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HomeMy WebLinkAbout9F - Ring Road Project CITY COUNCIL AGENDA REPORT March 18, 2002 9F Frank Boyles, City Manager AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION APPROVING ACQUISITION OF PROPERTY FOR RIGHT-OF-WAY FOR THE RING ROAD, AND AUTHORIZING MAYOR AND CITY MANAGER TO EXECUTE RELATED DOCUMENTS (SORKA). DISCUSSION: History: The' City Council has approved construction of the Ring Road in the 2002-2006 Capital Improvement Program. The Council has further approved an alignment for the road, parking restrictions, curve provisions, completion of plans and specifications, and directed the staff to negotiate for acquisition of the needed property. Current Circumstances: The staff is negotiating with four of the five parties to acquire right-of-way. Offers have been made to each party based upon th~ appraisals we have received on each property. We have completed negotiations for one of the properties and prepared the City's standardized purchase agreement. : Approximately 8000 square feet of the Borka property (see map) is requlred to extend the Ring Road. We have been working closely with Lorraine Borka and her son Duane to reach a purchase agreement satisfactory to all parties. As part of our discussions, we have realigned the roadway to mitigate its impact upqn this property. Attached is a purchase agreement and right-of-entry which has been executed by Ms. Borka. The purchase agreement provides that the City will acquire the property for the appraised value of $5.02 per square foot plus damages. The City has assumed responsibility of $1000 in closing costs and we have agreed to pave and stripe the parking lot on this property. ISSUES: In order to proceed with this project, the staff must acquire the necessary right- of-way. We are pleased to have been ~ble to preserve the Borka property as a viable commercial site while acquiring th~ property necessary for the Ring Road. ALTERNATIVES: (1) Approve the attached resolution approving acquisition of right-of-way for the Ring Road and authorizing the Mayor and City Manager to Execute Related Closing Documents. (2) Take no action. RECOMMENDED MOTION: Alternative (1). Motion and Second to adopt the attached resolution. 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 1:\COUNCIL\AGNRPTS\2002\BORKA.DOC AN EQUAL OPPORTUNITY EMPLOYER RESOLUTION RESOLUTION APPROVING THE ACQUISITION OF RIGHT-OF-WAY FOR THE RING ROAD AND AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE THE RELATED DOCUMENTS. Motion By: Second By: WHEREAS, the City Council has directed the staff to acquire the right-of-way required for the construction of the Ring Road; and WHEREAS, the staff has obtained appraisals and made offers to property owners for the acquisition of property; and WHEREAS, a property acquisition has been negotiated and memorialized in the City standard purchase agreement; and NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA that: 1. The redtals set forth above are incorporated herein. 2. The acquisition qf the property as set forth in a certain purchase agreement dated March 7, 2002 is hereby approved, 3. The Mayor and City Manager are authorized to execute all necessary documents to effectuate the closing of the transactIon. 4. Funding for the acquisition will be drawn from the Collector Street Fund. PASSED AND ADOPTED THIS 18th DAY OF MARCH, 2002. YES NO Haugen Haugen Gundlach Gundlach Petersen Petersen Zieska Zieska City Manager, City of Prior Lake 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (952) 447-4230 / Fax (952) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER PID: 25-9020480 Project No.: 01-01 RIGHT OF ENTRY I WAIVER OF TRESPASS THE UNDERSIGNED, the owner of certain land in the City of Prior Lake, Minnesota, who is the owner and the person(s) with the right to grant entry to the Subject Property (as hereafter defined), does hereby consent and grant unto the CITY OF PRIOR LAKE, Minnesota ("City"), its contractors, agents and assigns, the irrevocable right. to enter upon the Subject Property and to commence construction and all activities related thereto, for the purposes of constructing Phase II of the RinQ Road (City Project No. 01-01) as generally described on Exhibit A attached hereto and appurtenant work over, under, on, and across the Subject Property as depicted on the plans for the above referenced improvement project as described on Exhibit A and in connection; with the real property ("Subject Property") legally described as follows: LEGAL DESCRIPTION, Described on Exhibit B attached hereto. Scott County, Minnesota. The primary purpose for which the City is entering into this Right of Entry/Waiver of Trespass is to allow access to construct a public roadway and appurtenant wqrk on the Subject Property. The disturbed yard area will be restored with topsoil and sod. The disturbed driveway area will be restored with new bituminous of the same type as exists. By accepting this Right of Entry/Waiver of Trespass, the City acknowledges. that it is entering upon the Subject Property at its own risk and agrees it will hold the undersigned harmless from any claim resulting from the City's activities described herein. It is further understood that this Waiver does not constitute a waiver on behalf of the owner or persons of interest in the Subject Property to any claim for damages for the removal of trees, brush, crops, or for the acquisition of permanent easements over the above described property by the City, its agents and assigns. The undersigned waives all claims against the City, its contractors, agents and their respective successors and assigns, for any damage to the Subject Property caused by the construction described on Exhibit A, except as reserved above. This Right of Entry/Waiver of Trespass expires upon completion of City Project No. 1283-00201-01, but in any case no later than August 1, 2004. Dated this day of ,2002. PROPERTY OWNER: Lorraine Borka ON: 142515 EXHIBIT "6" TO RIGHT-OF-ENTRY I WAIVER OF TRESPASS (Legal Description) That part of the following described parcel of land in the City of Prior Lake: The south 200 feet of the following described tract; That part of the West % of the Southeast ~ of Section 2, township 114, Range 22, Scott County, Minnesota, described as follows: Commencing at a point on the East Line of said West % of the Southeast ~ Distant 977.13 feet North of the Southeast corner thereof; thence West at a right angles from said East line for 700.0 feet to the actual point of beginning of the tract to be described; thence continuing West on the last described course for 150.0 feet. Thence North at right angles and parallel with the said East line of the West % of the Southeast ~ for 587.20 feet to the Southeasterly right of way of Highway NO. 13; Thence Northeasterly along said right of way to an intersection with a line drawn North from the actual point of beginning and parallel with The said East line of the West % of the Southeast ~; Thence south along said line for 697.87 feet to the actual point of beginning, except the West 25.00 feet thereof. Which lies within the following parcel of land: That part of the:following described parcel of land: The south 200 feet of the following described tract; That part of the West % of the Southeast % of SeCtion 2, township 114, Range 22, Scott County, Minnesota, described as followS: Commencing at a point on the East Line of said West % of the Southeast. ~ Distant 977.13 feet North of the Southeast corner thereof; thence West at a right angles from said East line for 700.0 feet to the actual point of beginning of the tract to be described; thence continuing West on the last described course for 150.0 feet. Thence North at right angles and parallel with the said East line of the West % of the Southeast ~ for 587.20 feet to the Southeasterly right of way of Highway NO. 13; Thence Northeasterly along said right of way to an intersection with a line drawn North from the actual point of beginning and parallel with The said East line of the West % of the Southeast ~; Thence south along said line for 697.87 feet to the actual point of beginning, except the West 25.00 feet thereof. DN: 142515 ~-~"_.~---_.~"-'-_'._"_'_"__""__""_'_'~"_~' - ,','..". _._..__"._.~~_.._".__~_,_....__...,___""________.._..,_,"....."..'_"__'_"'_'_~'_"'_""_<'_"_"_'~_~h'_'_"_'__~_'_',""._~_.___"_~.._....."__._"_,,,._,,_____",.....~_.,.~_,.~_.__.__"."_,_.._~"____._.._____.~_.__,~___,._"___..____"._,., PURCHASE AGREEMENT THIS PURCHASE AGREEMENT is made this March 7, 2002 between the City of Prior Lake, a Minnesota municipal corporation, with offices at 16200 Eagle Creek Avenue SE, Prior Lake, Minnesota ("Buyer"), and Lorraine Borka, a single person, whose address is 14384 Rutgers St. NE, Prior Lake, Minnesota ("Seller"). IN CONSIDERATION of the promises and covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer agree as follows: 1. Sale of Property. Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller the seven thousand nine hundred fifty-eight (7958) square feet vacant real property located in Prior Lake, Minnesota, and legally described in the attached Exhibit A, together with all improvements, easements and rights benefiting or appurtenant thereto (collectively referred to as the "Property"). 2. Purchase Price and Manner of Payment. The total purchase price (the "Purchase Price") to be paid by Buyer to Seller for the Property shall be Fifty-One Thousand and 00/100 Dollars ($51,000.00), as calculated in the following manner: I Area of Right-of-Way 1.............-...-.........-..-......................-........................---.....-....-................................ t @ $5.02 per square ft. 1::f.~t;~~~~~;~~~I~f.:::~~~~i~i~~~st. i Total Purchase Pric 79s'a's"quare'''feet''''''''1 ..+.... ..........._..........__................._.h....................................---.........1 $39,949 ; ..................j $10)051 i ....1............ ......$1..;560............i $51,000 The Purchase Price shall be payable in full on the date of closing. 3. Acceptance Deadline. The offer to purchase contained in this AgreemeDt (the "Offer") shall be revoked and shall be null and void on March 18, 2002 at 11 :59 p.m. (the "Acceptance Deadline"), unless the Buyer and Seller has accepted the Offer by the Acceptance Deadline. In order to constitute acceptance of the Offer, Seller and Buyer must execute this Agreement and provide a copy of the fully executed Agreement to Buyer in the manner provided for giving notices specified in Paragraph 17 of this Agreement. 4. Closing and Possession. The closing of the purchase and sale contemplated by this Agreement (the "Closing") shall be on or before April 30, 2002, or such other date as may be mutually agreed to by the parties (the "Date of Closing" or "Closing Date"). The Closing shall take place at the offices of a title company selected by' Buyer (the "Title CompanyQ) or at such other place as may be agreed to by the parties. The parties shall deliver the following documents at Closing: a. Seller's Closinq Documents. On the Closing Date, Seller shall execute and deliver to Buyer the following (collectively, "Seller's Closing Documents"): i. Warranty Deed. The Warranty Deed, free and clear of all encumbrances, liens, covenants, conditions, easements, restrictions, reservations, and assessments, except as shown in the attached Exhibit B (the "Permitted Encumbrances"). Seller must comply with all necessary requirements in order to perfect the conveyance of the property, including but not limited to lot split requirements of the City of Prior Lake and/or Scott County. ii. Seller's Affidavit. An Affidavit of Title by Seller indicating that on the Closing Date there are no outstanding, unsatisfied judgments, tax liens or bankruptcies against or involving Seller or the Property; that there has been no skill, labor or material furnished to the Property for which payment has not been made or for which mechanic's liens could be filed; and that there are no other unrecorded interests in the Property. iii. FIRPTA Affidavit. A non-foreign affidavit, properly executed and in recordable form, containing such information as is required by IRC Section 1445(b) (2) and its regulations. iv. Abstract of Title. The Abstract of Title to the original parcel must be provided in order for the Title Company to prepare a stub abstract for the Property to be purchased at the Buyer's sole cost and discretion. v. Well Certificate. If there is a well located on the Property, a Well Disclosure Certificate signed by Seller in the form required by law. vi. Riqht of Entry / Waiver of Trespass. Seller must execute the City's Right of Entry/Waiver of Trespass agreement which allows the City to enter upon the Property and the original parcel, legally described in Exhibit "B" of said Right-of-Entry / Waiver of Trespass Agreement, for the construction of the Ring Road and to perform the improvements to the existing parking lot. vi. Title Documents. Seller will provide all other documents necessary as determined by the Title Company in order to provide clear and marketable title to Buyer, including but not limited to a Warranty Deed to Seller from Buyer, or such other person or entity that holds the fee title to the Property, free and clear of all encumbrances, liens, covenants, conditions, easements, restrictions, reservations and assessments, except the Permitted Encumbrances. Costs and recording fees for said documents will be borne by the Seller. b. Buyer's Closinq Documents. On the Closing Date, Buyer will execute and deliver to Seller the following (collectively, "Buyer's Closing Documents"): i. Purchase Price. The sum of Fifty-One Thousand and 00/100 Dollars ($51,000.00). -2- ii. Title Documents. Such Affidavits of Purchaser, Certificates of Value or other documents as may be reasonably required in order to record the Seller's Closing Documents. 5. Possession of Property. Seller shall vacate the Property as of the Closing Date. 6. Prorations. Seller and Buyer agree to the following allocations of costs regarding this Agreement. a. Seller's Closinq Costs. Seller shall pay (i) the cost of obtaining and recording any documents necessary to make title to the Property mark~table as provided in this Agreement; and (ii) the cost of the title insurance commitment as provided in this Agreement, (iii) the cost of preparing the Seller's Closing Documents, and (iv) any other cost or expenses allocated to Seller under this Agreement. b. Buyer's Closinq Costs. Buyer shall pay (i) the cost of preparing the Buyer's Closing Documents, (ii) the total closing fee charged by the Title Company, (iii) the premium for any title insurance policy purchased by Buyer, and (iv) any other cost or expense allocated to Buyer under this Agreement. c. Real Estate Taxes and Special Assessments. i. General real estate taxes payable in 2001 and all prior years shall be paid by Seller. ii. Real estate taxes payable for the first half of 2002 (due May 15, 2002) shall be paid by Seller. Real estate taxes due and payable for the second half of 2002 (due October 15, 2001) and subsequent years shall be paid by Buyer. iii. Seller shall pay all special assessments levied, pending, or constituting a lien against the Property as of the Closing Date, if any, including without limitation any installments of special assessments (including interest) payable with general real estate taxes in 2001 (the "Special Assessments"). In the event that the amount of the Special Assessments is unknown as of the Date of Closing, Seller shall escrow with the Title Company on the Date of Closing one and one-half (1.5) times the estimated amount of the Special Assessments. Upon receipt of notification of the actual amount of the Special Ass~ssments, the Title Company shall pay such amount from the escrowed funds. Any escrowed funds remaining after payment of the actual amount of the Special Assessments shall be disbursed to Seller. In the event that the escrowed funds are not sufficient to pay the actual amount of the Special Assessments, Seller shall deposit with the Title Company such additional amounts as may be necessary to fully pay the actual amount of the Special Assessments. Seller shall pay such additional amount to the Title Company within fourteen (14) days of the date of notice from Buyer or -3- the Title Company that the escrowed funds are not sufficient to pay the actual amount of the Special Assessments d. Miscellaneous. i. In addition to those costs and expenses allocated to and/or to be paid or assumed by Seller pursuant to this Agreement, Seller agrees to pay any other closing costs and expenses customarily paid by sellers and Buyer agrees to pay any other closing costs arid expenses customarily paid by buyers. ii. Seller hereby indemnifies Buyer for any claim, cost, or damage related to any brokerage fee due because of this Agreement. 7. Title Evidence. As soon as reasonably possible but no later than thirty (30) days after the date of this Agreement, Seller shall, at Seller's sole cost and expense, deliver the following to Buyer (collectively, the "Title Evidence"): a. A commitment by the Title Company to issue an AL T A Form B 1990 Owner's Policy of Title Insurance, in an amount equal to the Purchase Price, to insure Buyer's title to the Property (the "Title Commitment"), including copies of documents referenced in Schedule B thereof. The Title Commitment shall have an effective date of no earlier than the date of this Agreement. The Title Commitment shall include affirmative coverages for appurtenant easements, if any. The Title Commitment shall obligate the Title Company to delete standard exceptions from the Title Commitment and the policy upon the Title Company's receipt of a satisfactory survey of the Property, a seller's affidavit in the form described in Paragraph 4a(iii) and a buyer's affidavit in the form described in Paragraph 4b(ii). b. Within ten (10) days of the date of this Agreement, Seller shall deliver to Buyer a copy of any survey of the Property in Seller's Possession. Buyer may, at Buyer's sole cost and expense, have a current survey of the Property prepared by a surveyor registered under the laws of State of Minnesota. Such survey shall be certified to Buyer and the Title Company, and the certification language shall be reasonably acceptable to Buyer (the "Survey"). The Survey shall meet the 1999 Minimum Standard Detail Requirements for AL TAlACSM Title Surveys. 8. Title Examination, Title Corrections and Remedies. Within ten (10) business days of Buyer's receipt of the last item of Title Evidence and within ten (10) business 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 Title Evidence, Buyer shall deliver written objections thereto to Seller (the "Objections"). Seller shall have sixty (60) days from receipt of the Objections to make title marketable. Upon receipt of the Objections, Seller shall, within ten (10) business days, notify Buyer of Seller's intention to make title marketable within the 60-day period. Liens or encumbrances for liquidated amounts that can be released by payment or escrow from proceeds of closing shall not delay the closing. Cure of the defects by Seller shall be diligent and prompt. Pending correction of title, the payments required hereunder shall be -4- postponed, but upon correction of title, and within ten (10) days after written notice to the Buyer, the parties shall perform this Agreement according to its terms. a. If notice is given and Seller makes title marketable, then upon presentation to Buyer and proposed lender of documentation establishing that title has been made marketable, and if not objected to in the same time and manner as the original title objections, the Closing shall take place within ten (10) business days or on the scheduled Closing Date, whichever is later. b. If notice is given and Seller attempts in good faith to make title marketable but the 60-day period expires without title being made marketable, Buyer may declare this Agreement null and void by notice to Seller, and neither party shall be liable for damages hereunder to the~other. c. If Seller does not give notice of intention to make title marketable, or if notice is given but the 50-day period expires without title being made marketable due to Seller's failure to make good faith attempts to make title marketable, Buyer may, as permitted by law, pursue anyone or more of the following: i. Proceed to closing without waiver or merger in the deed of the Objections and without waiver of any remedies, and may: (1) Seek damages, costs, and reasonable attorney's fees from Seller as permitted by law; or (2): Undertake proceedings ;to correct the objections to title; ii. Rescind of this Purchase Agreement by notice as provided herein, in whtch case the Purchase Agre~ment shall be null and void; iii. Seek damages from Seller, including costs and reasonable attorney's fees, as permitted by law; iv. Seek specific performance, including costs and reasonable attorney's fees, within six (6) months after such right of action arises. d. If title is marketable, or is made marketable as provided herein, and Buyer defaults in any of the agreements herein, Seller may cancel this Agreement as provided by statute and retain all payments made hereunder as liquidated damages. e. If title is marketable, or is made marketable as provided herein, and Seller defaults in any of the agreements herein, Buyer may, as permitted by law: i. Seek damages from Seller, including costs and reasonable attorney's fees; or ii. Seek specific performance, including costs and reasonable attorney's fees, within six (6) months after such right of action arises. -5- 9. Potential Special Assessments from Construction of Rina Road. Except as provided in 6c above, Buyer and Seller agree that the original parcel (PID #25-902048-0) will not be assessed for the costs of the initial construction of Phase II of the Ring Road. 10. Drivewav and Parkina Area Improvements. The Buyer agrees to construct a bituminous driveway for the remaining original parcel in accordance with applicable engineering standards and local codes at its sole cost and expense. The Buyer also agrees to re-stripe the parking lot as the Seller deems appropriate but in accordance with any applicable city, state or federal statutes, codes or regulations, at its sole cost and expense. 11. Soil and Environmental Tests. Buyer and Buyer's agents shall hav.e the right to go upon the Property and perform such soil and environmental tests as Buyer deems necessary or desirable, in Buyer's sole discretion. Such soil tests and environmental tests, whether performed by Seller or Buyer, shall hereaft~r be referred to as the "Environmental Tests." Buyer shall repair any damage to the Property resulting from any additional soil and environmental tests that Buyer has performed. 12. Inspections. Buyer may perform such inspections of the Property as Buyer, in Buyer's sole discretion, deems appropriate (the "Inspections"). The Inspections shall be done at Buyer's sole cost and expense. Buyer and Buyer's agents shall have the right, upon reasonable advance notice to Seller, to go upon the Property to perform the Inspections. :13. Representations and Warranties bv Seller. Seller makes the following representations to Buyer as of the date of this Agreem~nt and as of the Date of Closing: a. Authority. Seller represents and warrants to Buyer that Seller has.the requisite power and authority to enter into this Agreement and the Seller's Closing Documents to be signed by Seller; thaLthe 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 or arbiter to which Seller is a party; and such documents are valid and binding obligations of Seller, and are enforceable in accordance with their terms. b. Title to Property. Seller owns or will own on the Closing Date, the Property free and clear of all encumbrances, liens, covenants, conditions, easements, restrictions, reservations, and assessments, except the Permitted Encumbrances. c. Assessments. Seller has received nQ notice of actual or threatened special assessments or reassessments of the Property, other than these potential assessments from the construction of the Ring Road. d. Environmental Laws. To the best of Seller's knowledge, no toxic or hazardous substances or wastes, pollutants or contaminants (including, without limitation, asbestos, urea formaldehyde, the group of organic compounds known as polychlorinated biphenyls, petroleum products including gasoline, fuel oil, crude oil and various constituents of such products, and any hazardous substance as defined in the Comprehensive Environmental Response, Compensation and -6- Liability Act of 1980 ("CERCLA", 42 U.S.C. 99601-9657, as amended) have been generated, treated, stored, released or disposed of, or otherwise placed, deposited in or located on the Property, nor has any activity been undertaken on the Property that would cause or contribute to (i) the Property becoming a treatment, storage or disposal facility within the meaning of, or otherwise bring the Property within the ambit of, the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S. C. 96901 et.~., or any similar state law or local ordinance, (ii) a release or threatened release of toxic or hazardous wastes or substances, pollutants or contaminants, from the Property within the meaning of, or otherwise bring the Property within the ambit of, CERCLA, or any similar state law or local ordinance, or (iii) the discharge or pollutants or effluents into any water source or system, the dredging or filling of any waters or the discharge into the air of a-ny emissions, that would require a permit under the Federal Water Pollution Control Act, 33 U.S.C. 91251 et.~., or the Clean Air Act, 42 U.S.C. 97401 et. seQ., or any similar state law or local ordinance, except as disclosed in the reports of Agassiz Environmental Systems and Midwest Analytical Services. To the best of Seller's knowledge, there are no substances or conditions in or on the Property that may support a claim or cause of action under RCRA, CERCLA or any other federal, state or local environmental statutes, regulations, ordinances or other environmental regulatory requirements, including without limitation, the Minnesota Environmental Response and Liability Act, Minn. Stat. 9115B ("MERLA") and the Minnesota Petroleum Tank Release Cleanup Act, Minn. Stat. 9 115C, except as disclosed in the reports of Agassiz Environmental Systems and Midwest Analytical Services. e. RiQhts of Others to Purchase Property. There ar,e no unrecorded mortgages, contracts, 'purchase agreements, options,: rights of first refusal, leases, easements or other agreements or interests' relating to the Property and there are no persons in possession of any portion 'of th~ Property, except as may be disclosed by the Title Evidence; f. Seller's Defaults. Seller is not in default in the performance of any of Seller's obligations or liabilities under any easement agreement, covenant, condition, restriction or other instrument relating to the Property. g. FIRPTA. Seller is not a "foreign person," "foreign partnership," "foreign trust," or "foreign estate" as those terms are defined in Section 1445 of the Internal Revenue Code. h. ProceedinQs. There is no action, litigation, investigation, condemnation or proceeding: of any kind pending or, to the best knowledge of Seller, threatened against Seller or the Property. i. Wells. Seller certifies that Seller does not know of any "Wells" on the described Property within the meaning of Minn. Stat. 91031. This representation is intended to satisfy the requirements of that statute. -7- j. Private Sewer Systems. Seller certifies that Seller does not know of any private sewer system on or serving the Property, nor have any been installed or removed during Seller's ownership of the Property. k. Compliance. To the best of Seller's knowledge, the Property fully conforms with all applicable statutes, laws, codes, ordinances and restrictions including all zoning, platting, subdivision and use laws and all building, energy and environmental codes and regulations. To the best of Seller's knowledge, all improvements are located entirely within the boundary lines of the Property and do not encroach upon any adjacent property and no improvements on any adjacent property encroach upon the Property. I. Access. To the best of Seller's knowledge, the Property abuts on and has direct vehicular access to a public road or has driveway access to public roads by permanent, irrevocable easements which wiJI be conveyed to Buyer on the date of closing, and Seller has no knowledge of any fact or condition which would result in the termination of such access. Seller will indemnify Buyer, and Buyer's successors and assigns, against, and will hold Buyer, and Buyer's successors and assigns, harmless from, any expenses or damages, including reasonable attorney's fees, that Buyer incurs because of the breach of any of the above representations and warranties, whether such breach is discovered before or after Closing. Consummation of this Agreement by Buyer with knowledge of any such breach by Seller will not cOl)stitute a waiver or release by Buyer of any claims due to such breach. Each of the representations and warranties set forth above shall survive the Closing. Buyer agrees to accept the Property in "as is" condition, e~cept as may be provided elsewhere in this Agreement. ;;. 14. Representations and Warranties of Buyer. Buyer represents and wqrrants to Seller that Buyer is a duly organized municipal corporation under the laws of the.' State of Minnesota; that Buyer is duly qualified to transact business in the State of Minnesota; that Buyer has the requisite power and authority to enter into this Agreement and the Buyer's Closing Documents to be signed by Buyer; such documents have been, or will have been by the Date of Closing, duly authorized by all necessary action on the part of Buyer and have been duly executed and delivered; that the execution, delivery and performance by Buyer of such documents do not conflict with or result in violation of Buyer's governing documents or any judgment, order, or decree of any court or arbiter to which Buyer is a party; and such documents are the valid and binding obligations of Buyer and enforceable in accordance with their terms. Buyer will indemnify Seller, and Seller's successors and assigns, against, and will hold Seller, and Seller's successors and assigns, harmless from, any expenses or damages, including reasonable attorney's fees, that Seller incurs because of the breach of any of the above representations and warranties, whether such breach is discovered before or after Closing. Consummation of this Agreement by Seller with knowledge of any such breach by Buyer will not constitute a waiver or release by Seller of any claims due to such breach. Each of the representations and warranties set forth above shall survive the Closing. -8- 15. Buyer's Continaencies. The obligations of Buyer under this Agreement are contingent upon each of the following: a. Representations and Warranties. The representations and warranties of Seller contained in this Agreement shall be true at the time this Agreement is executed and on the Closing Date as if made on the Closing Date. b. Title. Title shall have been found acceptable, or been made acceptable, in accordance with the requirements and terms of this Agreement. c. Performance of Seller's ObliQations. Seller shall have performed all of the obligations required to be performed by Seller under this Agreement, as and when required by this Agreement. d. Survey. Buyer shall be satisfied, in Buyer's sole discretion, with the Survey. e. Inspections. The results of any Inspections shall be satisfactory to Buyer, in Buyer's sole discretion. Unless each of the above contingencies is satisfied, removed, or waived by Buyer one day before the Date of Closing, Buyer shall have the right to cancel this Purchase Agreement by giving Seller written notification of Buyer's election to so cancel. Upon delivery of such written notification, this Purchase Agreement shall be null and void, and Seller and Buyer agree to execut~ a cancellation of this Purchase Agreement. 16., Operation Prior to Closina. Dur~ng the time period between the date of this Agreement and the Closing Date (the "Executory Period"), Seller shall operate and maintain the Property in the ordinary course of business iri accordance with prudent and reasonable business standards. Seller shall execute no con1;racts, leases, or other agreements regarding the Prope~y during the Executory Period which extend beyond the Closing Date without the prior written consent of Buyer, which consent may be withheld by Buyer, in Buyer's sole discretion. ': 17. Brokers. The Buyer is not represented by any broker. The Seller shall bear the responsibility for any brokerage fee on its behalf. 18. Survival. All of the terms, conditions, representations, warranties, and indemnifications contained in this Agreement shall survive and be enforceable after the Closing. 19. Notices. Any notice required or permitted to be given by either party upon the other is gi\1en in accordance with this Agreement if notice is directed to Seller by delivering notice personally to anyone of the undersigned of sellers; or if notice is directed to Buyer, by delivering notice personally to anyone of the undersigned buyers; or if mailed in a sealed wrapper, properly addressed, by United States registered or certified mail, return receipt re- quested, postage prepaid; or if transmitted by facsimile, copy followed by mailed notice as above required; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: -9- If to Seller: Ms. Lorraine Borka 14384 Rutgers St. NE Prior Lake, MN 55372 If to Buyer: City of Prior Lake 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 Attn: Frank Boyles, City Manager with a copy to: Suesan L. Pace, Esq., City Attorney for City of Prior Lake HALLELAND, LEWIS, NILAN SIPKINS & JOHNSON Pillsbury Center South 220 South Sixth Street, Suite 600 Minneapolis. MN 55402-4501 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. that the time for response to any notice by the other party shall commence to run one (1) 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. ~o. Miscellaneous Governing Provisions. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legatees, representatives, successors, and assigns. This Agreement shall be cqnstrued and interpreted in accordance with the laws of the State of Minnesota. No failure on the part of a party to this Agreement to exercise, and no delay in exercising, any rights contained in the Agreement shall operate as a waiver of such .rights, nor shall any single or partial, exercise of any rights hereunder preclude any other pr further exercise of such rights. or th:e exercise of any other right. The remedies provided in this Agreement are cumulative and not exclusive of any other remedy provided by law or equity. All terms and words used in this Agreement shall be construed to include any other number and any other gender as the context or sense of this Agreement or of any paragraph of this Agreement may require as if such terms or words had been fully and properly written in the appropriate number and gender. Any exhibits to this Agreement are a part of this Agreement. Captions are provided for convenience and ease of reference only and do not affect or modify the terms of any of the provisions of this Agreement. All of the provisions of this Agreement are separable, so if any provision of this Agreement is held to be ineffective by a court of competent jurisdiction, the remaining provisions of this Agrl?ement shall remain in full force and effect unless the invalidated provision is so fundamental to this Agreementthat the remaining provisions do not reflect the parties' intent. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes any and all prior Agreements and understanding between the parties with respect to the same. The terms of this Agreement have been cooperatively negotiated by and among the parties hereto, and this Agreement shall not be construed against any party hereto as its author. This Agreement may be modified only by a written instrument executed by both parties. There are no third party beneficiaries of this Agreement, intended or otherwise. Time is of the essence for each and every term of this Agreement. This Agreement -10- may be executed in counterparts and, upon execution, each counterpart shall be considered an original. IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the date first written above. SELLER: BUYER: CITY OF PRIOR LAKE By: Lorraine Borka Jack G. Haugen, Mayor By: Frank Boyles, City Manager -11- /F)G&Cfp '. G \/F)G. " / ~... ,/ r: 0- "0 ID o , 'ij " 5 Co ;' >, OJ ~ ~. -:' I") D:l N ;' E A. WSB ~ o~ ..... ..... "'v ....0 o z I I . , . I I .j . I , I , I . I . I . ~I ~I >. <I O. E-<I z. 01 ~ o E-< LINE DRAWN PARALLEL W]TH AN DISTANT 625.00' WEST OF EAST-LINE 0 THE WEST HALF I . I , I . I . I . 5~ I . I , I I . I . I I . I I I - ...-~ ...- '\ ...- i' 00.t. '\ /",.A '\ /'" ..~b?1 .~\'O. '\ /' 't)(t "'t..,1 00 \ . /' C~ l> "';'2.10' '\ . ~ ~ r' I' I -'-- PROPOSED 5' TEMPORARY CONSTRUCTION EASEMENT AREA = 6'35 SQ ft ( SORKA )' .., . o~ I'l. . .... "'v o. -0 o z EXISTING BLOG \ ... SW COR PARCEL 125.00 SS'3.12'51"E ~, 50 Olson Memorial Highway Surte 300 Minneapolis, MN 55422 ~ . _.- --- d AnocitUc:. inc. ,. ,'I; :,.\..." ~UJas. J 41:~=i-li' ~=ll'!CiI ,~ 1== ;~~ ~:J,," ~'~'h'l=:.:t: 7S~~l-'1800 FAA 7S~~1-l700 Prior Lake, l\1innesota \~ o ....- .",. . .... - ... <P . o o z I i ~- I o 2S 50 EAST LINE WEST OF THE SE I,~ , I . -I . I "2-~ . I . I . I . I \ '\ '\ ~-PROPDSED STREET. uTiLITY AND DRAINAGE AREA = 7958 sq ft ~ "'0 :>0 .... . ...0 . 0 0'" o z WSB Project No, 1283-002 Date: NOVl!mb~; /,2001 Revised Date: Feburary 7, 2002 Parcel Number 6 EXHIBIT "B" PERMITTED ENCUMBRANCES 1. Covenants, conditions, easements, restrictions, and reservations of record approved in writing by Buyer. 2. Real estate taxes not due and payable.