4.14 SR 11-07-2022 ADD ON
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional
service, and community engagement that encourages and inspires prosperity. Updated: August 2020
Request for Action
To
Mayor and City Council
Item Number
4.14
Agenda Section
Consent
Meeting Date
November 7, 2022
Prepared by
Zack Carlton, Community Development Director
Item Description
Purchase Agreement: RAN Properties, Natures
Edge Business Center Third Addition
Reviewed by
Cal Portner, City Administrator
Reviewed by
Action Requested
Adopt, by motion, a resolution approving the purchase agreement between the City of Elk River and RAN
Properties (GATR) for 6.86 acres of city owned property in Natures Edge Business Center Third Addition
Background/Discussion
The city and the applicant have been working to finalize the purchase agreement for the planned expansion of
GATR Truck Center. The purchase agreement outlines the dates and expectations for both parties. The final
agreed upon price is $2.25/SF.
Financial Impact
The city is selling developable industrial land and a fair market price.
Mission/Policy/Goal
Support the growth and development of the business community.
Attachments
Purchase Agreement
Resolution
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REAL ESTATE PURCHASE AGREEMENT
THIS AGREEMENT (“Agreement”), dated as of the ____ day of _______, 2022 (the
“Effective Date”), by and between CITY OF ELK RIVER, a Minnesota municipal corporation
(“Seller”) and the RAN PROPERTIES, L.L.C., a Minnesota limited liability company
(“Purchaser”).
WHEREAS, the Seller is the owner of real property in the City of Elk River, Sherburne
County, Minnesota, legally described as Outlot B, Nature’s Edge Business Center Third Addition,
according to the recorded plat, Sherburne County, Minnesota (PID 75-915-0020) (“Seller
Property”);
WHEREAS, the Purchaser owns a parcel of real property in the City of Elk River,
Sherburne County, Minnesota that is adjacent to the Seller Property (PID 75-828-0150) (the
“Purchaser Property”)
WHEREAS, the Purchaser desires to acquire approximately 6.875 acres of the Seller
Property as depicted on the attached Exhibit “A” (the “Property”) and the Seller will retain the
portion of the Seller Property less the Property (the “Retained Property”);
NOW, THEREFORE, the Purchaser and Seller agree as follows:
1. PROPERTY. In consideration of the mutual promises, covenants, and agreements
hereinafter contained, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to buy
the Property upon the terms and conditions hereinafter set forth. The Property shall include: (i) all
improvements thereon (the “Improvements”), if any; (ii) all easements, rights-of-way and
entitlements relating or appertaining to the Property and/or to the Improvements; (iii) all sewer,
septic and waste disposal rights and interests applicable or appurtenant to or used in connection
with the operation of the Property or the Improvements; (iv) all mineral rights, air rights and
development credits or rights; and (v) all interest in streets, roads, alleys or other public ways
adjoining or serving the Property, including any land lying in the bed of any street, road, alley or
other public way, open or proposed, and any strips, gaps, gores, culverts and rights-of way
adjoining or serving the foregoing Property or Improvements
2. PURCHASE PRICE AND MANNER OF PAYMENT. Except as otherwise
provided herein, the purchase price (“Purchase Price”) for the Property shall be payable to Seller
at Closing (as hereinafter defined) in the amount of Two Dollars and 25/100 ($2.25) per square
foot, based on and as determined by an ALTA survey of the Property. The Purchase Price shall be
paid by Purchaser to Seller as follows:
(a) The sum of Ten Thousand and 00/100 Dollars ($10,000.00) earnest money (the
“Deposit”), shall be deposited with the Title Company (as hereafter defined) within five (5)
business days of execution of this Agreement by both parties. The Deposit shall be held in escrow
by the Title Company in a non-interest bearing account and shall be disbursed in accordance with
the terms of this Agreement.
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(b) The remaining balance of the Purchase Price, subject to closing adjustments and
pro-rations and after crediting the Deposit, shall be paid by wire transfer of immediately available
funds at the Closing to an account designated by Seller.
3. DEPOSIT. If Closing is completed as provided in this Agreement, the Deposit
shall be credited to the balance of the Purchase Price at Closing. If Purchaser defaults under this
Agreement and fails or refuses to close the sale as provided in this Agreement or if Purchaser
terminates this Agreement at any time following the expiration of the Due Diligence Period, then
Seller may retain the Deposit as liquidated damages for Purchaser’s failure to close this sale in
accordance with the terms of this Agreement. If Purchaser timely terminates this Agreement
pursuant to a valid right to do so as set forth herein, then the Deposit shall be refunded to Purchaser.
4. BROKERS’ FEES. Except for Purchaser’s brokers, Annie Deckert of Acuity
Group, each party warrants that it has not dealt with any broker or other person in connection with
the sale of the Property in any manner that could give rise to a claim for commission or similar
fee. Purchaser’s broker fees shall be paid by Purchaser. Except as otherwise provided under this
Paragraph, each party agrees to indemnify and hold the other harmless against and from all claims
for real estate commissions and other fees with respect to the procurement and closing of this
Agreement made by any person with whom they have dealt other than as provided herein.
5. DUE DILIGENCE PERIOD.
(a) Except as otherwise extended pursuant to the terms of this Agreement, Purchaser
shall have until 5:00 P.M. (C.S.T. ) on January 31, 2023 (“Due Diligence Period”) within which
to perform any and all studies or inspections it deems necessary or desirable on the Property,
including without limitation, any environmental or geotechnical studies, to secure all governmental
approvals necessary for Purchaser’s intended use, including subdivision of the Property, to obtain
financing approval for the acquisition of the Property. If Purchaser determines, in its sole and
unfettered discretion, that the Property is not suitable for Purchaser, then Purchaser may terminate
this Agreement, upon written notice to Seller on or before the expiration of the Due Diligence
Period and receive a full refund of the Deposit. Except as otherwise provided under Paragraphs 3,
7, 8, 10, 11 and 19 of this Agreement, Purchaser shall have no right to terminate this Agreement
after the Due Diligence Period for matters required to be addressed during the Due Diligence
Period. If Purchaser shall fail to timely notify Seller in writing of its election to terminate this
Agreement on or before the expiration of the Due Diligence Period, time being of the essence, the
termination right described in this Paragraph 5(a) shall be immediately null and void and of no
further force or effect and Purchaser shall be deemed to have accepted the financial and physical
condition of the Property and the Deposit shall be deemed non-refundable except in the event of
either (i) a Seller’s default hereunder; or (ii) the failure of a pre-closing contingency specified in
Section 10 or 11 below. Purchaser’s failure to provide such notice on or before the end of the Due
Diligence Period shall constitute Purchaser’s waiver of the herein-described termination right.
(b) During the Due Diligence Period, Purchaser shall have the right, at Purchaser’s
expense, to select licensed engineers, contractors, and/or other qualified professionals to make
inspections concerning the Property, including but not limited to tests of soils, geologic hazards,
utility lines and systems, and possible environmental hazards. The transaction contemplated
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herein is contingent upon Purchaser’s full, complete and sole satisfaction of its review of the
foregoing.
(c) Any time prior to Closing, Purchaser or its authorized agents shall have the right to
enter upon the Seller Property for any lawful purpose, including without limitation performing the
tests and inspections Purchaser deems reasonably necessary to satisfy its due diligence
requirements and to erect such signs as Purchaser may deem necessary, except signs identifying
any contractor that will assist Purchaser. Purchaser agrees to restore any resulting damage to the
Seller Property and to indemnify, hold harmless and defend Seller from any and all claims by third
persons of any nature whatsoever arising from Purchaser’s right of entry hereunder, including all
actions, proceedings, demands, assessments, costs, damages, expenses and attorneys' fees.
Purchaser’s obligation under this paragraph shall survive delivery of the deed at Closing for a
period of two (2) years.
(d) Within five (5) business days after the Effective Date (the “Delivery Deadline”),
Seller will deliver complete and accurate copies of all of the Documents (as set forth on
Exhibit “B”) for Purchaser’s examination and analysis. Seller has the continuing obligation to
provide Purchaser with any Document that comes into Seller’s possession or control or is entered
into by Seller after the initial delivery of the Documents.
(e) Purchaser agrees to indemnify, defend and hold Seller, its partners, officers,
directors, employees, agents, attorneys and their respective successors and assigns, harmless from
and against all claims, demands, suits, obligations, payments, damages, losses, penalties,
liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from
the Purchaser’s or its agents’ actions taken in, on or about the Property in the exercise of the
inspection right granted pursuant to Paragraph 5. This Paragraph 5(d) shall survive the delivery
of the Deed at Closing and/or any termination of this Agreement for a period of two (2) years.
6. TITLE TO BE DELIVERED. Seller shall deliver to Purchaser, or cause to be
delivered to Purchaser, at Closing, an executed Quit Claim Deed (“Deed”) in recordable form
conveying fee simple title to the Property subject to the terms of this Agreement and:
(a) Reservations of minerals or mineral rights by the State of Minnesota;
(b) Building, zoning and subdivision laws and regulations consistent with the current
use of the Property;
(c) The lien of real estate taxes and installments of special assessments which are
payable by Purchaser pursuant to the terms of this Agreement;
(d) Applicable laws, regulations, zoning regulations and ordinances, whether federal,
state or local; and
(e) Exceptions to title which constitute encumbrances, declarations, restrictions, or
easements which have Purchaser has not objected to as provided under Paragraph
7 of this Agreement.
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(hereinafter collectively “Permitted Encumbrances”).
7. EVIDENCE OF TITLE.
(a) Within twenty (15) days after the execution of this Agreement by the parties, Seller
shall deliver to Purchaser at Seller’s expense, a title insurance commitment (“Commitment”)
written by Land Title Inc. (“Title Company”), for a current ALTA Owner’s title insurance policy
in an amount equal to the Purchase Price, which shall commit to insure good and marketable fee
simple title to the Property in Purchaser upon Closing. The Commitment shall include proper
searches covering bankruptcies, state and federal judgments and liens and levied and pending
special assessments, which Commitment shall be issued with the following commitments:
(1) Insures that at Closing Purchaser shall have marketable and insurable title of record
to the Property, free and clear of all liens, encumbrances, leases, claims and
charges, all material easements, rights-of-way, covenants, conditions and
restrictions and any other matters affecting title, and deleting all exceptions, except
for Permitted Encumbrances.
(2) Waives or insures against all standard exceptions.
(b) Prior to the expiration of the Due Diligence Period as further defined below,
Purchaser shall engage a surveyor to prepare an ALTA survey of the Seller Property (the
“Survey”) and provide the legal description of the Property to be conveyed by Seller at Closing.
The Property shall be in materially the dimensions depicted in Exhibit “A”. The Survey may
include the Purchaser Property as well, if Purchaser so elects.
(c) Purchaser shall have ten (10) business days following receipt of the second of the
Commitment and the Survey within which to deliver to Seller a notice setting forth any objections
to title (“Objections”); otherwise, Purchaser shall be conclusively presumed to have approved the
title to the Property. Notwithstanding the foregoing, Purchaser shall automatically be deemed to
have objected to and Seller shall be obligated to cure and release at or prior to Closing any: (i)
mortgage financing, security agreements or similar liens given for security or collateral purposes
(except as may arise from or relate to Purchaser’s diligence activities), expressly including all
recorded loan facility documents, (ii) state, federal or local tax liens or liens for the nonpayment
of special assessments against the Property, and (iii) other judgment liens or non-consensual liens
pertaining to Seller (collectively, “Liens”). If Seller has not removed all Liens by Closing, then
any remaining Liens will be cured and satisfied out of Seller’s proceeds at Closing.
(d) Seller shall, within ten (10) days of receipt of Purchaser’s written Objections, notify
Purchaser in writing of its intent to cure Objections prior to the end of the Due Diligence Period
and shall use reasonable efforts to cure the Objections Seller has elected to (or is required to) cure.
Pending cure of Purchaser’s Objections and in the event Seller shall notify Purchaser in writing
prior to the expiration of the Due Diligence Period of the need for additional time to cure
Objections, the Seller shall have up to an additional sixty (60) days, if necessary; to cure
Objections; provided, however, that Seller shall pursue cure of Objections in a diligent manner.
Upon failure of Seller to provide notice of intention to cure Objections, or if notice is furnished
but (i) the Due Diligence Period expires; or (ii) the extended Due Diligence Period expires, in
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either case without Objections being cured within the allowable periods, Purchaser may, at its sole
election, do any of the following:
(1) Termination. Terminate this Agreement without any liability on its part. The
Deposit shall be refunded to Purchaser, and neither party shall have any further
rights or obligations hereunder other than those rights and/or obligations which are
expressly stated to survive expiration or termination of this Agreement.
(2) Waiver. Waive such objections and take title to the Property subject to such
objections.
8. REPRESENTATIONS OF SELLER. Seller as part of the consideration
therefore, represents, warrants, and covenants with Purchaser and its successors and assigns that:
(a) That Seller has the requisite power and authority to enter into this Purchase
Agreement and the closing documents relating thereto to be signed by it; that the execution,
delivery and performance by Seller of such documents do not conflict with or result in violation
of any judgment, order or decree of any court to which Seller is a party; such documents are valid
and binding obligations of Seller.
(b) There are no existing claims, actions, suits or other proceedings pending, or to the
knowledge of Seller, threatened by any governmental department or agency, or any other
corporation, partnership or entity or person whomsoever against Seller or the Seller Property,
which in any manner or to any extent may detrimentally affect the Property or Purchaser’s right,
title or interest in and to any part or all of the Property after Closing. Furthermore, Seller has not
received any notice of any pending condemnation, eminent domain or other similar action, suit or
proceeding that would affect the Seller Property.
(c) Other than Seller there are no other tenants or occupants of the Property and Seller
has not entered into any other contracts, agreements or understandings, whether oral or written,
for the sale of all or any portion of the Seller Property, and there are no existing rights of first
refusal or options to purchase all or any portion of the Seller Property, or any other rights of others
that might prevent the consummation of this Agreement.
(d) On the Closing Date there will be no (i) outstanding leases or occupancy
agreements, or (ii) outstanding contracts made by Seller for any improvements to the Seller
Property which have not been fully paid for or for which Seller shall not have made arrangements
to pay off, at Closing, or that will affect the Seller Property or be binding upon Purchaser or upon
the Property subsequent to Closing without Purchaser’s written consent; and Seller shall cause to
be discharged all mechanic’s or materialmen’s liens arising from any labor or materials furnished
to the Seller Property that were made at the request of Seller, its agents, or contractors, prior to the
Closing Date and any mortgages or other such similar encumbrances.
(e) Seller has not received any notice of any actual or proposed special assessments or
reassessments of the Property.
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(f) Seller is not a foreign person; as such term is defined in Section 1445(f) (3) of the
Internal Revenue Code of 1986, as amended, and shall deliver an affidavit to that effect at closing,
which shall be in form and substance reasonably acceptable to Purchaser.
(g) To the best of Seller’s knowledge:
(1) no Hazardous Substance (as defined below) has been generated, treated,
stored, released, or disposed of, or otherwise placed, deposited in, or located
on the Property or has migrated onto the Property from nearby or adjacent
real property; or
(2) no entity or person has, at any time taken any action in "response" to a
"release" in connection with the Property or adjacent tracts; or
(3) no entity or person has, at any time otherwise engaged in any activity or
omitted to take any action which could subject Seller or Purchaser to claims
for intentional or negligent torts, strict or absolute liability, either pursuant
to statute or common law, in connection with Hazardous Substances (as
defined below) located in or on the Property or adjacent tracts, including the
generating, transporting, treating, storage, or manufacture of any Hazardous
Substance (as defined below) in violation of applicable law. The terms set
within quotation marks above means any substance, whether waste, liquid,
gaseous or solid matter that is or is deemed to be hazardous, hazardous
waste, toxic, pollutant, a deleterious substance, a contaminant or a source
of pollution or contamination under any applicable environmental law,
including the Comprehensive Environmental Response and Liability Act,
42 U.S.C. Sec. 9601 et seq., as amended ("CERCLA") and any state
environmental laws.
(h) To Seller’s knowledge, the conveyance of the Property pursuant hereto will not
violate any currently existing applicable statute, ordinance, governmental restriction or regulation,
or any private restriction or agreement to which Seller is a party.
(i) To the best of Seller’s knowledge, there are no above ground or underground
storage tanks or wells on the Property, it being understood that the representation as to wells shall
be recited in the Deed to be delivered by Seller at Closing.
(j) To the best of Seller’s knowledge, Seller represents that methamphetamine
production has not occurred on the Property.
(k) Solely for purposes of satisfying the requirements of Minn. Stat. § 115.55, Seller
certifies that, to the best of Seller’s knowledge, there is no “individual sewage treatment system”
(within the meaning of that statute) on or serving the Property.
(l) Sellers represent to the best of Seller’s knowledge that the property does not have
any American Indian burial grounds, other human burial grounds, ceremonial earthworks,
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historical materials, and/or other archeological sites that are protected by federal or state law.
Purchaser’s obligation to close is contingent upon Purchaser determining to Purchaser’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.
(m) Seller does not have actual knowledge of any material inaccuracies in the
Documents, except as has been disclosed to Purchaser in writing prior to the Delivery Deadline.
The copies of all Documents furnished by Seller hereunder are true, accurate and complete.
All of Seller’s covenants, representations and warranties in this Purchase Agreement shall be true
as of the date hereof and of the Closing Date. If Purchaser discovers that any such covenant,
representation, or warranty is not true, Purchaser may elect prior to Closing, in addition to any of
its other rights and remedies, to cancel this Agreement and have the Deposit refunded to Purchaser,
or Purchaser may by written notice and in Purchaser’s sole discretion, postpone the Closing Date
up to ninety (90) days to allow time for correction. If Purchaser elects to proceed with the Closing
following such discovery, Purchaser shall be deemed to have waived its rights to assert a claim
against Sellers arising from the inaccuracy or untruthfulness of any such covenant, representation,
or warranty. If Purchaser first discovers a breach of any representation or warranty after the
Closing Date, but within two (2) years thereafter, then Purchaser shall be entitled to any remedy
at law or equity, notwithstanding any provision of Section 19 to the contrary.
9. ENVIRONMENTAL INSPECTIONS. Purchaser shall have the right to perform
a Phase I Environmental Site Assessment (the “Phase I”) by a provider of its choice and, if the
Phase I identifies any Recognized Environmental Conditions (the “RECs”), then Purchaser shall
be entitled to perform so called Phase II testing to the extent Purchaser determines is necessary to:
(i) investigate and quantify potential environmental harms and remediation costs arising from the
RECS; and (ii) obtain any applicable liability assurances with respect to the RECs or as to other
environmental conditions discovered by Purchaser in its due diligence.
10. PURCHASER’S CONTINGENCIES. In addition to the due diligence provisions
set forth in Section 5 above, the obligations of Purchaser under this Agreement are expressly
contingent upon the following:
(a) Each of the following statements being true and correct. Since the Effective Date,
there has/have been no: (A) detrimental changes to the physical (including
environmental) condition of the Property; (B) further encumbrances placed upon
title to the Property or other detrimental changes to title to the Property; (C) actions,
facts, circumstances, negligence, or misconduct which would make any of Seller’s
representations or warranties untrue in any material fashion; nor (D) defaults by
Seller, beyond applicable notice and cure periods; and
(b) Title to the Property shall be held by Seller on the Closing Date, and shall be free
and clear of all encumbrances except the Permitted Encumbrances.
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If the contingencies set forth herein have not been satisfied or waived by Purchaser by the dates
specified, this Agreement shall be null and void and neither party shall have any further obligations
hereunder, except that the Deposit shall be refunded to Purchaser. The contingencies set forth in
this Paragraph are for the sole and exclusive benefit of Purchaser, and Purchaser shall have the
right to waive the contingencies by giving notice to Seller, provided Purchaser abides by the time
requirements set forth above.
11. PLATTING.
(a) The parties shall work together in good faith to agree to the dimensions and legal
descriptions of the Property and the Retained Property promptly after completion
of the Survey. Thereafter, Purchaser shall use its commercially reasonable efforts
to plat the Seller Property in a manner reasonably acceptable to Purchaser and
Seller, provided that such plat (the “Plat”) shall create the Property and the
Retained Property as outlots. Seller shall reasonably cooperate, at no out of pocket
cost to Seller, to assist Purchaser in creating the Plat and in granting any easements
or other entitlements and encumbrances as may be reasonably required by the
applicable governmental authorities. Purchaser shall be responsible for the cost of
the Survey and of creating and obtaining approvals for the Plat.
(b) The obligations of both parties under this Agreement are expressly contingent upon
Purchaser obtaining all necessary approvals for the Plat, in a form reasonably
acceptable to both parties, and recording the Plat at Closing. The contingency set
forth in this Paragraph is for the mutual benefit of both parties, and either party
shall have the right to terminate this Agreement pursuant to this contingency by
giving written notice to the other on or before the Closing Date. Failure to terminate
this Agreement pursuant to this Paragraph shall be deemed to be waiver thereof. If
this Agreement is terminated pursuant to this Paragraph, then Purchaser shall be
entitled to a refund of the Deposit.
12. CLOSING. The closing hereof (the “Closing”) shall take place on the earlier of (i)
the tenth (10th) business day after Purchaser waives the Due Diligence Period; or (ii) Februrary 14,
2023 (the “Outside Closing Date” with the date that the transaction actually closes, the “Closing
Date”). The Closing shall take place at the offices of the Title Company as an escrow closing,
unless otherwise agreed by the parties in writing. At Closing, Seller and Purchaser shall disclose
their Social Security Numbers or Federal Tax Identification Numbers for the purpose of
completing state and federal tax forms.
13. SELLER’S OBLIGATIONS AT CLOSING. On the Closing Date, Seller shall
deliver possession of the Property to Purchaser in substantially the condition that it is in on the
Effective Date. Seller shall execute and/or deliver to Purchaser the following (collectively the
"Closing Documents"):
(a) Quit Claim Deed. A Quit Claim Deed in recordable form and reasonably
satisfactory to Purchaser, which shall include the following well representations: “Seller certifies
that the Seller does not know of any wells on the described Property.”
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(b) Seller’s Affidavit. A standard form affidavit 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 not been made or for which mechanic's liens could be filed; and
that there are no other unrecorded interests in the Property.
(c) Non-Foreign Person Certification. A certification in form and content
satisfactory to the parties hereto and their counsel, properly executed by Seller, containing such
information as shall be required by the Internal Revenue Code, and the regulations issued
thereunder, in order to establish that Sellers are not a “foreign person” as defined in §1445(f)(3)
of such Code and such regulations.
(d) Storage Tanks. If required, an affidavit with respect to storage tanks pursuant to
Minn. Stat. § 116.48.
(e) Well Certificate. If there is a well located on the Property, a well disclosure
certificate in form and substance true to form for recording.
(f) Certification. A certification that the representations and/or warranties made by
Seller are materially the same as were in existence on the date of this Purchase Agreement except
to the extent that the representations are no longer true and acceptable to Purchaser.
(g) Authorization. A current resolution of Seller’s governing body, authorizing the
transaction contemplated by this Agreement and the execution and delivery of Seller’s Closing
Documents
(h) Other Documents. All other documents reasonably determined by either party
and the title insurance company to be necessary to transfer and provide title insurance for the
Property.
14. PURCHASER’S OBLIGATIONS AT CLOSING. At Closing and subject to the
terms, conditions, and provisions hereof and the performance by Seller of its obligations as set
forth above, Purchaser shall:
(a) Purchase Price. Deliver to Seller cash or the balance of the Purchase Price, less
any adjustments.
(b) Plat. The final Plat mylars and all necessary documents required to record the Plat.
(c) Other Documents. Execute and/or deliver to Seller such other documents as may
be required by this Agreement or as may be reasonably required by Title Company.
15. CLOSING COSTS. The following costs and expenses shall be paid as follows in
connection with the Closing:
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(a) Seller shall pay:
(1) The cost of issuance of the commitment for the title policy;
(2) One-half the closing fee charged by Title Company for the Closing between
Seller and Purchaser;
(3) State Deed Tax;
(4) Seller’s attorneys’ fees; and
(5) Those other closing costs allocated to Sellers by local custom and practice.
(b) Purchaser shall pay the following costs in connection with the Closing:
(1) Premium for Purchaser’s owner’s title insurance policy, any lender’s title
insurance policy and any endorsements to either;
(2) Purchaser’s attorneys’ fees;
(3) One-half the closing fee charged by Title Company for the Closing between
Seller and Purchaser;
(4) The fees of the Purchaser’s due diligence providers, the Survey and of
engineers or other consultants, if any, engaged by Purchaser regarding the
Property and the Plat, except as otherwise set forth herein; and
(5) Those other closing costs allocated to Purchasers by local custom and
practice
16. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS.
(a) Prior Years’ Delinquent Real Estate Taxes and Delinquent Special Assessments.
Delinquent real estate taxes payable in years prior to the year of Closing and delinquent
installments of special assessments certified for collection with real estate taxes payable in years
prior to the year of Closing, together with penalty, interest and costs, shall be paid by Seller not
later than the Closing Date.
(b) Real Estate Taxes Payable in the Year of Closing. Seller and Purchaser shall
prorate all general real estate taxes due and payable on or pertaining to the Property in the year in
which the Closing Date occurs on a per diem basis. If the Property is a portion of one tax parcel,
the prorated taxes payable herein shall be determined on a proportionate square footage basis.
Seller shall pay on or before the Closing Date all levied special assessments associated with the
Property as of the date of this Purchase Agreement. Purchaser shall assume and pay any
assessment pending as of the date of this Purchase Agreement, and all other assessments. Seller
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shall pay penalty, interest and costs on any delinquent installment of taxes and special assessments
payable in the year of Closing.
(c) Certified Special Assessments. All installments of special assessments certified for
payment with the real estate taxes payable on the Property in the year of Closing shall be prorated
to the Closing Date.
(d) All Other Levied Special Assessments. Seller shall pay on the Closing Date all
other special assessments levied against the Property as of the date of this Purchase Agreement.
17. SELLER’S BOUNDARY LINE, ACCESS, RESTRICTIONS AND LIEN
WARRANTIES. Seller warrants that buildings on adjoining real property, if any, are entirely
outside of the boundary lines of the Property. Seller warrants that there has been no labor or
material furnished to the Property for which payment has not been made. Seller warrants that there
are no present violations of any restrictions relating to the use or improvement of the Property.
These warranties shall survive the delivery of the Deed.
18. COVENANTS. During the period from the Effective Date through and until the
Closing Date, Seller shall: (i) cause the Seller Property to be operated, managed and maintained in
a manner consistent with the practice of Seller prior to the Effective Date; (ii) maintain adequate
liability insurance; (iii) not sell, lease, assign, transfer or encumber the Seller Property or any
interest therein and shall not enter into any agreement in connection therewith; (iv) not grant,
create, enter into or consent to any lien, encumbrance, agreement, contract, lease, easement or
other obligation of any type or character regarding the Property which will survive the Closing
without Purchaser’s prior written consent (in Purchaser’s sole discretion), (v) not enter into or
amend any contract or agreement affecting the Property that will be binding upon Purchaser or the
Property after the Closing without Purchaser’s prior, written consent (in Purchaser’s sole
discretion), (vi) cooperate in good faith with Purchaser and assist Purchaser in obtaining any
governmental approvals or entitlements for the Purchaser, provided that such cooperation shall be
at no material cost to Seller, (vii) promptly execute and return to Purchaser any applications and
other documentation reasonably necessary to obtain any governmental approvals and/or
entitlements (subject to Seller’s reasonably review and approval, at no material expense to Seller),
(viii) ensure that all materials provided to and labor performed at the Property at Seller’s request
have been paid for prior to Closing; and (ix) promptly give written notice to Purchaser upon Seller
obtaining knowledge of any of Seller’s representations or warranties in this Agreement becoming
untrue or inaccurate.
19. REMEDIES.
(a) If Purchaser defaults in its obligation to proceed to the Closing in accordance with
the terms of this Agreement and fails to cure such default within ten (10) days after being notified
in writing thereof, Seller shall be entitled, as its sole and exclusive remedy, to terminate this
Agreement and to retain the Deposit. Seller shall not have the right to recover any other damages
of any kind from Purchaser or to obtain other equitable adjustment to the terms of the sale of the
Property.
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(b) If Seller defaults on any of its material obligations under this Agreement and fails
to cure such default within ten (10) days after receiving written notice thereof, Purchaser shall be
entitled as its sole remedy to terminate this Agreement and the immediate return of the Deposit.
Purchaser shall not have the right to recover any other damages of any kind from Seller or to obtain
other equitable adjustment to the terms of the sale of the Property.
20. “AS IS” PURCHASE. Except as set forth in this Purchase Agreement or any
document contemplated hereby, (i) the Property is being sold, conveyed, assigned, transferred and
delivered “as is, where is,” on the date hereof, and in its condition on the date hereof, “with all
faults,” and Seller is not making, and expressly disclaims, any other representation or warranties
written or oral, statutory, express or implied, concerning the Property, including but not limited to,
representations or warranties relating to value or quality of the Property or with respect to this
Purchase Agreement or the transactions contemplated hereby or thereby, and (ii) Seller specifically
disclaims any representation or warranty of merchantability, usage, suitability or fitness for any
particular purpose with respect to the Property or any part thereof, or as to the workmanship
thereof, or the absence of any defects therein, whether latent or patent.
21. PURCHASER ACKNOWLEDGEMENT. Purchaser acknowledges that any
future use of the Property may require a replat as a lot and block for future use of the Property.
22. MISCELLANEOUS. The following general provisions govern this Agreement:
(a) Time is of the Essence. The Closing Date, as the same may be extended pursuant
to the terms of this Agreement, is of the absolute essence.
(b) Governing Law. This Agreement is made and executed under and in all respects is
to be governed and construed under the laws of the State of Minnesota.
(c) Notices. Any notice required to be given to Seller or Purchaser pursuant to this
Agreement is given in accordance with this Agreement if it is in writing signed by the party or its
counsel identified below, and shall be served (as an alternative to personal service) and if it is
directed to Seller by delivering it personally to an officer of Seller, or if it is directed to Purchaser,
by delivering it personally to the City Manager of Purchaser, or if deposited cost paid with a
nationally recognized reputable overnight courier for overnight delivery or by email transmission
(followed promptly by personal service or overnight courier service of a hard copy), property
addressed as follows:
Seller: City of Elk River
13065 Orono Parkway
Elk River, MN 55330
Attention: Calvin Portner
Email: CPortner@ElkRiverMN.gov
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With a copy to: Andrea McDowell Poehler
Campbell Knutson, P.A.
Grand Oak Office Center I
860 Blue Gentian Road, Suite 290
Eagan, MN 55121
Email: apoehler@ck-law.com
Purchaser: RAN Properties, LLC
218 Stearns Drive
Sauk Rapids, MN 56379
Attn: Robert Neitzke
Email: bneitzke@gatr.net
With a copy to: Lathrop GPM, LLP
500 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Attn: Brad Hintze
Email: bradley.hintze@lathropgpm.com
Notices shall 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, the time for response to any notice
by the other party shall 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.
(d) Survival. Except as expressly set forth herein, no warranties, representations,
covenants, obligations or other agreements contained in this Agreement shall survive the Closing.
(e) Amendment. This Agreement shall be amended only by a written instrument
signed by Seller and Purchaser.
(f) Assignment. Neither Seller nor Purchaser shall assign this Agreement or its rights
hereunder without the express written consent of the other, which may be withheld by the other in
its sole discretion.
(g) Benefit. This Agreement shall be binding upon and inure to the benefit of Seller
and Purchaser and their respective successors and assigns
(h) Entire Agreement. This Agreement (including all exhibits hereto) contains the
entire agreement of the parties. It may not be changed orally but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
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(i) Severability. If any provision of this Agreement is held to be unenforceable or
void, such provision shall be deemed to be severable and shall in no way affect the validity of the
remaining terms of this Agreement.
(j) Construction. The captions and headings of the various Paragraphs of this
Agreement are for convenience only and are not to be construed as defining or as limiting in any
way the scope or intent of the provisions hereof. Wherever the context requires or permits, the
singular shall include the plural, the plural shall include singular, and the masculine, feminine and
neuter shall be freely interchangeable.
(k) Counterparts. For the convenience of the parties, any number of counterparts
hereof may be executed and each such executed counterpart shall be deemed an original, but all
such counterparts together shall constitute one in the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above, in multiple counterparts, each of which shall be deemed an original and
all of which shall evidence but one agreement.
[Remainder of Page Intentionally Left Blank]
[Signature Pages to Follow
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SELLER:
CITY OF ELK RIVER
BY:
John J. Dietz, Mayor
AND:_____________________________________
Tina Allard, City Clerk
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PURCHASER:
RAN PROPERTIES, L.L.C.
By:
Print Name:___________________
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EXHIBIT A
Depiction of Property
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EXHIBIT B
Due Diligence Documents
(1) Tests and Reports. All results of soil, water, oil, gas, mineral or other environmental tests,
Phase I Environmental Site Assessments or so-called Phase II reports, if any, which relate to the
Property. Additionally, all records in Seller’s possession or control relating to the use of
Hazardous Substances or spills or other discharges thereof upon the Property.
(2) Plans. All plats or other depictions relating to the Property and Improvements and copies
of all wetland analyses, planning studies, aerial photographs, topographical maps or studies,
engineering studies and plans and mylars that are in Seller’s possession or control.
(3) Governmental Materials. All Permits and all other governmental notices and
correspondence, special or conditional use permits, certificates of occupancy, variances and other
agreements with any governmental agency, relating to the Property, including, but not limited to
availability of utilities at the Property.
(4) Litigation. Any pleadings, documentation, or correspondence pertaining to threatened or
pending litigation related to the Property.
(5) Title. All title insurance policies, commitments, title exception documents and surveys.
(106 Contracts. All contracts that benefit or burden the Property where the term extends beyond
the anticipated Closing Date.
222902v1
Resolution 22-___
A Resolution Approving a Conveyance of Certain Property
to Ran Properties, L.L.C.
WHEREAS, the City of Elk River (“City”) desires to convey the certain property located in the
City to RAN Properties L.L.C. (“Buyer”) pursuant to the terms and legal descriptions provided in
the Real Estate Purchase Agreement (“Agreement”) attached hereto as Exhibit;
WHEREAS, the Planning Commission has reviewed the proposed conveyance and has
determined that it is consistent with the City’s comprehensive plan;
WHEREAS, the City finds that the conveyance to “Buyer” as provided in the Agreement is in the
public’s interest and furthers the aims and purposes of the City;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk River,
Minnesota, as follows: The Agreement is hereby approved and the Mayor, City Clerk and City
Administrator are hereby authorized to execute and deliver all necessary documents required under
the terms of the Agreement.
Passed and adopted this 7th day of November, 2022.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
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EXHIBIT A
REAL ESTATE PURCHASE AGREEMENT