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HomeMy WebLinkAbout3C - City Code Section 6-10-1 Consent Agenda Item # 3 (c) Lommen, Nelson, Cole & Stageberg, RA. AITORNEYS AT LAW LEONARD T. JUSTER HENRY H. FEIKEMA V. OWEN NI!:UION ALVIN S. MALMON RONALD 1. HASKVITZ PHIWP A. COLI!: STEPHEN A. KRUPP MARK N. STAGEBERG ROGER V. STAGEBERG GLENN R. KESSEL THOMAS E. PETERSON THOMAS R. JACOBSON t RICHARD A. LIND JOHN M. GIBLIN J. a-JRISTOPHER CUNEO niOMAS D. JENSEN TED E. SULLIVAN ROBYN N. MOSCHET THOMASF.DOUGHERTY STACEY A. DeKALB KAY NORD HUNT RICHARD L. PLAGENS I'Al'L C. i'ETERSON MICHAEL P. SHROYER 1800 IDS CEN1l!R 80 SOlTIH E.IGtml S1REET . MINNEAPOus. MINNESOTA 55402 TELEPHONE (612) 3>>-8131 Min_ WATS Line 1-800-752-4297 FAX (612) 339-aI64 336-9338 JOEL W. LAVINTMAN niOMAS J. NIEMIEC t RAUL A. GASTEAZORO. JR. EHRICH L. KOCH TODD J. THUN JUDY L. HALLETT JAMES R. ANDREEN SHERR I D. ULLAND MARGIE R. BODAS JAMES M. LOCKHART REID R. UNDQUISf KAniRYN Ii. DAVIS JAMES C. SEARLS DAVID J. DOSEDEL WENDY A. WEBER GAR Y D. PONTIUS DEBRA L. McBRIDE CRAIG D. KLAUSING WYMAN SMrrn (Retiffil) INCLUDING niE PRAC11CE OF: SMrm, JUSIER, FEIKEMA, MALMON & HASKVITZ, CHARTERED WRITER'S DIRECT DIAL NUMBER: January 29, 1990 \\,.cryn:ain ()I'f'!~ JOHN P. LOMMEN (1927.1988) SOlTIHSIDE OFFICE PLAZA 1810 CRESf VJEW DRIVE SUITE 2A HUDSON, WISCONSIN 54016 Mr. David Unmacht City of Prior Lake P. O. Box 359 Prior Lake, Minnesota 55372 Re: McDonald/City of Prior Lake Purchase Agreement TELEPHONE: (715) 386-8217 lWIN CITY UNE: (612) 43(HlO8S FAX: (715) 386-8219 Dear Dave: Prior Lake City Code Section 6-10-1 requires that conveyances of land within the City of Prior Lake shall not be made by a metes and bounds description. Prior Lake City Code Section 6-l0-2 authorizes the City Council to waive those restrictions in a situation where an unnecessary hardship will exist in order to comply with the requirement and the failure to comply will not interfere with the purpose of the ordinance. Paul Wermerskirchen, County Recorder for Scott County, has reviewed this matter. He is in agreement that the portion of the property being purchased by the City from Mr. McDonald as described in the Purchase Agreement will not create ~ny remnants. He also stated that the property can be transferred of record through the Scott County Recorder's office with the description contained in the Purchase Agreement without the necessity of a new registered land survey being prepared for that portion. It is our opinion that the facts of this matter, in settlement of the current litigation between Mr. McDonald, the City and Scott County, create such a hardship. It would seem practical and prudent to save the costs of such a survey. Lommen, Nelson, Cole & Stage berg, P.A. Mr. David Unmacht January 29, 1990 Page 2 Therefore, we have prepared and enclose a proposed Resolution to be considered by the City Council waiving the requirements of City Code Section 6-10-1. Very truly yours, ~~EN, NEL;}rr.-POLE I lj~ \ '-l~ Glenn R. Kessel GRK:sjf Ene. & STAGEBERG, P.A. RESOLUTION 90--29 RESOLUTION WAIVING THE REQUIREMENTS OF PRIOR LAKE CITY CODE 6-10-1 MOTION BY SECONDED BY WHEREAS, William W. McDonald is the fee owner of the following described real property located in the City of Prior Lake, Scott County, Minnesota: Tract A, Registered Land Survey No. 116, Files of the Registrar of Titles, Scott County, Minnesota (the "Property"), and WHEREAS, a portion of said Property was taken pursuant to a condemnation action for right-of-way purposes for County Road #21, and WHEREAS, the City of Prior Lake and William W. McDonald have entered into a Purchase Agreement dated December , 1989, whereby the City has agreed to purchase a portion-of the Property for park purposes, and WHEREAS, because of the condemnation of a portion of said property and subsequent sale of a portion of that Property for ~ar~ ~urposes to the City, an unnecessary hardship would exist 1f sa~d Property could not be conveyed by a metes and bounds description, and WHEREAS, the Scott County Recorder, pro~osed deed, consents to the transfer ord~nance requirements of City of Prior and that said waiver will not interfere ordinance, after review of the and waiver of the Lake City Code 6-10-1 with the purpose of said NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Prior Lake hereby waives compliance by William W. McDonald and the City of Prior Lake with the restrictions of Prior Lake City Code 6-10-1 such that the conveyance from William W. McDonald to the City of Prior Lake may be fil~d with the Scott County Recorder's office. Passed and adopted this day of YES , HQ Andren Fitzgerald Larson Scott White Andren Fitzgerald Larson Scott White (Seal) David J. Unmacht City Manager 4629 Dakota St. S.E., Prior Lake, Minnesota 5537gi,tFh9(.t1~l'lIilc7>-Jt'23GL / ~Fax (612) 447-4245 ,. " PURCHASE AGREEMENT THIS AGREEMENT, made and entered into this AI~day ot December, 1989i by and between William W. McDonald (herei~~ referred to as "Sel er"t, and the City of Prior Lake, a Minn.sota municipal corporat on (hereinatter reterred to .. "Buyer"). WITNESSETH: In consideration of the representations, warrantie., covenant. and agreement. hereinafter contained, and intending to be bound legally thereby, IT IS AGREED MUTUALLY AS FOLLOWS: 1. Sale and Purchase. Subject to the terms, conditions, representations and warranties set forth herein, Seller agrees to sell to Buyer, and Buyer agrees to purchase trom Seller, the real property described on Exhibit "A" attached hereto and incorporated herein (hereinafter the "Real Property") together with all site plans, surveys, geological and soil stUdIes, environmental reports ~nd reports and other similar plans and diagrams (hereinatter ~llectively reterred to as the "Personal Property"). The Real ~operty and the Personal Property are hereinatter collectively -~ferred to as the "Property". 2. Purchase Price and paStent. The total purchase price shall be the sum of $14,500.00, paya le as follows, at the sole option of Bu~'er: $14,500.00 by a check drawn drawn on the City of Prior Lake in favor of Seller and delivered to Seller at closing, or $7,250.00 by a check drawn on the City of Prior Lake in favor of Seller and delivered to Seller at closing and $7,250.00 together with interest at the rate of lOt per annum payable on or betore January 4, 1991. 3. ReDresentations and Warranti~s ot Seller. Seller makes the following representations and warranties to Buyer, which shall be true when made and at the time of closing as it such representations ~~j warranties were made at such time and shall survive the closing: a. Marketabilitx. Seller has and will have at closing good and marketable title to the Real Property, free and clear of all liens and encumbrances, subject only to the following exceptions: i. Building and zonIng laws, ordinances state and federal regulations, which do not prevent or lImit the use of the Property which Buyer intend., i1. Restrictions relating to use or improvement of the Property without effective forfeiture provisIons, iii. Reservation ot any minerals or mineral rights to the State of Minnesota, and iv. Utility and drainage easements which do not interfere with present improvements or improvements contemplated by Buyer. ., Within 20 day. att.r .xecution ot this A9r....nt by the parti.s, Seller will deliver to Buyer an Abstract of Titl. or ~egistered Property Abstract to the Real Prop.rty to b. .old and purchased hereunder! which Abstract .hall be properly certified to date, including ~h. proper ..arch.. covering bankruptci.., state and federal tax llens. Buyer shall be allowed 20 day. atter receipt ot such Abstract tor examination and the .aking of any objections to the marketability ot title, such objection. to be made in writinq or deemed to be waiv.d. If any objections are so made, Seller shall be allowed 40 days to make such title marketable. If such defect. are cured within said 40 day period, Buyer shall be notitied in writing ot the curing ot such detect. ana Buyer then ahall be allowed 20 days atter receipt ot such notice to perfor. in accordance with the terms ot this Agreement. Seller covenants and agrees to cure such detects; however, it title is not marketable and shall not be made so within 40 days from the date ot written objections thereto as above provided, Buyer at its option may declare this Agreement to be null and void and neither party shall be liable for damages hereunder to the other; and any monies theretofore paid by Buyer shall be refunded to Buyer. b. Leases. There are no leases to which the Property is subject, except as have been disclosed to Buyer in writing and approved by Buyer. c. Claims. There are no claims which may be made against Seller and/or the Property being sold hereunder by vendors of services or materials which would constitute a lien against the Property. d. Contracts for Dee4. It unrecorded, Seller shall cause to be placed of record, at its sole cost and expense, all . contracts for deed, assignments or other documents ot conveyance necessary to establish a clear chain ot title fro. Seller to the fee owner of the Real Property. e. biver,. ,. ~e,.J>&rti.a will cooperate.to obtain ,~~..Y waivers wbl.ch llay'M- required pursuant to Prior Lake City-Code SectIon 6-10-2. -....., f. aintena ce ot ro ert endi C10s . Seller agrees that the property to be sold an purchased hereunder wIll not be further encumbered. Seller shall not enter into any agreements or incur any expenses relating to the Property prior to closing without the written consent of Buyer. g. Other Matters. Seller is not now aware ot and haa not received notice of any governmental regulations or rules affecting the PrOP6~~y sold hereunder. There are no actions, investigations or proceedIngs of any kind pendIng or threatened against the Property being sold hereunder or against Seller which would affect the Property. h. fazardous Material,. Seller has no knowledge that the Property s in viol at on ot any tederal, state or local laws, ordInances or requlations relating to industrial hygiene or to -2- .. ," the environmental condition. on, under or about the Real Property, including, but not liaited to! soil and ground water conditions. During ~he time in which Se ler owned the Pro~rty, neither Seller nor any third party, to the be.t ot Seller. knowledge, haa used, generateai manutactured, .tored or disposed of, on, under or about the Rea Property or transported to or from the Real Property any flammable explosive., radioactive materials, hazardous wastes, toxic substances, or related materials. i. Ctpacity. Seller has the capacity and full power and authorizat on to enter into and carry out this Agreement and the transactions contemplated hereby. j. Soil CO~dition. Seller has no knowledge of any adverse geological or so 1 conditions affecting the Real Property. k. Flood Hazard. The Real Property Is not located within an area of unusual rIsk with respect to flood or other natural disaster hazard, such as earth movement or subsidence or rising ground water. l. Foreian peison. Seller is not a "foreign person" within the meaning of Sect on 1445 of the Internal Revenue Code of 1986, as amended. .. Untrue statemenjs. Seller has knowingly made no untrue statement or representat on in connection with this Agreement. Seller has not knowingly failed to state or disclose any material fact in connection with the transactions contemplated by this Agreement. 4. Taxes and SPlcial Assessment_. PrIor to and at the ti.e of the closing, Seller will pay all real property taxes for. all years up to and including those due and payable in the year 1989. Seller agrees to enter into any agreements and execute any document. necessary to place and/or transfer any special assessments levied or pending against the Property to adjacent property owned by Seller. 5. tommissions. Seller and Buyer represent and warrant that each will indemnity and hold the other harmless trom and against any loss, liability and damage, fee or charge, so far a8 any thereof arises by reason of real estate brokerage services alleged to have been rendered to, at the instance of, or agreed to by such party. 6. Costs. a. Seller shall pay the fOllowing: i. All recording tees, deed tax and tangible taxes L~d similar costs relating to the transfer of the Property pursuant hereto, recording fees for satisfaction of mortgages and other documents necessary to be recorded to make the title marketable. ii. Costs and tees ot Seller's counsel, if any. -3- a~. 111. Cost. and fee. of Seller'. real e.tate broker, If 7. 0 d 'Jreement are ~r within the ~onditions: iv. Real estate taxes due and payable in the year 1989. b. Buyer shall pay the following: i. Costs ot physical inspection ot the Property. ii. Costs and fees of Buyer'. counsel. Iii. Costs of recording a contract for deed, if any. · All obligations of Buyer under this ulfillment, prior to or at the closing, periods, of each of the following a. The representations and warranties ot Seller contained in this Agreement shall be true at the time ot closing as though such representations and warranties were made at such time. b. Marketability ot title to the Real Property and the Personal Property have been establIshed or waived pursuant to the provisions of this Agreement. c. Warranty deed (or it Buyer elect. to purchase bI an installment sale, a Contract tor Warranty Deed), Attidav t ot Seller and any other documents necessary to establish marketability ot title have been delivered, in torm reasonably acceptable to Buyer'. coun.el. d. There being no adverse change in. the physical or financial condition ot the Property prior to closing. Any and all of the toregoing condItions are for the sole benetIt ot Buyer and may be waived, in writing, by Buyer, prior to the Closing. 8. Condemnation. In the event, prIor to closing, condemnation proceedings are commenced or threatened against the Property by any governmental bod! or other person (except the Buyer), this Agreement shall become nul and void, at Buyer's option, by Buyer givIng written notice to such eftect to Seller and tendering to Seller a quit clai. deed to the Property whereupon all monies previously paid to Seller by Buyer shall be returned to Buyer. It Buyer elects to proceed and to consummate the purchase ot the Property despite said taking, there shall be no reduction in or abatement of the purchase price, and Seller shall assign to Buyer allot Seller's right, title and interest in and to any award made or to be made in the condemnation proceeding. 9. ~. Subject to allot the terms and conditions ot this Agreement~ been complied with, the closing ot the sale and purchase contemplated herebI shall be held on January 5, 1990, at the City Hall ot the City ot Pr or Lakel or at such later date resultinq from the time periods provided here n or resultinq from the -4- unmarketabi1ity ot title and the ti.e period to correct the ...e, or on such other dati or at .uch othlr placl a. thl partie. hereto .hall .utually agree. 10. Documeyts. At closing, Seller shall execute and deliver, or ~ause to be del vered, to Buyer in fora and content reasonably acceptable to Buyer" counsel, the following: a. Warranty deed or contract for deed, at Buyer'. option, conveying the Property to Buyer. b. All other documents required to make title marketable. c. A standard form of affidavit of no jUdgments, mechanica' liens and other unrecorded interests. d. All site plans, surveys, geological and soil studies and reports and other similar plans and diagrams, it any. e. Such additional documents as might be reasonably required by Buyer to effectuate the provisions of this Agreement. 11. Possession. Ownership and possession shall be transferred effective as of the time of closing. 12. Default: Remedy. a. Title. If title is marketable or is corrected within said time and all conditions to closing have been met, and Buyer defaults in any of the agreements herein, Seller aay terminate this Agreement! time being of the essence hereof. This provision shall not depr ve either party of the right of enforcing the specific performance ot this Agreement, provided this Agreement i. not terminated and action to .enforce specific performance i. commenced within six months after such right of action arise.. In the event Buyer default. in its performance of the teras of this Agreement, and notice of cancellation i. served upon the Buyer pursuant to MIS.A. 559.21, the termination period shall be 30 days as permitted by Subd. 4 of M.S.A. 559.21. b. Other. In the event that either party fails to perform such party's obligatIons hereunder or breaches the representations or warranties hereunder, the party claiming default will make written demand for performance. In the event the defaulting party faIls to comply wIth such written demand within 10 dars after receipt, the part! giving the notice ot the default shal have the option of pursu ng it. remedies at law or in e~ity regardless of either cancellation of this transaotion or waIver of such unsatisfied condition or obligation or proceeding to Closing notwithstanding such circumstance. (any such waiver or proceeding to Closing being deemed to have been solely for the purpose of facilitating closing and thereby mitigating the damages resultIng from such breach of contract). l3. Indemnification. Seller shall indemnify, defend and hold Buyer (and any and all officers, employees and agents of Buyer) free and harmless from and against any and all claim., obligations and liability (and attorneys- fees and court cost. in connection therewith) arising out of: -5- a. any act. or omi..ion. ot Seller or Seller'. agent. prior to clo.ing, and b. any breach by Seller ot any representation or warranty set forth in this Agreement. 14. Time of the Essence. Except as otherwise provided herein, time is of the essence in connection with each and every provision of this Agreement. 15. Notices. All notices, otfers, requests and other communications fro. any ot the partie. hereto to the other shall be in writing and shall be considered to have been tully given or served if sent by first class registered or certified mail, return receipt requested, postage prepaid, to the party at the address set forth below, or to such other address as such party may hereatter designate from time to time in writing. William W. McDonald 5500 Woodcrest Drive Edina, Minnesota 55424 Bruce Grostephan, Esq. Peterson, Engberg , Peterson 700 Title Insurance Building Minneapolis, Minnesota 55401-2498 city ot Prior Lak. 4629 Dakota Street S.I. P. o. Box 359 Prior Lake, Minnesota 55372 With Copy To: Glenn R. Kessel, Isq. Lommen, Nelson,.Cole , Stageberg, P.A. 1100 TCl Tower Minneapolis, Minnesota 55402 16. Headings. The headings ot the paragraphs and subparagraphs of this Agreement are tor convenient reference only and do not form a part hereof, and in no way interpret or construe such paragraphs or subparagraphs. If to Seller: with Copy to: It to Buyer: 17. Interchangeabilitv yf Words, Joint ayd Several Liability. Words and pronouns shall be nterchangeable w th respect to gender and singular or plural, as the context or application requires. If two or more partl.s are referred to collectIvely under one designation, the liability of each shall be joint and several. 18. Parties in Interest. This Agree.ent shall be binding upon and inure to the benef t of the heirs executors, administrators successors and assigns of the respectIve parties, and the respective parties and their representatives will execute any and all instruments, releases, assiqnments and consents which may be reasonably required in order to carry out the provisions ot this Agreement. -6- '. .- 19. ~. Thi. A9re..ent contain. the entire a9reement~t:r..~ It super.ede. all prior aqreeaent., understandin9. or representation., written or oral. It .ay not be changed orally but only by an agreement in vritinq .iqned bI the party againat whom entorcement ot any waiver, chanqe, modit cation, extension or discharqe i. souqht. 20. Counterparts. Thi. Aqreement may be executed in any number ot counte~arts, each of which shall be deemed to be an oriqlnal, but all of which shall constitute one and the same instrument. SELLER:/ -'.. A d ;;~ W1ll1am . c na d BUYER: CITY OF PRIOR LAKE B ~rov.~a.\t~: y"^tt torney -7- . . I. EXHIBIT "A" LEGAL DESCRIPTION or REAL PROPERTY That part of Tract A, Registered Land Survey No. 116, Scott County, Minnesota lying southerly of the fOllowing described line: Beqinning at a point on the east line of Tract A, of said Registered Land Survey No. 116, distant 191.75 feet north of the southeast corner of said Tract AI thence southwesterly to a point on the easterly line of Tract B, of said Registered Land Survey No. 116, distant 33.35 feet southerly of the northeast corner of said Tract B, and there terminating. -8-