6. HRSR 12-04-2006ITEM #6.
City of
Elk
River
MEMORANDUM
TO:
Housing & Redevelopment Authority
Catherine Mehelich, Director of Economic
Development%~~~
FROM:
DATE:
December 4, 2006
SUBJECT: Consider Resolution Approving Acquisition Properties Located
at 716 and 720 Main Street
Issue
The HRA is asked to consider final action for the acquisition of the properties located at 716
and 720 Main Street from Houlton Investment Company.
Attachments
* HRA Resolution
* Purchase Agreement
* Contract for Deed
* Redevelopment Plan for Downtown Elk River Redevelopment Project
Background
The following tasks and statutory process has been undertaken over the past several months
to enable the HRA to consider final action on the acquisition of these properties:
* June 26, 2006 HRA discusses purchase of properties and authorizes appraisal.
* Aug.-Sept. 2006 Staff negotiates purchase terms with seller based on HRA direction
and appraisal which supports offer of $720,000.
* October 2, 2006 HRA reviews draft purchase agreement terms and authorizes staff to
proceed with statutory process to enable the HRA to consider final
action at December 4`" meeting.
* November 1, 2006 HRA reviews and approves Redevelopment Plan for Downtown Elk
River Redevelopment Project.
* November 14, 2006 Planning Commission reviews and approves Redevelopment Plan for
Downtown Elk River Redevelopment Project.
* November 20, 2006 City Council holds public hearing and approves Redevelopment Plan
for Downtown Elk River Redevelopment Project.
S:\Downtown Revitalization\Memos\2006\Houlton Buildings\12 4 06 HRA Houlton building purchase.doc
CONTRACT FOR DEED Minnesota Uniform Conveyancing Blanks
Business Entity Seller Form No. 55-M (2000)
No delinquent taxes and transfer entered; Certificate of Real
Estate Value ( )filed ( )not required. Certificate of
Real Estate Value No.
(Date)
County Auditor
by:
Deputy
D
reserved for
THIS CONTRACT FOR DEED (the "Contract") is made on the above date by Houlton Investment Company, a corporation
under the laws of Minnesota ("Seller") and Housing and Redevelopment Authority in and for the City of Elk River ("Purchaser")
Seller and Purchaser agree to the following terms:
PROPERTY DESCRIPTION. Seller hereby sells, and Purchaser hereby buys, the real property legally described on Exhibit
A, together with all hereditaments and appurtenances belonging thereto (the "Property"). Unless otherwise specified, Seller
hereby delivers possession of the Property to Purchaser on the date hereof.
Seller check applicable box:
^ The Seller certifies that the Seller does not know of any wells on the described real property.
^ A well disclosure certificate accompanies this document.
^ I am familiar with the property described in thin instrument and I certify that the status and number of wells
on the described real property have not changed since the last previously filed well disclosure certificate.
2. TITLE. Seller warrants that title to the Property is, on the date of this Contract, subject only to the following exceptions:
(a) Reservation of minerals or mineral rights by the State of Minnesota, if any;
(b) Applicable laws, ordinances and regulations;
(c) The lien of real estate taxes and installments of special assessments which are payable by Purchaser pursuant to
paragraph 6 of this Contract; and
(d) The following liens or encumbrances: [to be completed with "Permitted Encumbrances" determined per
Section 10 of the Purchase Agreement]]
DELIVERY OF DEED AND EVIDENCE OF TITLE. Upon Purchaser's full performance of this Contract, Seller shall:
(a) Execute, acknowledge and deliver to Purchaser a Warranty Deed, in recordable form, conveying marketable title to
the Property to Purchaser, subject only to the following exceptions:
(i) Those exceptions referred to in paragraph 2(a), (b), (c) and (d)of this Contract; and
(ii) Liens, encumbrances, adverse claims or other matters which Purchaser has created, suffered or permitted to
accrue after the date of this Contract.
4. PURCHASE PRICE. Purchaser shall pay to Seller the sum of Seven Hundred Twenty Thousand and No/100 Dollars
($720,000), as and for the purchase price (the "Purchase Price") for the Property, payable as follows:
(a) $216,000.00 contemporaneously with execution of this Contract, payable by wire transfer;
(b) The balance of the Purchase Price, in the amount of Five Hundred Four Thousand and No/100 Dollars
Analysis
Following is a summary of the Purchase Agreement and Contract for Deed with the seller,
Houlton Investment Company:
* Purchase Price: $720,000. Down payment of $216,000.
* Contract for Deed Terms: 5-year contract for deed at 6% interest, semi-annual
payments. Prepayment allowed without penalty.
* Closing date: December 22, 2006.
* Leases: HRA to assume the existing lease with O'Reilly Automotive at 720 Main
Street and the lease established with First National Financial Services at 716
Main Street.
* Condemnation and relocation axe specifically not being authorized.
* Provides for amendment of purchase agreement, if necessary, following receipt of
completed survey and title review.
* Rather than prorating rents and real estate taxes to the date of closing, the agreement
provides fox the sake of simplicity to make the proration date for rent and real estate taxes
1/1/07.
The proposed sources of funds for this acquisition include a portion of the HRA's existing
fund balance and future tax levies.
Recommendation
Staff recommends the HRA adopt the attached Resolution Authorizing the Execution of a
Purchase Agreement with Houlton Investment Company for the Purchase of 716 and 720
Main Street, Elk River, MN and the Purchase of the Property Pursuant to the Terms of Said
Purchase Agreement.
S:\Downtown Revitalization\Memos\2006\Houlton BuildingsU 2 4 06 HRA Houlton building purchase.doc
EXTRACT OF MINUTES OF MEETING
OF THE BOARD OF COMMISSIONERS OF THE HOUSING
AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF ELK RIVER,
MINNESOTA
HELD: December 4, 2006
Pursuant to due call and notice thereof, a meeting of the Board of Commissioners of the
Housing and Redevelopment Authority in and for the City of Elk River, Sherburne County,
Minnesota, was duly called and held at the City Hall in said City on Monday, the 4th day of
December, 2006, at 5 o'clock p.m.
The following commissioners were present:
and the following were absent:
Commissioner
adoption:
introduced the following resolution and moved its
RESOLUTION NO.
AUTHORIZING THE EXECUTION OF A
PURCHASE AGREEMENT WITH HOULTON
INVESTMENT COMPANY FOR THE PURCHASE
OF 716 AND 720 MAIN STREET, ELK RIVER, MINNESOTA AND THE PURCHASE OF
THE PROPERTY PURSUANT TO THE
TERMS OF SAID PURCHASE AGREEMENT
A. WHEREAS, Houlton Investment Company, a Minnesota corporation desires to
sell certain real property located in the City of Elk River and commonly referred to as 716 and
720 Main Street, Elk River, Minnesota (the "Property"); and
B. WHEREAS, on November 6, 2006 The Housing and Redevelopment Authority in
and for the City of Elk River (the "HRA") adopted a redevelopment plan (the "Redevelopment
Plan") that provides an outline for the development and redevelopment of the area in which the
Property is located; and
S:ADowntown Revitalization\Memos~2006\Houlton Buildings\Closing Documents\PCDOCS-#1970418-v2-Elk River_Res_Authorizing (3).DOC
C. WHEREAS, the City of Elk River's Planning Commission approved the
Redevelopment Plan on November 14, 2006 and the City Council of the City of Elk River,
following a public hearing and after making the necessary findings, approved the Redevelopment
Plan on November 20, 2006, all in accordance with the requirements of Minnesota Statutes,
Sections 469.027 and 469.028; and
D. WHEREAS, The HRA has determined that the acquisition of the Property is
necessary to carry out the redevelopment project described in the Redevelopment Plan; and
E. WHEREAS, the HRA's staff has negotiated a purchase agreement with Houlton
Investment Company, a copy of which has been presented to the Commissioners for their review
and consideration (the "Purchase Agreement"); and
F. WHEREAS, HRA staff is seeking the Board's approval of the Purchase
Agreement and authorization for the HRA's Chair and Executive Director to execute the
Purchase Agreement and authorization for the HRA's Chair and Executive Director to execute
the Contract for Deed and other documents contemplated in the Purchase Agreement or
otherwise necessary to close on the purchase of the Property pursuant to the terms of the
Purchase Agreement, upon Houlton Investment Company's and the HRA's performance of their
obligations under the Purchase Agreement.
NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of the
Housing and Redevelopment Authority in and for the City of Elk River as follows:
1. The Board of Commissioners hereby approves the purchase of the Property
identified in the Purchase Agreement in accordance with the terms of the Purchase Agreement
and hereby authorizes the HRA's Chair and Executive Director to execute the Purchase
Agreement on behalf of the HRA.
2. If the HRA receives the survey described in Section 9 of the Purchase Agreement
prior to the HRA's and Houlton Investment Company's execution of the Purchase Agreement,
the Board of Commissioners hereby authorizes the HRA staff to modify the terms of the
Purchase Agreement prior to its execution by the HRA Chair and Executive Director to reflect
the HRA's acquisition of the survey and to address any title issues the survey discloses and
authorizes the HRA's Chair and Executive Director to execute the Purchase Agreement, as
modified.
3. The Board of Commissioners hereby authorizes the HRA's Chair and Executive
Director to execute the Contract for Deed and other documents contemplated in the Purchase
Agreement or otherwise necessary to close on the purchase of the Property pursuant to the terms
of the Purchase Agreement, upon Houlton Investment Company's and the HRA's performance of
their obligations under the Purchase Agreement.
The motion for adoption of the foregoing resolution was duly seconded by Commissioner
and, after full discussion thereof, and upon a vote being taken thereof, the
following voted in favor thereof:
1970418v1 2
and the following voted against same:
Adopted this 4th day of December, 2006.
Chair
Attest:
Secretary
1970418v1
STATE OF MINNESOTA
COUNTY OFSHERBURNE
CITY OF ELK RIVER
I, the undersigned, being the duly qualified and acting Secretary of the Housing
and Redevelopment Authority in and for the City of Elk River, Minnesota, DO HEREBY
CERTIFY that I have carefully compared the attached and foregoing extract of minutes with
the original minutes of a meeting of the Board of Commissioners of said Housing and
Redevelopment Authority held on the date therein indicated, which are on file and of record
in my office, and the same is a full, true and complete transcript therefrom insofar as the
same relates to a Resolution Authorizing The Execution of a Purchase Agreement With
Houlton Investment Company and a Purchase of Certain Property Pursuant to the Terms of
Said Purchase Agreement.
WITNESS my hand as such Secretary of the Housing and Redevelopment
Authority in and for the City of Elk River, Minnesota this 4th day of December, 2006.
Secretary
1970418v1 4
REDEVELOPMENT PLAN
FOR
DOWNTOWN ELK RIVER REDEVELOPMENT PROJECT
DATED NOVEMBER 1, 2006
HOUSING AND REDEVELOPMENT AUTHORITY OF THE
CITY OF ELK RIVER, MINNESOTA
TABLE OF CONTENTS
I. INTRODUCTION AND LEGAL BASIS ................................................................................1
A. Intent ................................................................................................. .......................................1
B. Statement ........................................................................................... .......................................1
C. Redevelopment Area Boundaries .................................................. .......................................1
D. Statement of Authority .................................................................... ......................................1
E. Findings and Declaration ................................................................. ......................................2
II. RE DEVELOPMENT PLAN ................................................................. ......................................2
A. Redevelopment Plan Goals and Objectives .......................................................................2
B. Land Use ............................................................................................ ......................................3
C. Redevelopment Activities ................................................................ ...................................... 3
D. Financing Plan .................................................................................. ...................................... 3
E. Development Standards ................................................................... ......................................4
F. Environmental Controls .................................................................. ......................................4
G. Administration of Phase II Improvements .................................. ...................................... 4
H. Modification of Plan ........................................................................ ...................................... 4
Attachment I -Phase II Budget
Attachment II -Redevelopment Area Boundary Map
I. INTRODUCTION AND LEGAL BASIS
A. Intent
The Housing and Redevelopment Authority of the City of Elk River (the HRA) proposes to
establish a redevelopment project area as described herein (the Redevelopment Area
Attachment 1), in connection with the redevelopment of downtown Elk River. It is assumed
that redevelopment will occur in multiple phases. Phase I, identified on Attachment 1 is
known as the Bluffs of Elk River and the Jackson Place project, which will result in a total of
67 for sale condominium units, 32 rental units, and 20,000 square feet of commercial lease
space and underground parking. Phase II consists of two contiguous buildings commonly
known as "Main Street Mall", consisting of two buildings; 716 Main Street (3,950 sq. ft.) and
720 Main Street (5,180 sq. ft.) for a total of 9,130 square feet. The City of Elk River
anticipates that they will secure by contract for deed the Phase II property in order to expand
the King Avenue parking lot. Phase III is the remainder of the Redevelopment Area and will
be the subject of future City-directed studies.
Phase I development was publicly secured through the placement of tax increment bonds not
to exceed a present value of $3,093,563. Phase II improvement costs are estimated to not
exceed $900,000, which includes acquisition, demolition and related soft costs (see Attachment
I -Phase II Budget). In Phase III, the City has appointed a special task force that will study
and prepare a comprehensive report for the City Council and, as appropriate, assist the
Council in acquiring land and/or repairing public infrastructure improvements to effectuate
private redevelopment.
B. Statement
The City and the HRA have determined that development may not occur within the
Redevelopment Area by private enterprise in accordance with the goals and objectives of the
HRA and the City.
The development of these parcels in accordance with the goals and objectives of the HRA and
the City are not attainable in the foreseeable future without the intervention of the HRA and
the City in the private development process. The HRA has prepared this Redevelopment Plan
and subsequent plans, to make the land useful and valuable for contributing to the public
health, safety and welfare.
C. Redevelopment Area Boundaries
The boundaries of the Redevelopment Area are outlined on the Redevelopment Area
Boundary Map (Attachment II). All land included in the Phase I, II and III is within the legal
boundaries of the City.
D. Statement of Authority
Minnesota Statutes Section 469.001-469.047 (Housing and Redevelopment Authority Act)
grants municipalities the authority to designate redevelopment areas within the boundaries of
the municipalities. Within these areas, the municipality may adopt a redevelopment plan and
Pagc 1
establish a project consistent with the municipality's public purpose. The project as
contemplated by this plan consists of a redevelopment project as defined in Section 469.002,
Subdivision 14.
E. Findings and Declaration
The City and the HRA make the following findings:
The land in the Redevelopment Area would not be made available for
redevelopment without the financial aid sought.
2. The Redevelopment Plan for the Redevelopment Area in the Ciry will afford
maximum opportunity consistent with the needs of the locality as a whole, for the
redevelopment of the area by private enterprise.
3. The Redevelopment Plan conforms to the general plan for the development of the
City as a whole.
IL REDEVELOPMENT PLAN
A. Redevelopment Plan Goals and Objectives
The HRA through implementation of this plan, seeks to achieve the following goals and
objectives:
Primary Goal: To ensure the long-term viability of downtown by making a connection
to the rest of the community and by utilizing the riverfront location. Redevelopment
will enhance downtown Elk River's role as a residential, retail and commercial area and
also revitalize investment in the downtown business district.
2. Development Objectives:
• Mixed use (residential/retail/service)
• Consideration of the historic context study results
• Strengthen connection to the community
• Traditional downtown design elements
• Brick, stucco, stone materials with visual breaks in the building design
• Increased residential density
• Pedestrian orientation
• Increase exposure to the riverfront
• Recognize those buildings that have potential for rehabilitation
• Replace market/economic obsolete buildings
• Multiple types of housing products (i.e. townhomes, senior rental coops, market
rate apartments)
2
B. Land Use
Any proposed land uses for the Redevelopment Area shall be consistent with the City's
Zoning Ordinance, specifically, to the Downtown District, Section 30-1026.
"Commercial and residential parking lots and ramps", as proposed in Phase II, is a
conditional use as described in Section 30-1026 (d)(4)(i). At the time any buildings are razed
and a new parking area established, the conditional use permit process will be initiated.
C. Redevelopment Activities
Acquisition
The City anticipates the acquisition of the Phase II properties on which the municipal
parking facilities will be located. Other than that property, other property in the
Redevelopment Area may be acquired in the future by the HRA if and when required to
facilitate development or redevelopment within the Redevelopment Area.
2. Relocation
It is not expected that any persons will be displaced as a result of the Phase II
Redevelopment Plan.
3. Municipal Facilities
From time to time, the Housing and Redevelopment Authority, working with the City, will
assess not only the need for expansion of the King Avenue parking lot, but the totality of
parking needs based on the type and level of future redevelopment.
D. Financing Plan
Project Budget
Attached hereto as Exhibit B is a budget which details estimated development costs
associated with constructing and equipping the Phase II improvements as currently
contemplated and installing public improvements. The items of cost and the costs thereof
shown in the budget axe estimated to be necessary based upon information now available. It
is anticipated that the items of cost and the costs thereof shown in each category in the
budget may decrease or increase, but that the total project costs will not exceed the amount
shown above.
2. Source of Funds and Security
The HRA is entering into a contract for deed for the Phase II properties, pursuant to
Minnesota Statutes, Section 465.71. The contract for deed agreement is payable from the
HRA's general sources including tax levies and existing fund balances, and is not limited to a
specific fund or specific source of revenues.
3
E. Development Standards
The HRA will consider among other things, the following factors when evaluating future
redevelopment proposals for projects within the Redevelopment Area seeking public
assistance and support:
Degree to which redevelopment objectives are provided for or enhanced.
2. Consistency with this plan and the City of Elk River's Comprehensive Plan.
3. Consistency with the Comprehensive Downtown Redevelopment Plan, proposed for
completion in May/June 2007, detailing the Phase III goals and objectives.
F. Environmental Controls
It is presently anticipated that the Phase II improvements in the Redevelopment Area will
not present major environmental problems. All municipal actions and public improvements
will be carried out in a manner that will comply with applicable environmental standards.
The environmental controls to be applied within the area are contained within the codes and
ordinances of the City.
G. Administration of Phase II Improvements
The City Council has authorized the HRA to be responsible for seeing that the contents of
this Plan as it relates to the Phase II improvements are properly administered.
H. Modification of Plan
A Redevelopment Plan may be modified at any time. The modification must be adopted by
the HRA and the City, upon notice and after the public hearing required for the original
adoption of the Redevelopment Plan.
Changes that do not alter or affect the exterior boundaries and do not substantially alter or
affect the general land use established in the plan, shall not constitute a modification of the
Redevelopment Plan, nor require approval by the City.
4
ATTACHMENT I
PHASE II BUDGET
$720,000 ACQUISITION
90,000 INTEREST FINANCING
40,000 DEMOLITION
30,000 ENVIRONMENTAL CONTINGENCY
25,000 PROFESSIONAL FEES
45,000 PARKING SITE IMPROVEMENTS
$950,000 TOTAL COST
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8
PURCHASE AGREEMENT
RELATING TO
716 & 720 MAIN STREET - ELK RIVER, MINNESOTA
Dated: , 2006
Parties. The parties to this Purchase Agreement are:
a. Houlton Investment Company, a Minnesota corporation, 729 Main Street,
Elk River, Minnesota 55330, Attention: Bill Houlton (the "Seller"); and
b. The Housing and Redevelopment Authority in and for the City of Elk
River, 13065 Orono Parkway, Elk River, Minnesota 55330, Attention: Cathy Mehelich
(the "Buyer").
This Agreement sometimes refers to Seller and Buyer individually as a "Party" and collectively
as the "Parties".
2. Property. The real property that is the subject of this Agreement is located at 716
and 720 Main Street, in the City of Elk River, Sherburne County, Minnesota and is legally
described on the attached Exhibit A (the "Property"). The primary improvements located on the
Property are two buildings. The term "Property", as used in this Agreement includes all
improvements and fixtures located on the Property and all hereditaments and appurtenances to
the Property. The Parties do not contemplate the conveyance of any personal property pursuant
to this Agreement.
3. Purchase and Sale. Seller agrees to sell the Property to Buyer pursuant to the
terms of this Agreement, and Buyer agrees to purchase the Property from Seller pursuant to the
terms of this Agreement.
4. Purchase Price. The purchase price for the Property is Seven Hundred Twenty
Thousand Dollars ($720,000) (the "Purchase Price").
5. Payment Terms. Upon Seller's full performance of Seller's obligations under
this Agreement, Buyer must:
a. Tender $216,000.00 to Seller in certified funds or wire transferred funds.
b. Execute a contract for deed attached in the form as Exhibit B (the
"Contract for Deed") and deliver it to Seller pursuant to Section 8(b)(ii).
6. Conveyance Terms. Upon Buyer's full performance of Buyer's obligations under
this Agreement, Seller must execute the Contract for Deed and deliver it to Buyer pursuant to
Section 8(a)(ii).
1941727v7
7. Possession. Upon Buyer's full performance of Buyer's obligations under this
Agreement, Seller must deliver possession of the Property to Buyer, subject to the rights of
Tenants, as defined in Section 12(c). Further:
a. Seller shall cooperate with Buyer to transfer any electric, natural gas and
sewer and water utilities that are in Seller's name to Buyer's name.
b. If closing occurs in 2006, Seller is entitled to retain all rent due for the
month of December, 2006. If closing does not occur unti12007, rent due in the month in
which the closing actually occurs will be prorated on a per diem basis between Seller and
Buyer.
c. Seller is responsible for collecting any and all rent due to Seller on or
before the Date of Closing. If one or more Tenants are delinquent in the payment of rent
due on or before the Date of Closing, rent received after the Date of Closing will be
credited first to the payment of rent due after the Date of Closing. Buyer will tender to
Seller any rent received after the Date of Closing that is in excess of the rent due after the
Date of Closing for application to rent due, but not paid, prior to the Date of Closing
provided Seller, at closing, provides Buyer with written notice of the amount, if any, of
delinquent rent due as of the Date of Closing.
d. Seller represents and warrants to Buyer that Seller has not received a
security deposit from any of the tenants under the Leases. At closing, Seller shall tender
to Buyer an amount equal to all prepaid rent Seller has received on or before the Date of
Closing.
e. Before delivering possession of the Property to Buyer, Seller must remove
all personal property, refuse and debris from the Property (except for the personal
property of Tenants). If Seller does not move all personal property, refuse and debris
from the Property before Seller's delivery or possession of the Property to Buyer, Buyer
may declare such personal property, refuse and debris abandoned and dispose of such
materials in any manner that Buyer deems appropriate. Buyer is entitled to recover from
Seller all costs associated with Buyer's disposal of personal property, refuse or debris left
on the Property subsequent to Buyer's acceptance of possession thereof. Should Seller
refuse to pay such amounts upon demand, Buyer may initiate a legal action against Seller
to recover such amounts along with any costs and attorney fees that Buyer incurs in
connection with such action.
8. Closing. The Parties must meet at the offices of Buyer at 9:30 a.m., on December
22, 2006 (the "Date of Closing"), at which time:
a. Seller must:
(i) execute and/or deliver to the closing agent, with copies to Buyer,
and make arrangements to have the closing agent record or file in the appropriate
county land records any documents necessary to establish the marketability of
Seller's title to the Property, subject only to Permitted Encumbrances;
i9al~z~~~ 2
(ii) execute the Contract for Deed and deliver it to Buyer;
(iii) execute and deliver to Buyer and Buyer's title insurer, if any, an
appropriate Minnesota Uniform Conveyancing Form Affidavit (Form 116-M,
117-M or 118-M) evidencing the absence of bankruptcies, judgments, tax liens or
corporate dissolution proceedings involving parties with the same or similar
names as the Seller and evidencing the absence of mechanic's lien rights affecting
the Property, unrecorded interests affecting the Property, persons in possession of
the Property and known encroachments or boundary line questions affecting the
Property;
(iv) deliver to Buyer an appropriate corporate resolution authorizing
Seller's conveyance of the Property to Buyer and identifying the individual or
individuals authorized to execute the Contract for Deed and any other documents
provided for in this Agreement;
(v) execute and deliver to Buyer anon-foreign affidavit in recordable
form containing such information as is required under IRC Section 1445(b)(2)
and any regulations relating thereto;
(vi) execute and deliver to the closing agent, Buyer or other appropriate
party appropriate Federal Income Tax Reporting Forms;
(vii) execute and deliver to Buyer original Estoppel Certificates in the
form attached as Exhibit D executed by each person or entity identified as a
Tenant under a Lease referenced in Exhibit C hereto;
(viii) execute and deliver to the closing agent, with a copy to Buyer, a
completed Minnesota Department of Health Well Disclosure Certificate or
include on the Contract for Deed the statement "The Seller certifies that the Seller
does not know of any wells on the described real property" or the statement "I am
familiar with the property described in this instrument and I certify that the status
and number of wells on the described real property have not changed since the
last previously filed well disclosure certificate:" followed by Seller's signature;
(ix) execute and deliver to the closing agent, with copies to Buyer, and
make arrangements to have the closing agent record or file in the appropriate
county land records, the affidavits described in Minnesota Statutes, § 116.48,
Subd. 6 and § 115B.16, Subd. 2 if required;
(x) deliver to Buyer the Date Down Certificate described in Section
12; and
(xi) pay or provide evidence of payment of the following: the cost of
providing the Title Commitment, as defined in Section 9; the fees due upon the
recording any documents necessary to place record title in the condition provided
for in this Agreement; real estate taxes and, if applicable, levied or pending
special assessments pursuant to the provisions of Section 1 l; the commission or
1941727v7
fee due any real estate agent that Seller has employed in connection with this
transaction; and one-half of Title's fee to conduct and insure the closing of this
transaction.
b. Buyer must:
(i) tender the Purchase Price to Seller pursuant to the provisions of
Section 5 above;
(ii) execute the Contract for Deed and deliver it to Seller; and
(iii) pay or provide evidence of payment of the following: Buyer's pro-
rata share of real estate taxes pursuant to Section 11; the premium for Buyer's
owner's policy of title insurance; the fees due upon the recording the Contract for
Deed; and one-half of Title's fee to conduct and insure the closing of this
transaction.
9. Evidence of Title. Buyer has obtained a commitment from Old Republic
National Title Insurance Company ("Title") to issue an ALTA form 1992 Owner's Policy of Title
Insurance, in the amount of the Purchase Price, insuring Buyer's title to the Property (the "Title
Commitment"). Buyer will promptly obtain, at Buyer's cost, an ALTA/ACSM Land Title
Survey of the Property (the "Survey"). (The Title Commitment and the Survey are referred to
herein as the "Evidence of Title".)
10. Examination of Title. Within ten (10) business days of Buyer's receipt of the last
item of the Evidence of Title or within ten (10) days of Buyer's discovery of a defect in the
marketability of Seller's title to the Property which defect was not reasonably ascertainable from
the Evidence of Title, Buyer may give Seller written notice of alleged defect(s) in the
marketability of Seller's actual and record title to the Property and request that Seller make
Seller's title marketable ("Objections"). Any covenants, conditions, restrictions, easements or
other rights evidenced by a recorded instrument disclosed in Schedule B of the Title
Commitment to which Buyer does not object within the ten (10) day period set forth above shall
be deemed permitted encumbrances (the "Permitted Encumbrances") and shall be referenced as
permitted encumbrances in Section 2 and Section 3 of the Contract for Deed. Within ten (10)
days of Seller's receipt of Buyer's Objection(s), Seller must notify Buyer, in writing, if Seller will
attempt to make Seller's title to the Property marketable. If Seller notifies Buyer that Seller will
attempt to make Seller's title to the Property marketable, Seller must use commercially
reasonable efforts to do so before the Date of Closing. If Seller notifies Buyer that Seller does
not intend to make Seller's title marketable or if Seller notifies Buyer that Seller intends to make
Seller's title marketable but, notwithstanding Seller's use of commercially reasonable efforts
Seller is unable to do so on or before the Date of Closing, Buyer must either:
a. terminate this Agreement pursuant to the procedures set forth in Section
21 below;
b. notify Seller that Buyer waives an Objection. If Buyer waives an
Objection, the matter giving rise to the Objection is deemed a permitted encumbrance and
~ 94 »z~~~ 4
shall be referred to as a permitted encumbrance in Section 2 and Section 3 of the Contract
for Deed and the Parties must fully perform their obligations under this Agreement.
If Buyer does not notify Seller of Buyer's election to terminate this Agreement pursuant to
subsection (a) above or waive Buyer's Objection pursuant to subsection (b) above before the
Date of Closing, this Agreement automatically terminates, and Buyer must deliver an executed
and recordable quit claim deed to the Property to Seller to evidence the termination of this
Agreement.
11. Real Estate Taxes and Special Assessments. The Parties must pay the real
estate taxes (which term, as used in this Agreement, must include service charges assessed
against real property on an annual basis pursuant to Minnesota Statutes 429.101) and special
assessments as follows:
a. On or before the Date of Closing, Seller must pay the installments of real
estate taxes due and payable with respect to the Property in 2006 and all prior years; all
installments of special assessments due and payable therewith; and any penalties or
interests due as a result of the late payment thereof;
b. If the transaction contemplated by this Agreement closes in December of
2006, Seller and Buyer will not prorate the real estate taxes due and payable in 2006 or
the installments of special assessments due and payable therewith. If the closing is
delayed and the transaction does not close unti12007, Seller and Buyer must prorate the
installments of real estate taxes due and payable in 2007 and the installments of special
assessments due and payable therewith on a per diem basis using a calendar year to the
actual closing date. The parties must prorate the real estate taxes and special assessment
installments using current real estate tax information, if available, and, if current real
estate tax information is not available, using the amount of the real estate taxes due and
payable in the year due and payable in 2006. Any such pro-ration is final and no
subsequent adjustments, refunds or additional payments must be made;
c. Subject to subsection b. above, Buyer will assume the obligation to pay all
installments of real estate taxes due and payable in 2007 and future years and all
installments of special assessments due and payable therewith.
12. Seller's Representations and Warranties. Seller makes the following
representations and warranties to Buyer:
a. The individuals executing this Agreement on behalf of Seller represent to
Buyer that they have the legal and corporate authority to execute this Agreement on
behalf of Seller and to bind Seller. Seller represents and warrants to Buyer that Seller has
the legal and corporate authority to enter into this Agreement and to sell the Property.
b. Seller represents and warrants that there has been no labor or materials
furnished to the Property for which payment has not been paid.
1941727v7
c. Seller represents and warrants that Exhibit C is a true and complete list of
all leases affecting the Property (the "Leases"); the current tenants under the Leases (the
"Tenants") and the amount of all security deposits relating to the Leases.
d. Seller represents and warrants that there are no unrecorded mortgages,
contracts, purchase agreements, options, leases (except for the Leases), easements or
other agreements or interests relating to the Property.
e. Seller represents and warrants that there are no persons, other than the
Tenants, in possession of any portion of the Property other than pursuant to a recorded
document.
f. Seller represents that, to the best of Seller's actual knowledge, that there
are no encroachments or boundary line questions affecting the Property.
g. Seller represents that Seller is the record fee owner of the Property.
h. Seller represents and warrants that the Property has legal access to a public
right of way.
i. Seller represents that, to the best of Seller's actual knowledge, the Property
and the improvements thereon, if any, are not in violation of any statute, law, ordinance
or regulation.
j. Seller represents that, to the best of Seller's actual knowledge, there is no
action, litigation, governmental investigation, condemnation or administrative proceeding
of any kind pending against Seller or involving any portion of Property, and no third
party has threatened Seller with commencement of any such action, litigation,
investigation, condemnation or administrative proceeding.
k. Seller represents that, to the best of Seller's actual knowledge, Seller is not
in default in the performance of any of Seller's obligations under any mortgage, contract
for deed, lease, easement agreement, covenant, condition, restriction or other instrument
relating to the Property.
1. Seller represents that, to the best of Seller's actual knowledge, there are no
wells, septic systems, or underground or above ground storage tanks, of any size or type
located on the Property.
m. Seller represents that, to the best of Seller's knowledge, the Property has
not been used for methamphetamine production.
n. Seller represents that, to the best of Seller's actual knowledge, there are no
Hazardous Substances located on the Property; the Property is not subject to any liens or
claims by government or regulatory agencies or third parties arising from the release or
threatened release of Hazardous Substances in, on or about Property; and Property has
not been used in connection with the generation, disposal, storage, treatment or
transportation of Hazardous Substances. For purposes of this Agreement, the term
1941727v7 O
"Hazardous Substance" includes but is not limited to substances defined as "hazardous
substances," "toxic substances" or "hazardous wastes" in the Comprehensive
Environmental Response Compensation Liability Act of 1980, as amended, 42 U.S.C.
§9601, et seq., and substances defined as "hazardous wastes," "hazardous substances,"
"pollutants, or contaminants" as defined in the Minnesota Environmental Response and
Liability Act, Minnesota Statutes, § 115B.02. The term "hazardous substance" must also
include asbestos, polychlorinated biphenyls, petroleum, including crude oil or any
fraction thereof, petroleum products, heating oil, natural gas, natural gas liquids, liquified
natural gas, or synthetic gas useable for fuel (or mixtures of natural gas and synthetic
gas).
o. Seller represents that, to the best of Seller's actual knowledge, no activity
has been undertaken on the Property that would cause or contribute to the discharge of
pollutants or of fluids into any water source or system, the dredging or filling of any
waters or the discharge into the air of any emissions that would require a permit under the
Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq. or the Clean Air Act, 42
U.S.C. §7401 et seq. or any similar state law or local ordinance.
p. Seller represents and warrants that Seller has not engaged a real estate
agent to represent Seller and assist in the transaction.
All representations that are made to the best of Seller's actual knowledge are made to the best of
the actual knowledge of Seller's president, William Houlton, without investigation or
verification. If, at any time prior to the Date of Closing, Seller acquires actual knowledge of
events or circumstances which render the representations set forth in this Section 12 inaccurate in
any respect, Seller must promptly notify Buyer, in writing. Seller will indemnify Buyer, its
successors and assigns, against and will hold Buyer, its successors and assigns harmless from,
any expenses or damages, including reasonable attorneys fees, that Buyer incurs because of the
Seller's breach of any of the above warranties; the inaccuracy of any of the above representations
when made; or Seller's failure to promptly notify Buyer if, before the Date of Closing, the
representations set forth above become inaccurate. The representations, warranties and
indemnification set forth above survive the closing of this transaction and the execution of the
Contract for Deed; provided, however, Buyer must assert any and all claims for
misrepresentation ,breach of warranty or indemnification on or before the date two years from
actual closing date, and Buyer will be conclusively determined to have waived any such claims
not asserted within said two year time period. At closing, an authorized representative of Seller
must execute and deliver to Buyer a certificate of Seller certifying that the representations
contained in this Section 12 are true as of the Date of Closing or, if such representations are no
longer true, describing, in detail, the reasons why the representations are no longer true (the
"Date Down Certificate").
13. Bu_yer's Representations and Warranties. Buyer hereby represents and
warrants to Seller as follows:
a. Buyer hereby represents and warrants to Buyer that (i) Buyer is a housing
and redevelopment authority duly organized and validly existing pursuant to Minn. Stat.
Ch. 469; (ii) Buyer has full right and authority to enter into this Agreement, subject to
1941727v7 7
Buyer's compliance with the requirements of Minn. Stat. Section 469.029; (iii) each
person signing on behalf of Buyer is authorized to do so.
b. Buyer has not engaged a real estate agent to represent and assist Buyer in
this transaction.
14. Indemnifications.
a. Seller must indemnify and defend Buyer against and hold Buyer harmless
from any and all claims, causes of action, administrative orders, costs, expenses and
liabilities of every kind and nature and howsoever originating and existing, arising out of
Seller's operation or ownership of the Property prior to the Date of Closing, whether
currently known or unknown including, but not limited to, claims for environmental
contamination of the Property and including Buyer's attorneys fees and costs incurred in
defending against claims to establish or enforce such liabilities.
b. Buyer must indemnify and defend Seller and hold Seller harmless from
any and all claims, causes of action, administrative orders, costs, expenses and liabilities
of every kind and nature howsoever originating and existing, arising out of any and all
the Buyer's operation or ownership of the Property subsequent to the Date of Closing,
including, but not limited to claims for environmental contamination of the Property and
including Seller's attorneys fees and costs incurred in defending claims to establish or
enforce such liabilities.
15. Seller's Disclosure and Buyer's Inspection. Seller must deliver to Buyer such
of the following as are currently in Seller's possession or readily available to Seller at no cost
within seven (7) days of the date of this Agreement:
a. any construction or "as built" drawings or specifications for the
improvements located on the Property;
b. any manuals and other documents in Seller's possession or available to
Seller relating to the operation and maintenance of fixtures and equipment located on the
Property, including but not limited to, telephones, heating, cooling, plumbing and
electrical systems;
c. any maintenance and repair records relating to the improvements or
equipment located on the Property;
d. any environmental assessments or reports relating to the Property;
any leases relating to the Property; and
f. any abstracts of title to the Property.
At all times prior to the Date of Closing, Buyer and its agents have the right, upon reasonable
notice to Seller, to go upon the Property to inspect the Property and to determine the condition of
the Property and the improvements located thereon, including specifically the presence or
1941727v7
absence of hazardous substances, petroleum products and asbestos in, on, or about the Property.
Seller agrees to cooperate with Buyer in this regard including making personnel available for
orientations on various systems located within the improvements located on the Property. Buyer
agrees to repair any damage to the Property caused by such inspections and to return the Property
to substantially the same condition as existed prior to Buyer's inspection.
16. Buyer's Contingencies. Buyer's obligations under this Agreement are contingent
on:
a. Seller's timely performance of each of Seller's obligations under this
Agreement;
b. Buyer's determination that the representations set forth in Section 12 are
true, when made, and remain true as of the Date of Closing.
c. Buyer's determination in Buyer's sole discretion, based on the information
and inspections described in Section 15 above and any other relevant information that the
condition of the Property and improvements is acceptable to Buyer.
d. Buyer's Board's approval and ratification of this Agreement on or before
December 4, 2006.
If Buyer determines that one or more of the contingencies described in this Section 16 has not
been satisfied, Buyer may, by written notice to Seller prior to the Date of Closing, terminate this
Agreement pursuant to Section 21 below.
17. Casualty Loss. If the improvements on the Property are substantially damaged
prior to closing, Seller must immediately notify Buyer, in writing, of such damage and provide to
Buyer, along with Seller's written notification, copies of all insurance policies or agreements
relating to or otherwise covering the Property. Within twenty (20) days of Buyer's receipt of
Seller's notice Buyer may, at Buyer's option, terminate this Agreement pursuant to Section 21
below. If Buyer does not terminate this Agreement within said twenty (20) day period, the
Parties must fully perform their obligations under this Agreement, and Seller must assign to
Buyer Seller's rights to any and all insurance proceeds which Seller is entitled to receive on
account of such casualty loss. If, prior to the Date of Closing, the improvements on the Property
are damaged less than substantially, Seller must repair such damage, and the Parties must
proceed pursuant to the provisions of this Agreement with the Date of Closing extended for a
period of time not to exceed one hundred twenty days. For purposes of this Section 18 the term
"substantially damaged" must mean damage that requires repairs which cost more than 10% of
the Purchase Price. At the request of either Party, the Parties must engage a real estate appraiser
licensed in the state of Minnesota to determine the cost of repairing damage to the Property.
Buyer must select the appraiser from a list of three appraisers which Seller must prepare and
deliver to Buyer within ten (10) days of the occurrence of damage to the improvements located
on the Property. Each Party must pay one-half of the appraiser's fee.
18. Relocation Benefits. Seller represents and warrants to Buyer that Seller does not
occupy any portion of the Property, and Seller acknowledges and agrees that, therefore, Seller is
not a "displaced person" within the meaning of Minnesota Statutes, Section 117.50, Subdivision
1941727v7 9
3 and is not entitled to any relocation assistance, services, payments or other benefits pursuant to
Minnesota Statutes, Chapter 117 or any other applicable federal or state law. In addition to the
foregoing, Seller is waiving, releasing and forever discharging any relocation assistance, services
and benefits under Minnesota Statutes, Chapter 117 and the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970, United States Code, title 42, sections 4601 to
4655, as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987
and regulations adopted thereon (collectively "URA"). Seller acknowledges that it has been
advised that under the URA, if Seller were eligible to relocation assistance, services and benefits
under the URA (which Seller is not), Seller may have been entitled to reestablishment expenses,
the costs of moving personal property and assistance in finding a relocation site as well as
documenting any claim under the URA ("Relocation Benefits"). As a material condition to this
Agreement, Seller waives, releases, discharges and promises to bring no claim whether legal or
administrative for Relocation Benefits.
19. Assignment. Buyer may not assign Buyer's rights and obligations under this
Agreement to a third party without the written consent of Seller, which consent Seller shall not
unreasonably withhold.
20. Default. If either Party defaults in the performance of any of the Party's
obligations under this Agreement, the non-defaulting Party may, after written notice to the
defaulting Party, suspend performance of its obligations under this Agreement, and the rights of
the non-defaulting Party are as follows:
a. Buyer's Default. If Buyer defaults in the performance of any of Buyer's
obligations under this Agreement, Seller may at Seller's option, either:
(i) terminate this Agreement pursuant to Minnesota Statutes, Section
559.21; or
(ii) initiate an action to compel Buyer's specific performance of
Buyer's obligations under this Agreement provided that Seller commences such
action within three (3) months of the date of Buyer's default. In any such action
for specific performance, Seller may also recover Seller's attorneys fees and costs.
The remedies set forth in this Section 20(a) are Seller's sole and exclusive remedies in the event
of Buyer's default.
b. Seller's Default. If Seller defaults in the performance of any of Seller's
obligations under this Agreement, Buyer may, at Buyer's option, either:
(i) terminate this Agreement pursuant to Section 21, below in which
case Buyer will not be entitled to recover damages from Seller; or
(ii) initiate a civil action to compel Seller's specific performance of
Seller's obligations under this Agreement provided that Buyer commences such
action within three (3) months of the date of Seller's default. In any such action
for specific performance, Buyer may also recover Buyer's attorneys fees and
costs.
1941727v7 1 0
The remedies set forth in this Section 20(b) are Buyer's sole and exclusive remedies in the event
of Seller's default; provided, however, if Seller defaults in the performance of Seller's obligations
under Section 7(e) or if Buyer asserts a claim for misrepresentation, breach of warranty or
indemnity under Section 12 within the time period set forth in Section 12, Buyer may seek to
recover Buyer's actual damages.
21. Termination of this Agreement. Sections 10, 16, 17 and 20(b) of this
Agreement allow Buyer to terminate this Agreement under certain conditions. The following
procedures must govern the Parties exercise of their termination rights:
a. Buyer must notify Seller, in writing, of Buyer's intent to terminate this
Agreement.
b. Buyer's notice must recite the Section of this Agreement that authorizes
Buyer's termination of this Agreement and must describe the facts and circumstances
which Buyer asserts justify termination under the referenced Section.
c. Buyer's notice of termination is effective as of the date Buyer deposits the
notice of termination with the United States Postal Service, with all necessary postage
paid, for delivery to Seller via certified mail, return receipt requested at the address set
forth in Section 1 above. If Buyer delivers a notice of termination in a different manner
than described in the preceding sentence, the notice of termination is effective as of the
date Seller actually receives the notice of termination. Buyer must also mail a copy of
the notice of termination to the Parties respective attorneys as provided for in Section 24
below.
d. If Seller disputes Buyer's right to terminate this Agreement, Seller must so
notify Buyer, in writing, within three (3) business days of Seller's receipt of Buyer's
notice of termination.
e. If Seller does not dispute Buyer's right to terminate the Agreement, Buyer
must execute and delivery to Seller a recordable quit claim deed evidencing the
termination of this Agreement.
f. If either Party disputes the validity of an attempted termination of this
Agreement, that Party may initiate a civil action in a court of competent jurisdiction to
determine the status of this Agreement, and the Party that prevails in any such action is
entitled to recover the costs and reasonable attorneys' fees which such Party incurs in the
action from the non-prevailing Party.
g. Section 20(a) provides for Seller's termination of this Agreement under
certain circumstances. Seller's termination of this Agreement pursuant to Section 20(a) is
governed by Minnesota Statutes, Chapter 559 and not by this Section 21.
22. Time. Time is of the essence for all provisions of this Agreement.
23. Survival of Terms. The Parties' obligations under this Agreement and the
representations and warranties which the Parties have recited in this Agreement survive Seller's
1941727v7 1 1
delivery of the Contract for Deed to Buyer and the closing of this transaction; provided,
however, the survival of the representations, warranties and indemnifications set forth in Section
12 is subject to the provisions of Section 12 which provide that claims for misrepresentation,
breach of warranty or indemnification are conclusively deemed to be waived if not asserted
within two years of the Date of this Agreement.
24. Notices. All notices provided for in this Agreement must be in writing. The
notice is effective as of the date two days after the Party sending such notice deposits the notice
with the United States Postal Service with all necessary postage paid, for delivery to the other
Party via certified mail, return receipt requested, at the address set forth in Section 1 above. If
Party delivers a notice provided for in this Agreement in a different manner than described in the
preceding sentence, notice is effective as of the date the other party actually receives the notice.
The Party sending the notice must also mail a copy of the notice to the Parties' respective
attorneys via first class United States mail at the addresses set forth below:
Attorney for Buyer: Briggs and Morgan, P.A.
2200 First National Bank Building
332 Minnesota Street
St. Paul MN 55101
651.808.6600
Attn: Thomas Bray
Attorney for Seller: Black, Moore, Bumgardner, Magnussen, Ltd.
First National Financial Center
812 Main Street, Suite 102
Elk River, MN 55330
763-441-7041
Attn: James A. Bumgardner
25. Full Agreement. The Parties acknowledge that this Agreement represents the
full and complete agreement of the Parties relating to the purchase and sale of the Property and
all matters related to the purchase and sale of the Property. This Agreement supersedes and
replaces any prior agreements, either oral or written, and any amendments or modifications to
this Agreement must be in writing and executed by both Parties to be effective.
26. Governing Law. This Agreement has been made under the laws of the State of
Minnesota and such laws control its interpretation.
Dated:
HOULTON INVESTMENT COMPANY:
By
Its President
1941727v7 1 2
Dated:
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
ELK RIVER
By
Its
By.
Its
i 9a»z~~~ 13
EXHIBIT A
Legal Description of the Property
Parcel A:
The South 119 feet of the East 23 feet of Lot 2 and the West 26.5 feet of the South 119 feet
of Lot 3, all in Block 2, Village of Elk River, according to the plat thereof on file and of
record in the office of the County Recorder of Sherburne County, Minnesota.
Parcel B:
The East 39.5 feet of the South 119 feet of Lot 3, Block 2, Village of Elk River, according to
the plat thereof on file and of record in the office of the County Recorder of Sherburne
County, Minnesota.
1941727v7 A-1
EXHIBIT B
Contract for Deed
[see attached form]
B-1
EXHIBIT C
Schedule of Tenants and Leases
NO.
2
NAME OF TENANT LEASE DATE AMOUNT OF
SECURITY
DEPOSIT
O'Reilly Automotive, Inc., September 26, 2003 None
as assignee of B&B And Lease Modification
Automobile, Inc. Agreement dated June 13, 2006
First National Financial , 2006 None
Services, Inc.
1941727v7 C-I
EXHIBIT D
FORM OF ESTOPPEL CERTIFICATES
TENANT ESTOPPEL CERTIFICATE
(B&B Automotive, Inc./O'Reilly Automotive, Inc.)
To: The Housing and Redevelopment Authority in and for the
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
Subject: September 26, 2003 lease between the Houlton Investment Company, and B&B
Automotive, Inc. as modified by Lease Modification Agreement dated June 13, 2006
between the Houlton Investment Company and O'Reilly Automotive, Inc.
O'Reilly Automotive, Inc. is making the statements set forth below with the knowledge
and understanding that the Housing and Redevelopment Authority of the City of Elk River will
rely on the accuracy of such statements in connection with its decision to purchase the real
property legally described on the attached Exhibit A from the Houlton Investment Company.
1. O'Reilly Automotive, Inc. is the current "Tenant" under that certain Lease
between the Houlton Investment Company and B&B Automotive, Inc. dated September 26,
2003, as modified by that certain Lease Modification Agreement between the Houlton
Investment Company and O'Reilly Automotive, Inc. dated June 13, 2006.
2. The Lease is in full force and effect and, except for the Lease Modification
Agreement dated June 13, 2006, the Lease has not been modified or amended.
3. O'Reilly Automotive, Inc. acknowledges and agrees that the Lease Term expires
on September 30, 2007; that O'Reilly Automotive, Inc. has no right or option to extend the term
of the Lease or to enter into a new lease for the premises; and that O'Reilly Automotive, Inc. has
no right to purchase, option to purchase, right of first refusal, or right of first offer with respect to
the purchase of all or any part of the property that is subject to the premises.
4. The base rent due under Section 4 of the Lease is $3,750 per month and the
amount that Tenant is currently obligated to pay Landlord pursuant to Section 5 of the Lease is
$ per month. O'Reilly Automotive, Inc. agrees that the amounts that it has paid to
the Houlton Investment Company pursuant to Section 5 of the Lease accurately reflect the
amount of real estate taxes, assessments and insurance premiums the Houlton Investment
Company has paid with respect to the leased premises and O'Reilly Automotive, Inc.
acknowledges and agrees that O'Reilly Automotive, Inc. is not entitled to any refund, credit or
set-off of amounts paid to the Houlton Investment Company under Section 5 of the Lease.
1941727v7 I~-1
O'Reilly Automotive, Inc. has not prepaid rent due under Section 4 of the Lease or prepaid any
amounts due under Section 5 of the Lease.
5. O'Reilly Automotive, Inc. states that it is not delinquent in the payment of any
amounts it is obligated to pay pursuant to Section 6 of the Lease.
6. O'Reilly Automotive, Inc. states that, to the best of its actual acknowledge,
Landlord is not currently in default in the performance of any of Landlord's obligations under the
Lease.
7. O'Reilly Automotive, Inc. states that there are no improvements or fixtures, other
than Tenant trade fixtures, currently located on the Leased Premises which O'Reilly Automotive,
Inc. has a right to remove pursuant to the terms of the Lease.
8. O'Reilly Automotive, Inc. states that no labor or materials have been provided to
the Leased Premises at the request of O'Reilly Automotive, Inc. for which full payment has not
been made.
9. O'Reilly Automotive, Inc. acknowledges and agrees that the renewal option set
forth in Section 21 of the Lease has expired and is no further force and effect.
10. The individual executing this Certificate on behalf of O'Reilly Automotive
represents to the Housing and Redevelopment Authority of the City of Elk River that he or she
has all legal and corporate authority necessary to execute this Certificate on behalf of O'Reilly
Automotive, Inc.
O'REILLY AUTOMOTIVE, INC
By:
Its:
1941727v7 I~-2
TENANT ESTOPPEL CERTIFICATE
(First National Financial Services, Inc.)
To: The Housing and Redevelopment Authority in and for the
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
Subject: , 20061ease between the Houlton Investment Company,
and First National Financial Services, Inc.
First National Financial Services, Inc. ("First National") is making the statements set
forth below with the knowledge and understanding that the Housing and Redevelopment
Authority of the City of Elk River will rely on the accuracy of such statements in connection
with its decision to purchase the real property legally described on the attached Exhibit A from
the Houlton Investment Company.
1. First National is the "Tenant" under that certain Lease between the Houlton
Investment Company and First National dated , 2006 (the "Lease").
2. The Lease is unmodified and in full force and effect.
3. The term of the Lease is month-to-month.
4. The gross rent due under Section 4 of the Lease is $650 per month.
5. To the best of First National's actual knowledge, Landlord is not currently in
default in the performance of any of Landlord's obligations under the Lease.
6. Currently, there are no improvements or fixtures, other than Tenant trade fixtures,
located on the Premises which First National has a right to remove pursuant to the terms of the
Lease.
7. No labor or materials have been provided to the Leased Premises at the request of
First National for which full payment has not been made.
8. The individual executing this Certificate on behalf of First National represents to
the Housing and Redevelopment Authority of the City of Elk River that he or she has all legal
and corporate authority necessary to execute this Certificate on behalf of First National
FIRST NATIONAL FINANCIAL
SERVICES, INC.
By:
Its:
i941~z~~~ D-3
SELLER
Houlton Investment Company, a Minnesota corporation,
By
Its
STATE OF MINNESOTA )
ss.
COUNTY OF
This instrument was acknowledged before me on
PURCHASER
Housing and Redevelopment Authority in and for the City of Elk
River,
By _
Its
(Date)
by and
the and _
of , a
under the laws of , on behalf of the
NOTARIAL STAMP OR SEAL (OR OTHER TITLE OR RANK)
SIGNATURE OF NOTARY PUBLIC OR OTHER OFFICIAL
STATE OF MINNESOTA )
ss.
COUNTY OF )
This instrument was acknowledged before me on
by
NOTARIAL STAMP OR SEAL (OR OTHER TITLE OR RANK)
SIGNATURE OF NOTARY PUBLIC OR OTHER OFFICIAL
THIS INSTRUMENT WAS DRAFTED BY: (NAME AND ADDRESS)
Briggs and Morgan, P.A.
2200 First National Bank Building
332 Minnesota Street
Saint Paul, Minnesota 55101
Telephone: (651) 808-6600
Fax: (651) 808-6450
Check here if all or part of the land is registered (Torrens). ^
Tax Statements for the real property described in this instrument
should be sent to: (include name and address)
FAILURE TO RECORD THIS CONTRACT FOR DEED MAY GIVE OTHER PARTIES PRIORITY OVER
PURCHASER'S INTEREST IN THE PROPERTY.
(Date)
1946098v5 4
INJURY OR DAMAGE OCCURRING ON THE PROPERTY.
(a) LIABILITY. Seller shall be free from liability and claims for damages by reason of injuries occurring on or after the
date of this Contract to any person or persons or property while on or about the Property. Purchaser shall defend and
indemnify Seller from all liability, loss, cost and obligations, including reasonable attorneys' fees, on account of or
arising out of any such injuries. However, Purchaser shall have no liability or obligation to Seller for such injuries
which are caused by the negligence or intentional wrongful acts or omissions of Seller.
(b) LIABILITY INSURANCE. Purchaser shall, at Purchaser's own expense, procure and maintain liability insurance
against claims for bodily injury, death and property damage occurring on or about the Property in amounts
reasonably satisfactory to Seller and naming Seller as an additional insured.
10. INSURANCE GENERALLY. The insurance which Purchaser is required to procure and maintain pursuant to paragraphs 7
and 9 of this Contract shall be issued by an insurance company or companies licensed to do business in the State of
Minnesota and acceptable to Seller. The insurance shall be maintained by Purchaser at all times while any amount remains
unpaid under this Contract. The insurance policies shall provide for not less than ten days' written notice to Seller before
cancellation, non-renewal, termination or change in coverage, and Purchaser shall deliver to Seller a duplicate original or
certificate of such insurance policy or policies.
11. CONDEMNATION. If all or any part of the Property is taken in condemnation proceedings instituted under power of
eminent domain or is conveyed in lieu thereof under threat of condemnation, the money paid pursuant to such condemnation
or conveyance in lieu thereof shall be applied to payment of the amounts payable by Purchaser under this Contract, even if
such amounts are not then due to be paid. Such amounts shall be applied in the same manner as a prepayment as provided in
paragraph 5 of this Contract. Such payments shall not postpone the due date of the installments to be paid pursuant to this
Contract or change the amount of such installments. The balance, if any, shall be the property of Purchaser.
12. WASTE, REPAIR AND LIENS. Purchaser shall not remove or demolish any buildings, improvements or fixtures now or
later located on or a part of the Property, nor shall Purchaser commit or allow waste of the Property. Purchaser shall maintain
the Property in good condition and repair. Purchaser shall not create or permit to accrue liens or adverse claims against the
Property which constitute a lien or claim against Seller's interest in the Property. Purchaser shall pay to Seller all amounts,
costs and expenses, including reasonable attorneys' fees, incurred by Seller to remove any such liens or adverse claims.
13. COMPLIANCE WITH LAWS. Except for matters which Seller has created, suffered or permitted to exist prior to the date of
this Contract, Purchaser shall comply or cause compliance with all laws and regulations of any governmental authority which
affect the Property or the manner of using or operating the same, and with all restrictive covenants, if any, affecting title to
the Property or the use thereof.
14. RECORDING OF CONTRACT; DEED TAX. Purchaser shall, at Purchaser's expense, record this Contract in the office of
the county recorder or registrar of titles in the county in which the Property is located within four (4) months after the date
hereof. Purchaser shall pay any penalty imposed under Minnesota Statutes Section 507.235 for failure to timely record the
Contract. Seller shall, upon Purchaser's full performance of this Contract, pay the deed tax due upon the recording of the deed
to be delivered by Seller.
15. NOTICE OF ASSIGNMENT. If either Seller or Purchaser assigns their interest in the Property, the assigning party shall
promptly furnish a copy of such assignment to the non-assigning party.
16. PROTECTION OF INTERESTS. If Purchaser fails to pay any sum of money required under the terms of this Contract or
fails to perform any of the Purchaser's obligations as set forth in this Contract, Seller may, at Seller's option, pay the same or
cause the same to be performed, or both, and the amounts so paid by Seller and the cost of such performance shall be payable
at once, with interest at the rate stated in paragraph 4 of this Contract, as an additional amount due Seller under this Contract
If there now exists, or if Seller hereafter creates, suffers or permits to accrue, any mortgage, contract for deed, lien or
encumbrance against the Property which is not herein expressly assumed by Purchaser, and provided Purchaser is not in
default under this Contract, Seller shall timely pay all amounts due thereon, and if Seller fails to do so, Purchaser may, at
Purchaser's option, pay any such delinquent amounts or take any actions reasonably necessary to cure defaults thereunder and
deduct the amounts so paid together with interest at the rate provided in this Contract from the payments next coming due
under this Contract.
17. DEFAULTS AND REMEDIES. The time of performance by Purchaser of the terms of this Contract is an essential part of
this Contract. If Purchaser fails to timely perform any term of this Contract, Seller may, at Seller's option, elect to declare
this Contract cancelled and terminated by notice to Purchaser in accordance with applicable law or elect any other remedy
available at law or in equity. If Seller elects to terminate this Contract, all right, title, and interest acquired under this Contract
by Purchaser shall then cease and terminate, and all improvements made upon the Property and all payments made by
Purchaser pursuant to this Contract (including escrow payments, if any) shall belong to Seller as liquidated damages for
breach of this Contract. Neither the extension of the time for payment of any sum of money to be paid hereunder nor any
waiver by Seller of Seller's rights to declare this Contract forfeited by reason of any breach shall in any manner affect Seller's
right to cancel this Contract because of defaults subsequently occurring, and no extension of time shall be valid unless agreed
to in writing. After service of notice of default and failure to cure such default within the period allowed by law, Purchaser
shall, upon demand, surrender possession of the Property to Seller, but Purchaser shall be entitled to possession of the
Property until the expiration of such period. Failure by Seller to exercise one or more remedies available under this paragraph
17 shall not constitute a waiver of the right to exercise such remedy or remedies thereafter.
18. BINDING EFFECT. The terms of this Contract shall run with the land and bind the parties hereto and the successors in
interest.
19. HEADINGS. Headings of the paragraphs of this Contract are for convenience only and do not define, limit, or construe the
contents of such paragraphs.
20. ADDITIONAL TERMS: Check here ^ if an Addendum to Contract for Deed containing additional terms and conditions is
attached hereto.
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PREPAYMENT. Unless otherwise provided in this Contract, Purchaser shall have the right to fully or partially prepay this
Contract at any time without penalty. Any partial prepayment shall be applied first to payment of amounts then due under this
Contract, including unpaid accrued interest, and the balance shall be applied to the principal installments to be paid in the
inverse order of their maturity. Partial prepayment shall not postpone the due date of the installments to be paid pursuant to
this Contract or change the amount of such installments.
6. REAL ESTATE TAXES AND ASSESSMENTS. Real estate taxes and installments of special assessments which are due and
payable in the year in which this Contract is dated shall be paid as follows: [If the transaction closes in 2006, this section
will be completed to indicate that Seller is responsible for the payment of all real estate taxes and installments of
special assessments which are due and payable in the year in which the Contract is dated. If the transaction closes in
2007, this section shall be completed to indicate that Purchaser is responsible for the payment of all real estate and
installments of special assessments which are due and payable in the year in which this Contract is dated (although
Seller will be responsible to reimburse Purchaser, at closing, for a prorate share of the 2007 real estate taxes and
installments of special assessments per the Purchase Agreement.]
Purchase shall pay, before penalty accrues, all real estate taxes and installments of special assessments assessed against the
Property which are due and payable in all subsequent years. Seller warrants that the real estate taxes and installments of
special assessments which were due and payable in the years preceding the year in which this Contract is dated are paid in
full. If the Property is subject to a recorded declaration providing for assessments to be levied against the Property by an
owners' association, Purchaser shall promptly pay, when due, all assessments imposed by the owners' association or other
governing body as required by the provisions of the declaration or other related documents.
PROPERTY INSURANCE.
(a) INSURED RISKS AND AMOUNTS. Purchaser shall keep all buildings, improvements and fixtures now or later
located on or a part of the Property insured against loss by fire, lightning and such other perils as are included in a
standard "all-risk" endorsement, and against loss or damage by all other risks and hazards covered by a standard
extended coverage insurance policy, including, without limitation, vandalism, malicious mischief, burglary, theft
and, if applicable, steam boiler explosion. Such insurance shall be in an amount no less than the full replacement
cost of the buildings, improvements and fixtures, without deduction for physical depreciation. If any of the
buildings, improvements or fixtures are located in a federally designated flood prone area, and if flood insurance is
available for that area, Purchaser shall procure and maintain flood insurance in amounts reasonably satisfactory to
Seller.
(b) OTHER TERMS. The insurance policy shall contain a loss payable clause in favor of Seller which provides that
Seller's right to recover under the insurance shall not be impaired by any acts or omissions of Purchaser or Seller,
and that Seller shall otherwise be afforded all rights and privileges customarily provided a mortgagee under the so-
called standard mortgage clause.
(c) NOTICE OF DAMAGE. In the event of damage to the Property by fire or other casualty, Purchaser shall promptly
give notice of such damage to Seller and the insurance company.
DAMAGE TO THE PROPERTY.
(a) APPLICATION OF INSURANCE PROCEEDS. If the Property is damaged by fire or other casualty, the insurance
proceeds paid on account of such damage shall be applied to payment of the amounts payable by Purchaser under
this Contract, even if such amounts are not then due to be paid, unless Purchaser makes a permitted election
described in the next paragraph. Such amounts shall be first applied to unpaid accrued interest and next to the
installments to be paid as provided in this Contract in the inverse order of their maturity. Such payment shall not
postpone the due date of the installments to be paid pursuant to this Contract or change the amount of such
installments. The balance of insurance proceeds, if any, shall be the property of Purchaser.
(b) PURCHASER'S ELECTION TO REBUILD. If Purchaser is not in default under this Contract, or after curing any
such default, and if the mortgagees in any prior mortgages and sellers in any prior contracts fur deed do not require
otherwise, Purchaser may elect to have that portion of such insurance proceeds necessary to repair, replace or restore
the damaged Property (the "Repairs") deposited in escrow with a bank or title insurance company qualified to do
business in the State of Minnesota, or such other party as may be mutually agreeable to Seller and Purchaser. The
election may only be made by written notice to Seller within sixty days after the damage occurs. Also, the election
will only be permitted if the plans and specifications and contracts for the Repairs are approved by Seller, which
approval Seller shall not unreasonably withhold or delay. If such a permitted election is made by Purchaser, Seller
and Purchaser shall jointly deposit, when paid, such insurance proceeds into such escrow. If such insurance proceeds
are insufficient fur the Repairs, Purchaser shall, before the commencement of the Repairs, deposit into such escrow
sufficient additional money to insure the full payment for the Repairs. Even if the insurance proceeds are
unavailable or are insufficient to pay the cost of the Repairs, Purchaser shall at all times be responsible to pay the
full cost of the Repairs. All escrowed funds shall be disbursed by the escrowee in accordance with generally
accepted sound construction disbursement procedures. The costs incurred or to be incurred un account of such
escrow shall be deposited by Purchaser into such escrow before the commencement of the Repairs- Purchaser shall
complete the Repairs as soon as reasonably possible and in a good and workmanlike manner, and in any event the
Repairs shall be completed by Purchaser within one year after the damage occurs. If, following the completion of
and payment for the Repairs, there remains any undisbursed escrow funds, such funds shall be applied to payment of
the amounts payable by Purchaser under this Contract in accordance with paragraph 8(a) above.
(c) OWNERS' ASSOCIATION. If the Property is subject to a recorded declaration, so long as the owners' association
maintains a master or blanket policy of insurance against fire, extended coverage perils and such other hazards and
in such amount as are required by this Contract, then: (i) Purchaser's obligation in the Contract to maintain hazard
insurance coverage on the Property is satisfied; (ii) the provisions of paragraph 8(a) of this Contract regarding
application of insurance proceeds shall be superseded by the provisions of the declaration or other related
documents; and (iii) in the event of a distribution of insurance proceeds in lieu of restoration or repair following an
insured casualty loss to the Property, any such proceeds payable to Purchaser are hereby assigned and shall be paid
to Seller fur application to the sum secured by this Contract, with the excess, if any, paid to Purchaser.
1946098v5
CONTRACT FOR DEED Minnesota Uniform Conveyancing Blanks
Business Entitv Seller Form No. 55-M (2000)
No delinquent taxes and transfer entered; Certificate of Real
Estate Value ( )filed ( )not required. Certificate of
Real Estate Value No.
(Date)
County Auditor
by:
Deputy
reserved for recording data
THIS CONTRACT FOR DEED (the "Contract") is made on the above date by Houlton Investment Company, a corporation
under the laws of Minnesota ("Seller") and Housing and Redevelopment Authority in and for the City of Elk River ("Purchaser")
Seller and Purchaser agree to the following terms:
PROPERTY DESCRIPTION. Seller hereby sells, and Purchaser hereby buys, the real property legally described on Exhibit
A, together with all hereditaments and appurtenances belonging thereto (the "Property"). Unless otherwise specified, Seller
hereby delivers possession of the Property to Purchaser on the date hereof.
Seller check applicable box:
^ The Seller certifies that the Seller does not know of any wells on the described real property.
^ A well disclosure certificate accompanies this document.
^ I am familiar with the property described in thin instrument and I certify that the status and number of wells
on the described real property have not changed since the last previously filed well disclosure certificate.
2. TITLE. Seller warrants that title to the Property is, on the date of this Contract, subject only to the following exceptions:
(a) Reservation of minerals or mineral rights by the State of Minnesota, if any;
(b) Applicable laws, ordinances and regulations;
(c) The lien of real estate taxes and installments of special assessments which are payable by Purchaser pursuant to
paragraph 6 of this Contract; and
(d) The following liens or encumbrances: [to be completed with "Permitted Encumbrances" determined per
Section 10 of the Purchase Agreement]]
DELIVERY OF DEED AND EVIDENCE OF TITLE. Upon Purchaser's full performance of this Contract, Seller shall:
(a) Execute, acknowledge and deliver to Purchaser a Warranty Deed, in recordable form, conveying marketable title to
the Property to Purchaser, subject only to the following exceptions:
(i) Those exceptions referred to in paragraph 2(a), (b), (c) and (d)of this Contract; and
(ii) Liens, encumbrances, adverse claims or other matters which Purchaser has created, suffered or permitted to
accrue after the date of this Contract.
PURCHASE PRICE. Purchaser shall pay to Seller the sum of Seven Hundred Twenty Thousand and No/100 Dollars
($720,000), as and for the purchase price (the "Purchase Price") for the Property, payable as follows:
(a) $216,000.00 contemporaneously with execution of this Contract, payable by wire transfer;
(b) The balance of the Purchase Price, in the amount of Five Hundred Four Thousand and No/100 Dollars
($504,000.00), shall be payable as follows
(i) On the date of this Contract, Purchaser shall pay Seller an amount equal to the amount of the interest that
will accrue on the $504,000 from the date of this Contract through January 15, 2007;
(ii) On July 15, 2007 and on each January 15 and July 15 thereafter through and including January 15, 2012,
Purchaser shall pay Seller asemi-annual installments of principal and interest, in the amount of Fifty Nine
Thousand Eighty Four and 18/100 Dollars ($59,084.18). The unpaid principal balance, together with all
accrued but unpaid interest and all other charges fees and expenses under this Contract, shall be due and
payable in full on January 15, 2012. Interest on the outstanding balance of this Contract shall accrue at an
annual rate of six percent (6%) per annum until paid in full. All payments made under this Contract shall
be applied first to the payment of fees and expenses due hereunder, second to the payment of accrued
interest and the balance shall be applied to the principal installments to be paid in the inverse order of their
maturity.
1946098v5