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HomeMy WebLinkAboutRock Creek PA REAL ESTATE PURCHASE AGREEMENT THIS AGREEMENT ("Agreement") made and entered into this lo~ day of , 2006, by and between ROCK CREEK DESIGNERS & BUILDERS, LLC, a cipal corporation, whose address is 16817 Duluth Avenue, Prior Lake, Minnesota 55372 (referr to herein as "Buyer"), and the CITY OF PRIOR LAKE, a Minnesota municipal corporation, whose address is 16200 Eagle Creek Avenue SE, Prior Lake, MN 55372 (referred to herein as "Seller"). IN CONSIDERATION of the mutual covenants and agreements herein, it is hereby mutually agreed by Seller and Buyer as follows: SECTION 1. SALE AND PURCHASE OF LAND 1.1) Seller shall sell to Buyer and Buyer shall purchase from Seller, upon the terms and conditions contained herein and in that certain Agreement Regarding the Purchase of City-Owned Property dated October 17, 2005 and that certain Development Agreement dated October 17, 2005 and attached hereto and incorporated herein as Exhibit A (hereinafter collectively referred to as the "Purchase Agreement"), the following property: 1.1.1) The vacant, unimproved land in Scott County, Minnesota, legally described as follows and incorporated herein, together with all right, title and interest in and to any roads, alleys or right-of-ways adjoining or servicing such land, along with easements appurtenant thereto. Legal Description: Lot 8, except the Northerly 1 foot thereof, Block 3, Village of Prior Lake, Scott County, Minnesota according to the recorded plat there. Property Address: 16180 Hastings Avenue, Prior Lake, MN 55372 (hereinafter referred to as "Subject Property"). SECTION 2. PURCHASE PRICE 2.1) The purchase price for the Subject Property ("Purchase Price") shall be Two Hundred Thousand and no/100 Dollars ($200,000.00) payable by Buyer to Seller on the date of closing by certified check. SECTION 3. TITLE MATTERS 3.1) Seller shall furnish to Buyer within twenty (20) days hereof a current commitment for the issuance of a 1987/1990 AL T A Form B owner's policy of title insurance ("Commitment") issued by a Title Insurance Company acceptable to Buyer ("Title") in the amount of the Purchase Price, committing to insure that Buyer will have good and marketable title to the Subject Property, free of any and all standard and other exceptions to title, except matters to which Buyer may consent in writing. 3.2) In the event any exceptions are listed in the Commitment for title insurance other than accepted by Buyer hereunder, the Seller shall promptly cause the exception to be removed. If the Seller fails to remove the same within the time allowed for closing on the Subject Property, the Buyer (at Buyer's option) shall have the right to (a) accept the Subject Property with the exceptions, or (b) cause the 1:\Agreements\Purchase Agreements\PA - Rock Creek 2.DOC 1 exception(s) to be removed and credit Buyer's cost to remove the exception(s) against the Purchase Price. SECTION 4. CLOSING 4.1) The closing ("Closing") shall be at a location designated by Buyer, and shall occur within ten (10) days after the execution of this Agreement ("Closing Date"), or upon such other date as mutually agreed to by Buyer and Seller. 4.2) On the Closing Date, Seller shall deliver to Buyer possession of the Subject Property. 4.3) On the Closing Date, Seller shall execute and deliver to Buyer: 4.3.1) A duly executed Warranty Deed, subject to the exceptions consented to by Buyer in writing; 4.3.2) A customary affidavit that there are no unsatisfied judgments of record with respect to the Subject Property, no actions pending in any state or federal courts, no tax liens, and no bankruptcy proceeding filed against Seller, and no labor or materials have been furnished to the Subject Property for which payment has not been made, and that to the best of Seller's knowledge there are no unrecorded interests relating to the Subject Property; and 4.3.3) A certificate on a form acceptable to Buyer that all of the covenants, representations and warranties of Seller as set forth in Section 5 are true and correct as of the Closing Date. 4.3.4) The Abstract of Title to the Subject Property, if the Subject Property is Abstract property and the Abstract is in Seller's possession or control. 4.3.5) Well Certificate. If there is a well located on the Subject Property, a Well Disclosure Certificate signed by Seller in the form required by law. 4.4) Seller shall pay at Closing all general real estate taxes levied against the Subject Property due and payable for all years prior to the year of Closing, the balance of all special assessments levied or pending against the Subject Property as of the Closing Date, and any deferred taxes. Seller shall pay all the general real estate taxes levied against the Subject Property due and payable in the year of Closing. Buyer shall not assume the unpaid balance of any special assessments. 4.5) Seller shall pay at Closing: 4.5.1) state deed tax; 4.5.2) all costs associated with obtaining a title insurance commitment and providing an Owner's policy of title insurance, including name searches, tax searches, bankruptcy searches, and property inspection fees; 4.5.3) recording fees for corrective instruments required to remove encumbrances and place marketable title in Buyer's name; 4.5.4) one-half (1/2) of the Closing fee charged by the Title Company. 4.6) Buyer shall pay at Closing: 4.6.1) the Purchase Price as defined in Section 2 herein; 1:\Agreements\Purchase Agreements\PA - Rock Creek 2.DOC2 4.6.2) all recording fees and charges relating to the filing of the Warranty Deed; and 4.6.3) one-half (1/2) of the Closing fee charged by Title Company. SECTION 5. COVENANTS. REPRESENTATIONS AND WARRANTIES OF SELLER 5.1) Seller, as an inducement to Buyer to enter into this Agreement, and as part of the consideration therefor, represents, warrants, and covenants with Buyer and its successors and assigns that: 5.1.1) There are no leases, options, purchase Agreements, rights to redeem, tenancy Agreements, or rights of occupancy, written or verbal, and no person or party has, or will have any rights of adverse possession, regarding or arising out of the occupancy of the SUbject Property. 5.1.2) Sellers will maintain in force insurance against public liability from such risk and to such limits as in accordance with prudent business practice and suitable to the Subject Property from the date hereof to the Closing Date; 5.1.3) As part of this Agreement, Sellers shall execute the well disclosure certificate attached hereto as Exhibit "B". Sellers shall deliver the well certificate to Buyer on the date of execution of this Agreement. Sellers warrant that all statements set forth in the well certificate are true, accurate and complete to the best of Seller's knowledge. 5.1.4) Seller represents and warrants to Buyer that Seller has the requisite of power and authority to enter into this Agreement and the Seller's Closing Documents to be signed by Seller; that the execution, delivery and performance by Seller of such documents do not conflict with or result in violation of any judgment, order, or decree of any court 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. 5.1.5) Seller owns the Subject Property free and clear of all encumbrances, liens, covenants, conditions, easements, restrictions, reservations, and assessments, except those exceptions consented to by Buyer in writing. 5.1.6) Seller has received no notice of actual or threatened special assessments or reassessments of the Subject Property. 5.1.7) 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 Subject Property. 5.1.8) 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. 5.1.9) 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 Subject Property. 5.1.10) Seller certifies that Seller does not know of any private sewer system on or serving the Subject Property, nor have any been installed or removed during Seller's ownership of the Subject Property. 5.1.11) There are no encroachments or boundary line issues affecting the Subject Property. 1:\Agreements\Purchase Agreements\PA - Rock Creek 2.DOC3 5.1.12) The Subject Property abuts on and has direct vehicular access to a public road or has driveway access to public roads by permanent, irrevocable easements which will 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. 5.1.13) The Subject Property is served by the following public and private utility services: electric, gas, storm sewer, water, sanitary sewer and telephone, all of which services are available in adequate capacities to properly service the Subject Property. Seller has received no notice of actual or threatened reduction or curtailment of any utility service now supplied to the Subject Property. All utility lines reach the boundaries of the Subject Property through public rights-of-way or valid private easements, the interest of Seller in which shall be assigned by Seller to Buyer on the Closing Date. 5.1.14) Seller has no knowledge of any defects in the physical condition of the Subject Property. 5.2) The covenants, representations, and warranties contained in Section 5 shall be deemed to benefit Buyer and its successors and assigns and shall survive any termination or expiration of this Purchase Agreement or the giving of the Deed. All of Seller's covenants, representations and warranties in this Agreement shall be true as of the date hereof and of the Closing Date, and shall be a condition precedent to the performance of Buyer's obligations hereunder. If Buyer discovers that any such covenant, representation, or warranty is not true, Buyer may elect prior to closing, in addition to any of its other rights and remedies, to postpone the Closing Date up to ninety (90) days to allow time for correction. SECTION 6. COVENANTS, REPRESENTATION, WARRANTIES OF BUYER 6.1) Buyer, in order to comply with the terms of that certain Agreement Regarding the Purchase of City-Owned Property dated October 17, 2005 and that certain Development Agreement dated October 17,2005, represents, warrants, and covenants with Seller and its successors and assigns that: 6.1.1) Buyer shall construct a three-story commercial retail and office building on the Subject Property. Each floor of the building will be approximately 4,800 square feet. The architecture of the building shall be consistent with the plans and specifications submitted for building permit approval and the renderings attached hereto as Exhibit C. Construction of the building shall commence no later than May 7,2006. 6.1.2) Buyer has completed all permitting processes, including but not limited to any conditional use permit and building permit, as provided for in that certain Agreement Regarding the Purchase of City-Owned Property dated October 17, 2005, and that certain Development Agreement dated October 17, 2005. 6.1.3) Buyer acknowledges that it will re-convey the Subject Property to the Seller and the Seller shall be entitled to all of its remedies as set out in the Development Agreement if Buyer fails to commence construction, as that term is described in the Development Agreement, on or before May 7, 2006. This rescission provision shall be included in the conveyance document. 6.2) The covenants, representations, and warranties contained in Section 6 shall be deemed to benefit Seller and its successors and assigns and shall survive any termination or expiration of this Purchase Agreement, or the giving of the Deed. 1:\Agreements\Purchase Agreements\PA - Rock Creek 2.DOC4 6.3) All of Buyer's covenants, representations and warranties in this Agreement shall be true as of the date hereof and of the Closing Date, and shall be a condition precedent to the performance of Seller's obligations hereunder. SECTION 7. ENVIRONMENTAL INVESTIGATION AND SOIL CORRECTION 7.1) Buyer may perform such inspections of the Subject 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, at all reasonable times, to enter upon the Subject property to perform the Inspections. 7.2) Buyer shall give Seller not less than 48 hours' advance notice of any Inspection. Buyer shall attempt to perform all Inspections Monday through Friday during normal business hours. Seller shall be entitled to have a representative accompany Buyer's representative at all times. Buyer shall indemnify and hold Seller harmless from any damage or destruction of the Property or physical injuries occurring as a result of Buyer's acts while conducting Inspections. 7.3) The parties acknowledge that the Inspections provided for herein should provide Buyer with full and adequate opportunity to inspect the Subject Property and will thoroughly acquaint Buyer with its condition. Accordingly, if and when Closing occurs, Buyer shall take the Subject Property "As Is" and "Where Is," with all faults and defects, if any, except as specifically set forth in this Agreement. Seller has not made and does not make any representations as to the physical condition, expenses, operation or any other matter or thing affecting or related to the Subject Property, except as specifically set forth in this Agreement. Buyer agrees to indemnify and hold Seller harmless from and against and to reimburse Seller with respect to any and all claims, demands, causes of action, losses, damages, liabilities and costs (including attorneys' fees and court costs) asserted by Buyer against Seller by reason of or arising out of the physical condition or operation of the Subject Property subsequent to the Closing Date, except to the extent that the same are proven to have been incurred as a result of a breach of any representation or warranty of Seller as set forth in this Agreement. In particular, Buyer agrees to hold Seller harmless from any claims arising out of the soil conditions of the Subject Property. SECTION 8. CONTINGENCIES The obligations of Buyer and Seller under this Agreement are contingent upon each of the following: 8.1) The representations and warranties of Sellers set forth in Section 5 of this Agreement must be true as of the date of this Agreement and on the Closing Date, and Sellers shall have delivered to Buyer at Closing a certificate dated the Closing Date, signed by Sellers, certifying that such representations and warranties are true as of the Closing Date; 8.2) The representations and warranties of Buyer set forth in Section 6 of this Agreement must be true as of the date of this Agreement and on the Closing Date, and Buyer shall have delivered to Seller at Closing a certificate dated the Closing Date, signed by Buyer, certifying that such representations and warranties are true as of the Closing Date; 8.3) Buyer shall have determined on or before the Closing Date, that it is satisfied, in its sole discretion, with the results of the environmental/soil investigations and tests, and any subsequent remediation of the Subject Property. 1:\Agreements\Purchase Agreements\PA - Rock Creek 2.DOC5 8.4) Buyer is satisfied in its sole discretion with the results of any survey performed by Buyer, or verification of the Seller's Survey, the cost of which is to be assumed by Buyer. 8.5) Title shall have been found acceptable, or been made acceptable, in accordance with the requirements and terms of this Purchase Agreement. 8.6) Buyer and Seller shall have performed all of the obligations required to be performed under this Agreement, as and when required by this Purchase Agreement. 8.7) The results of the Inspections shall be satisfactory to Buyer, in Buyer's sole discretion. 8.8) Buyer shall have satisfied itself, in Buyer's sole discretion, that water and gas main, electric power lines, and sanitary and storm sewers are available at the property lines and adequate for Buyer's proposed use of the Subject Property. The contingencies set forth in Sections 8.3 through 8.8 shall remain in force until the Closing. Sections 8.1 and 8.2 shall survive the closing pursuant to this provision and Sections 5.2 and 6.2 herein. In the event Buyer terminates as a result of these contingencies, neither party shall have any further rights or obligations under this Agreement, except as provided in that certain Agreement Regarding the Purchase of City-Owned Property and Development Agreement, both dated October 17, 2005. SECTION 9 MISCELLANEOUS 9.1) The covenants, representations, warranties, indemnifications and, to the extent applicable following the Closing, obligations, made by Seller and Buyer shall survive the Closing of this transaction. 9.2) Any notice, demand, or request which may be permitted, required or desired to be given in connection herewith shall be in writing and sent by certified mail, hand delivery, overnight mail service such as Federal Express, or Western Union telegram or other form of telegraphic communication, directed to Sellers or Buyer. Any notice shall be deemed effective when delivered to the party to whom it is directed. Unless other addresses are given in writing, notices shall be sent to Sellers or Buyer at the applicable addresses stated on the first page of this Agreement. 9.3) Time shall be of the essence in this Agreement. Where any date or time prescribed by this Agreement falls on a Saturday, Sunday or statutory holiday, such date or time shall automatically be extended to the next normal business day. 9.4) Each party hereto shall promptly, on the request of the other party, have acknowledged and delivered to the other party any and all further instruments and assurances reasonably requested or appropriate to evidence or give effect to the provisions of this Agreement. 9.5) This Purchase Agreement, including that certain Agreement Regarding the Purchase if City- Owned Property and Development Agreement described herein and incorporated as Exhibit A, represents the entire Agreement of the parties with respect to the Subject Property. No representations, warranties, inducements, or oral Agreements have been made by any of the parties, except as expressly set forth herein, or in other contemporaneous written Agreements. This Purchase Agreement may not be changed, modified or rescinded, except by a written Agreement signed by both parties hereto. 9.6) If Buyer or Seller defaults under any of the terms hereof, the remedies available to either party shall be as provided in the Agreement Regarding the Purchase if City-Owned Property and 1:\Agreements\Purchase Agreements\PA - Rock Creek 2.DOC6 Development Agreement, both of which are dated October 17, 2005 and previously incorporated herein as Exhibit A. 9.7) If any provision of this Agreement is declared void or unenforceable, such provision shall be deemed severed from this Agreement, which shall otherwise remain in full force and effect. 9.8) Failure of any party to exercise any right or option arising out of a breach of this Agreement shall not be deemed a waiver of any right or option with respect to any subsequent or different breach, or the continuance of any existing breach. 9.9) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns. 9.10) This Agreement shall be construed in accordance with the laws of the State of Minnesota. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. By: BUYER: ROCK CREEK DESIGNERS SELLER: CITY OF PRIOR LAKE By: STATE OF MINNESOTA ) )ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this (PM day of ~ G )., ()olo ,by Jack G. Haugen and by Frank Boyles, respectively the Mayor and City Manage CITY OF PRIOR LAKE, a Minnesota municipal corporation, on behalf of the corporation and p to the authority granted by its City Council. Cl~~ Notary Public e CHARLOTTE R. GREEN . NOTARY PUBLIC. MINNESOTA <. My CommisSiOn Expires Jan. 31, 2010 1:\Agreements\Purchase Agreements\PA - Rock Creek 2.DOC7 STATE OF MINNESOTA ) )ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this (; da of h/'ru ~ ' ~ ,by Daniel P. Schaefer, President, of Rock Creek Designe & Builders, LLC, a Minnesota Limited Liability Corporation, on its behalf. e KELLYMEYER NOrMYIUUC-IIIIE8OTA _VI .. -......".2010 This Instrument drafted by: CITY OF PRIOR LAKE 16200 Eagle Creek Avenue SE Prior Lake, MN 55372 Telephone: (952) 447-4230 1:\Agreements\Purchase Agreements\PA - Rock Creek 2.DOCB EXHIBIT "A" Agreement Regarding the Purchase of City-Owned Property and Development Agreement 1:\Agreements\Purchase Agreements\PA - Rock Creek 2.DOCg