RES 16-85of
LAM
ResaWttion 16-85
A Resolution of the City of Elk River Authorizing Acquisition of a Portion of
Old Highway 10 from Sherburne County
WHEREAS, on November 2, 2015, the City entered into a purchase agreement with E&R
Investments, LLC ("E&R") to convey several vacant properties located at the Southeast comer of US
Hwy 10 & Joplin Street NW (the "Properties"); and
WHEREAS, under the agreement with E&R, the city was required to acquire a portion of old
Highway 10 from the County of Sherburne (the "County Property"); and
WHEREAS, on March 7, 2016, the city entered into a purchase agreement with the County of
Sherburne to acquire the county property; and
WHEREAS, the city and E&R desire to close on the sale of the properties to E&R; and
WHEREAS, prior to closing, it is necessary for the city and the county to execute an Amended
and Restated Purchase Agreement (Attachment 1), which amends the original purchase agreement with
the county to acknowledge that it is no longer necessary to facilitate the relocation of a county -owned
billboard and to correct the legal description of the county property.
NOW, THEREFORE, BE 17 RESOLVED by the City Council of the City of Elk River, Minnesota,
as follows:
1. The Council hereby authorizes the acquisition of the county property, as provided in the Amended
and Restated Purchase Agreement (Attachment 1); and
2. City staff and the law firm of Kennedy & Graven, Chartered, are authorized and directed to take all
steps necessary to close on the acquisition of the county property including, without limitation, to
execute the Amended and Restated Purchase Agreement.
Passed and adopted this 19`° day of December 2016.
n Jj6ictz, ayor
ATTEST:
Tina Allard, City Clerk
P0*IOII I
NATURE
AMENDED AND RESTATED
PURCHASE AGREEMENT
1. PARTIES. This Purchase Agreement is made on December 20, 2016 to
amend that certain purchase agreement dated March 1, 2016 between the
County of Sherburne, State of Minnesota, 13880 Business Center Drive, Elk
River Minnesota 55330 (a municipal entity) ("Seller") and the City of Elk River
("Buyer"), 13065 Orono Parkway, Elk River Minnesota 55330.
2. OFFER/ACCEPTANCE. Buyer offers to purchase and Seller agrees to
sell real property located in the vicinity of Joplin and Business Center Drive,
City of Elk River, County of Sherburne, State of Minnesota, legally described
as:
All that part of the West Half of the Northeast Quarter of the Southwest
Quarter of Section 32, Township 33, Range 26, Sherburne County, Minnesota,
described as follows: Commencing at the Northeast corner of said West Half of
the Northeast Quarter of the Southwest Quarter thence south along the east
line thereof to intersect with the southerly right-of-way line of Main Street as
dedicated in the plat of GOSPODOR'S ORONO LAKE ADDITION, according to
said plat on file and of record in the office of the County Recorder, Sherburne
County, Minnesota, said point being the point of beginning; thence westerly
along the westerly extension of said southerly right of way to the west line of
said West Half of the Northeast Quarter of the Southwest Quarter; thence north
along said west line to intersect the centerline of Old U.S. Highway No. 10 (said
centerline being a line drawn 33.00 north of said westerly extension), thence
easterly along said centerline to said east line; thence south along said east line
to the point of beginning.
Further, the Buyer and the Seller acknowledge there is an old existing billboard
subject to an existing lease as referenced in Section 5(i) that has historically
been used for advertisement for the county which will be removed.
3. ACCEPTANCE DEADLINE. This offer to purchase, unless accepted
sooner, shall be null and void at 5:00 p.m. on March 1, 2017 and in such event
all earnest money shall be refunded to Buyer.
4. PRICE AND TERMS. The price for the real and personal property
included in this sale is eighteen thousand three hundred sixty five dollars
($18,365), which Buyer shall pay as follows:
Earnest money of $1,000.00, the receipt of which is hereby acknowledged, and
the balance of $17,365.00 in cash or by certified check on April 1, 2016, the
DATE OF CLOSING. The closing shall be held at Sherburne County Title and
Abstract, Elk River, Minnesota or at another closing company as agreed on by
the Parties.
S. DEED/MARKETABLE TITLE. Upon performance by Buyer, Seller shall
execute and deliver a -Warranty Deed conveying title subject to:
(A) Building and zoning laws, ordinances, state and federal
regulations;
(B) Reservation of any mineral rights by the State of Minnesota;
(C) Utility and drainage easements which are of record or permitted by
the improvements;,
(D) The following exceptions to title which constitute encumbrances or
restrictions which have been disclosed to Buyer and accepted by
Buyer in this Purchase Agreement (must be specified in writing): I)
The land is encumbered by the unrecorded right of access by
property identified by Property Identification Number 75-132-2426;
(E)
The County of Sherburne has a lease agreement with the Sherburne County
Agricultural Society who in turn has a limited leasehold interest in the
billboard and access to the billboard attached as Exhibit C. The County shall
procure a quit claim deed releasing the Sherburne County Agricultural
Society's interest in the lands being sold as well as the billboard.
6. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. Buyer shall pay
real estate taxes due and payable in the year following closing and thereafter
and any unpaid special assessments payable therewith and thereafter, the
payment of which is not otherwise provided for herein.
There are presently no real estate taxes on the land as it is held in the name of
the Seller who is a governmental agency. When the lands are transferred to an
entity that is not tax exempt, then the non -tax exempt entity shall be
responsible for any future imposition of real estate taxes.
There are no special assessments ordered, pending or levied against the lands.
Any special assessments levied against the land subsequent to the date of the
purchase agreement shall be the responsibility of the Buyer.
As of the date of this Agreement, Seller represents that Seller has not received a
Notice of Hearing of a new public improvement project from any governmental
assessing authority, the costs of which project may be assessed against the
property.
Seller makes no representation concerning the amount of future real estate
taxes or of future special assessments.
7. SELLER'S LIEN WARRANTIES. Seller warrants that there has been no
labor or material furnished to the real property for which payment has not
been made.
Any warranties and representation in this Purchase Agreement shall survive
the delivery of the Deed or Contract for Deed.
a. OONDHTION OF PROPERTY. Buyer shall have the right to have
inspections of the property conducted prior to closing. If the Buyer seeks to
conduct any testing on the property, i.e., soil borings, the Buyer shall provide
in writing a description of the testing and obtain written permission from the
Seller. The Seller shall not unreasonably withhold permission. The Buyer
shall pay for all costs associated with the testing and inspections and not allow
any mechanic's liens to attach to the property.
There are no known wells on the land being conveyed.
The Seller does not have any written evidence of utilities being located on the
property. However, field inspection may determine that such utilities are
located on the lands to be sold. If utilities are located on the lands that are
being sold, the parties shall work together in good faith toward a modification
in the purchase price. If the parties are unable to come to resolution, then sole
remedy of the Buyer is to declare the purchase agreement null and void and
the earnest monies of the Buyer shall be returned.
The Seller makes no representations on the wetlands, flood plain or Shoreland
as it pertains to the property.
Seller and Buyer agree that property identification number 75-132-
2426 has an access to Business Center Drive that crosses the land
subject to this purchase agreement. It shall be the Buyer's
responsibility to address this issue in the manner they deem
appropriate. Buyer agrees to indemnify and hold harmless the
Seller and its officers, officials, agents and employees from any
liability, claims, losses, damages, costs, judgments, or expenses,
including reasonable attorneys' and other professional fees,
resulting from the act of relocation of the access point by any
intentional, negligent, tortious or illegal act or omission of Buyer,
including without limitation, professional errors or omissions by
the persons under the Buyer's direction and control arising from
the access issue.
A map of the existing utilities can be found in Exhibit B.
v. DESCL®SUR3E OF NOTICES. Seller has not received any notice from any
governmental authority as to violation of any law, ordinance or regulation.
10. TIMING. Seller recognizes that the Buyer is assembling parcels with the
end goal of having sufficient acreage to develop a commercial lot(s) for
development. The Seller agrees that this Agreement is contingent upon the
Buyer acquiring title to the following parcels:
75-132-2425 (only as it applies to the north 33 feet of centerline of
old Highway 10)
75-132-3101
75-575-0010
An aerial photo of the properties can be found in Exhibit A.
11. POSSESSION. Seller shall deliver possession of the property not later
than the DATE OF CLOSING subject to the right of access to the newly
constructed billboard for operation and maintenance.
12. EXAMINATION OF TITLE. The Seller does not have an Abstract on the
lands. Therefore, within a reasonable time after acceptance of this Agreement,
Seller shall furnish Buyer with an Owners and Encumbrances report including
proper searches covering bankruptcies and State and Federal judgments, liens,
and levied and pending special assessments. Buyer shall have 30 business
days after receipt of the Owners and Encumbrances Report either to have
Buyer's attorney examine the title and provide Seller with written objections or,
at Buyer's own expense, to make an application for a Title Insurance Policy and
notify Seller of the application. Buyer shall have thirty (30) business days after
receipt of the Commitment for Title insurance to provide Seller with a copy of
the Commitment and written objections. Buyer shall be deemed to have waived
any title objections not made within the applicable thirty (30) day period
provided for above, except that this shall not operate as a waiver of Seller's
covenant to deliver a Limited Warranty Deed.
Further, the Seller agrees that it shall cooperate in an application for certificate
of possessory title if requested by the Buyer.
13. TITLE CORRECTIONS AND REMEDIES. Seller shall have 180 days
from receipt of Buyer's written title objections to correct or resolve the
objections. Upon receipt of Buyer's title objections, Seller shall, within ten (10)
business days, notify Buyer of Seller's intention to resolve the objections within
the 120 -day period. Cure of the defects by Seller shall be reasonable, diligent
and prompt. Pending correction of title, all payments required herein and the
closing shall be postponed if the Buyer requests the same in writing. —
(A) If notice is given and Seller remedies the objections, then upon
presentation to Buyer and proposed lender of documentation of
resolution, and if not objected to in the same time and manner as
the original title objections, the closing shall take place on the
mutually agreed to scheduled closing date.
(B) If notice is given and Seller proceeds in good faith to remedy the
issues but the 120 -day period expires without the exceptions being
addressed, Buyer may declare this Agreement null and void by
notice to Seller; neither party shall be liable for damages hereunder
to the other and earnest money shall be refunded to Buyer. If
Seller proceeded in good faith, Buyer shall not be entitled to both
proceed to closing and to require Seller to resolve the objections or
to seek damages from Seller.
If Seller does not give notice of intention to resolve the objections, or if notice is
given but the 120 -day period expires without resolving the objections due to
Seller's failure to proceed in good faith, Buyer may proceed to closing without
waiver or merger in the deed of the objections to title and without waiver of any
remedies, and may require the Seller to complete the remedy of the objection or
the Buyer may rescind this Purchase Agreement by notice as provided herein,
in which case the Purchase Agreement shall be null and void and all earnest
money paid hereunder shall be refunded to Buyer.
(C) If the objections are not resolved as provided herein and Buyer
defaults in any of the agreements herein, Seller's sole and
exclusive remedy is to cancel this Purchase Agreement as provided
by law and retained all earnest money as liquidated damages.
Seller waives any and all other claims and causes of action against
Buyer.
If title objections are resolved and Seller defaults in any of
the agreements herein, Buyer shall be returned the earnest
money as its sole remedy.
14. NOTICES. All notices required herein shall be in writing and delivered
personally or mailed to the address as shown above and if mailed, are effective
as of the date of mailing.
15. SUBDIVISON OF LAND. If this sale constitutes or requires a subdivision
or combination of land by Buyer, Buyer shall pay all subdivision/ platting or
combination expenses and obtain all necessary governmental approvals. Seller
warrants that the legal description of the real property to be conveyed has been
provided to the Seller for confirmation and verification. The Buyer is seeking to
assemble lands and agrees that it will pay all costs associated with the
assemblage of the properties, including but not limited to survey costs, platting
costing, legal fees, application fees, etc.
16. MINNEOCTA LAW. This Agreement shall be governed by the laws of the
State of Minnesota.
17. REPRESENTATION. Kennedy and Graven is representing the Buyer in
the preparation of this Agreement and the closing hereunder. Seller is
represented by the Sherburne County Attorney's Office.
18. RESERVED RIGHTS. The following language shall be included in the
Deed conveying the Real Property in this transaction:
(A) Seller retains for the State of Minnesota all mineral rights in the
land.
(B) The conveyance is subject to any existing utility and road
easements of record or in existence.
(C) As set forth in Section 8, Buyer is responsible for addressing any
ingress/egress crossing of the lands by adjoining landowners and
indemnifying and holding the Seller harmless from the same.
19. CONTINGIEIh7CHES.
(A) This purchase agreement is contingent upon the Buyer purchasing
the lands described in paragraph 10 above. It is subject to the
further contingency that the Buyer will obtain by march 1, 2017
all necessary approvals, architectural reviews, licenses, zoning,
subdivision, conditional use permits, interim use permits,
variances, building permits for the bill board, environmental
permits/ approvals and all other necessary permits or approvals for
the development of the property all at no cost to the Seller. Buyer
shall promptly act to obtain such necessary permits and approvals
and the Seller shall assist in the application process so far as the
consent of the Seller is required.
(B) This agreement is further contingent upon the Buyer making a
determination that the proposed development can be constructed
on the property without the use of piling, extraordinary filling or
similar extraordinary land preparation steps which would make it
financially impractical for the Buyer's intended use. If the Buyer is —
unable to ensure this, the Buyer may seek nullification of this
agreement and return of its earnest monies. There will be no
further obligations on the part of either party.
(C) This agreement is contingent upon the availability of sufficient
utilities in the vicinity of the project. The Buyer shall notify the
Seller within 180 days of entry into this Purchase Agreement if the
utilities are insufficient. If the utilities are insufficient, the Buyer
shall notify the Seller who in turn will return any monies in escrow
and the purchase agreement shall become null and void. There
will be no further obligations on the part of either party.
20. CLOSING COSTS.
The Seller will pay a maximum amount of $500.00 for closing costs. All
other costs shall be borne by the Buyer. The Seller shall not pay for any
realtor's fees. The Seller's maximum amount for closing costs will
include any cost for title insurance, recording fees, document
preparation costs, transmittal fees, name searches, well disclosure form
filing, and any other costs associated with the closing. Each party shall
pay its own attorney's fees.
Seller agrees to sell the property
for the price and terms and
conditions set forth above.
Dated:
Buyer agrees to purchase the property
for the price and conditions
set forth above.
Dated:
Seller
Seller
Buyer
Buyer