceremonial earthworks,
historical materials, and/or other archeological sites that are protected by federal or state
law. Buyer's obligation to close is contingent upon Buyer determining to Buyer's
satisfaction that the Property does not have any American Indian burial grounds, other
human burial grounds, ceremonial earthworks, historical materials, and/or other
archeological sites that are protected by federal or state law.
(o) Compliance with Laws. To the best of Sellers' knowledge, the Property and the
current use thereof fully complies with all existing local, state and federal regulations
concerning the maintenance and operation of the Property, including zoning, building,
health and safety, fire safety,and environmental codes and laws. No notice of violations of
the same have been received.
(p) Lien for Medical Assistance. Sellers indicate that the Property is subject to a lien
for Medical Assistance or other public assistance.
(q) Lead Paint Disclosure. Sellers represent that the dwellings WERE constructed on
the Property before 1978. (If such housing is located on the Property, attached and made a
part of this Purchase Agreement is "LEAD PAINT ADDENDUM FOR HOUSING
CONSTRUCTED BEFORE 1978".)
(r) Methamphetamine Disclosure. To the best of Sellers' knowledge,
methamphetamine production HAS NOT occurred on the Property.
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The representations in this Section 8 shall survive the Closing.
9. REPRESENTATIONS AND INDEMNITY BY BUYER. Buyer represents to Sellers
that Buyer has the power and authority to execute this Agreement and any Buyer's Closing
Documents signed by it;that all such documents have been authorized by all necessary action on
the part of Buyer and at the Closing shall have been duly executed and delivered; that the
execution, delivery, and performance by Buyer of such documents does not conflict with or
violate any judgment,order or decree of any court or arbiter or any agreement by which Buyer is
bound; and that all such documents are valid and binding obligations of Buyer and are
enforceable in accordance with their terms.
The representations in this Section 9 shall survive the Closing.
10. CONDEMNATION. If, prior to the Closing Date, any governmental entity commences
any eminent domain proceedings ("Proceedings") against all or any part of the Property, Sellers
shall give notice to Buyer of such fact, and, at Buyer's option (to be exercised by notice to
Sellers within thirty(30) days after Sellers' notice), this Agreement shall terminate. Upon such
termination, neither Sellers nor Buyer shall have any further rights or obligations under this
Agreement, except for the Surviving Covenants. If Buyer does not give such notice, then there
shall be no reduction in the Purchase Price, provided, however, that Sellers shall assign to Buyer
at the Closing Date all of Sellers' right,title,and interest in and to any award made or to be made
in the Proceedings. Prior to the Closing Date, Sellers shall not designate counsel, appear in, or
otherwise act with respect to the Proceedings without Buyer's prior written consent.
11. ASSIGNMENT. Neither Sellers nor Buyer may assign its rights under this Agreement
for any other purpose, without the prior written consent of the other party.
12. SURVIVAL. All of the covenants and representations made in this Agreement which
either by their terms expressly survive Closing, or are contained in any schedule, exhibit,
certificate,or document delivered at Closing,will survive and be enforceable after the Closing.
13. NOTICES. Any notice required or permitted to be given under any provision of this
Agreement shall be in writing and shall be deemed to have been given in accordance with this
Agreement, if it is mailed, by United States certified mail, return receipt requested, postage
prepaid; or if deposited cost paid with a nationally recognized, reputable overnight courier,
properly addressed as follows:
If to Buyer: Elk River Municipal Utility
Attn: General Manager
P.O.Box 430
Elk River,MN 55330
with a copy to:Andrea McDowell Poehler
Grand Oak Office Center I
860 Blue Gentian Road, Suite 290
Eagan, MN 55121
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If to Sellers: Stuart W. MacGibbon
James H. MacGibbon
13533 Glasgow Lane
Apple Valley,MN 55124
Notice shall be effective, and the time for response to any notice by the other party shall
commence to run,one (1)business day after any such mailing or deposit. Either Sellers or Buyer
may change its address for the service of notice by giving notice of such change to the other
party, in any manner above specified, ten (10) days prior to the effective date of such change.
Notwithstanding the foregoing, any party may give any other party written notice hereunder by any
means other than by United States registered or certified mail or overnight courier, which is
reasonably calculated to reach the other party, including but not limited to hand delivery, email
transmission or facsimile transmission,provided that any such notice shall be deemed to have been
given and shall be effective only when actually received by the addressee, proof of which shall be
furnished by the party sending such notice.
14. CAPTIONS; EXHIBITS. The section and 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. All schedules, exhibits, addenda or attachments
referred to herein are hereby incorporated in and constitute a part of this Agreement.
15. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
complete agreement between Sellers and Buyer and supersedes any prior oral or written
agreements between them regarding the Property. There are no oral agreements that change this
Agreement, and no amendment of any of its terms will be effective unless in writing and
executed by both Sellers and Buyer.
16. BINDING EFFECT. This Agreement binds and benefits Sellers and Buyer and their
respective successors and assigns.
17. CONTROLLING LAW. This Agreement has been made under, and will be interpreted
and controlled by,the laws of the State of Minnesota.
18. WAIVER. No waiver of the provisions of this Agreement shall be effective unless in
writing, executed by the party to be charged with such waiver. No waiver shall be deemed a
continuing waiver or waiver in respect of any subsequent breach or default, either of similar or
different nature,unless expressly stated in writing.
19. COUNTERPARTS. This Agreement may be executed in any number of counterparts
and each such counterpart shall be deemed to be an original instrument,but all such counterparts
together shall constitute but one Agreement.
20. FACSIMILE SIGNATURES. This Agreement may be executed with signatures
transmitted by facsimile or email and shall constitute a binding agreement with such signatures.
Nonetheless, any party providing facsimile or emailed signatures shall provide the other party
with the original signatures within five(5) business days after providing the facsimile signature
page(s).
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21. SEVERABILITY. If any provision of this Agreement is invalid or unenforceable, such
provision shall be deemed to be modified to be within the limits of enforceability or validity, if
feasible; however, if the offending provision cannot be so modified, it shall be stricken and all
other provisions of this Agreement in all other respects shall remain valid and enforceable.
22. LIMITATION OF LIABILITY. Upon Closing, Buyer shall neither assume nor
undertake to pay, satisfy or discharge any liabilities, obligations or commitments of any Sellers
other than those specifically agreed to between the parties and set forth in this Agreement.
23. REMEDIES. Time is of the essence of this Agreement. If Sellers fail to perform any of
its obligations under this Agreement, Buyer may: (i) terminate this Agreement and Seller shall
be required to return the Earnest Money; or(ii)commence an action for specific performance of
this Agreement within six (6)months after the termination of this Agreement. Such termination
of this Agreement or specific performance action will be the only remedies available to Buyer
for a default by Sellers, and Sellers will not be liable for damages.
If Buyer defaults in performance of its obligations under this Agreement, Sellers shall have the
right to terminate this Agreement in the manner provided by Minn. Stat. Sec. 559.21 and retain
the Earnest Money as liquidated damages. Such termination of this Agreement will be the only
remedy available to Sellers for such default by Buyer, and Buyer will not be liable for damages
or specific performance.
24. BROKER'S COMMISSION. Each party represents to the other that it has not engaged
any party as a broker in connection with the transactions contemplated by this Agreement.
Sellers will indemnify Buyer from and against any and all liability to which Buyer may be
subjected by any broker's, finder's, or similar fee with respect to the transactions contemplated
by this Agreement to the extent such fee is attributable to any action undertaken by or on behalf
of Sellers or any affiliate of Sellers, including any claim by Sellers' Broker or any employee or
agent of Sellers' Broker. Buyer will indemnify Sellers from and against any and all liability to
which Sellers may be subjected by reason of any broker's, finder's or similar fee with respect to
the transactions contemplated by this Agreement to the extent such fee is attributable to any
action undertaken by or on behalf of Buyer.
Sellers and Buyer have executed this Agreement as of the date set forth above.
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BUYER:
ELK RIVER MUNICIPAL UTILITIES
By: � (\/-N-
Its: G e €rte\ vvka tAA t �--
SELLER :
7//eikte
Stuart W.MacGibbon V /
• " LLI,'i r/
Ja Ir' .MacGibbon
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EXHIBIT A
Lots 5, 6, 7, and 8, Block 2, Auditor's Addition to the Village of Elk River, according to the plat
thereof on file and of record in the office of the Register of Deeds.
AND
The East 42 feet of the North 243 feet of Lots 1,2, 3, and 4, Block 2 , Auditor's Addition to the
Village of Elk River, according to the plat thereof and being more particularly described as
follows: Beginning at the Northeast corner of said Lot 4; thence Southerly along the East lines of
said Lots 4, 3, 2, and l a total distance of 243 feet; thence Westerly, at right angles, a distance of
42 feet; thence Northerly and parallel with the East lines of said Lots 1, 2, 3, and 4 a distance of
243 feet to the north line of said Lot 4;thence Easterly 42 feet to the point of beginning.
AND
Lot 6, Block 7, Thomas's Addition Sherburne County, Minnesota, according to the recorded plat
thereof.
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EXHIBIT B
Agreement Regarding Release.Payment and Assignment of Relocation Benefits
THIS AGREEMENT REGARDING RELEASE, PAYMENT AND ASSIGNMENT
OF RELOCATION BENEFITS (this "Agreement") is made as of 3-...,•ne_ 2 Gi , 2016,
by and between STUART W. MACGIBBON, a single person, and JAMES H. MACGIBBON,
a single person, as tenants in common, ("Sellers"),the ELK RIVER MUNICIPAL UTILITIES,
a Minnesota municipal utility("Buyer").
RECITALS:
Sellers and Buyer entered into a purchase agreement (the "Purchase Aggreemnt")dated as
of ' ..'vi' 21, ,2016,related to property located at 1437 NA•kvi WtS}R��I 3ihesWYee's
Sellers have been advised of its rights and payments that Sellers may be eligible to receive
pursuant to the Uniform Relocation Assistance Act(the "Act"), including payments for Minimum
Compensation under Minn. Stat. 117.87 for the Property as legally described in the Purchase
Agreement.
Sellers acknowledge they have sought and received the advice of legal counsel and have
been specifically advised as to relocation, moving, reestablishment, and other costs that may be
available to the Sellers under the Act.
Sellers and Buyer desire to enter into this Agreement to confirm their understanding of the
Sellers' release, sale and assignment of any claim for any relocation benefits and/or other
relocation costs due or payable to Sellers,whether pursuant to the Act or otherwise.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged,the parties hereto do hereby agree as follows:
1. Effective as of the date hereof, Sellers hereby acknowledge that the payment of the
Purchase Price includes payment for Relocation Benefits and Minimum Compensation Benefits
and hereby releases Buyer from any liability for payment of additional relocation payments
pursuant to the Act(or other federal or state law provisions)with respect to the Property.
2. Effective as of the date hereof, Sellers hereby sell, transfer and assign to Buyer any
benefits, payments, claims, or other rights due or payable to Sellers pursuant to the Act (or other
federal or state law provisions) with respect to the Property legally described in the Purchase
Agreement.
3. Sellers acknowledge that they have freely released such rights of their own volition.
4. Sellers acknowledge that they have released such rights with full knowledge of the
specific relocation benefits to which it would otherwise be entitled.
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5. This Agreement may be executed in any number of counterparts, each of which
shall be an original,but all of which together shall constitute one instrument.
6. This Agreement shall be null and void if the Purchase Agreement shall terminate or
if Closing under the Purchase Agreement shall fail to occur for any reason.
IN WITNESS WHEREOF, this Release, Payment and Assignment of Relocation
Benefits Agreement has been executed by the parties hereto as of the day and year first above
written.
SELLE' .:
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Stuart W.MacGibbon "1
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JH.MacGibbo
BUYER:
ELK RIVER MUNICIPAL UTILITIES
By: e 0,"
Its: 6`evt42r`.\ atiL4 c,%e
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