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1d. Approve Purchase Agreement, Pioneer Pass Park 101 1 MEMORANDUM TO: Todd Gerhardt, City Manager CITY FROM: Todd Hoffman, Park and Recreation Director CHANHASSEN DATE: November 8, 2010 0 7700 Market Boulevard SUBJ: Request for Approval of Purchase Agreement PO Box 147 Pioneer Pass Neighborhood Park Chanhassen, MN 55317 PROPOSED MOTION: Administration Phone: 952.227.1100 "The City Council approves the Purchase Agreement for Pioneer Pass Fax: 952,227,1110 Neighborhood Park." Building Inspections Phone: 952.227.1180 Approval requires a simple majority vote of the City Council. Fax: 952.227.1190 BACKGROUND Engineering Phone: 952227.1160 On September 13, 2010, the Chanhassen City Council approved the final plat for the first Fax: 952.227.1170 phase of Pioneer Pass. The development contract for Pioneer Pass 1st Addition requires Finance the transfer of 8.71 acres of land (Outlot E) to the City of Chanhassen for use as a public Phone: 952.227.1140 park. This transfer of property is being accomplished through the dedication of 5.2 acres Fax: 952.227.1110 of land and ponding area and the cash purchase of 3.51 acres of land for $289,920.74. The land value is based on the price Ryland Homes is paying for the property owned by Park &Recreation the Peterson - Jacques Farm Land Company, LLC. The successful transfer of Outlot E to Phone: 952.227.1120 Fax: 952.227.1110 the City of Chanhassen satisfies all park dedication and park fee requirements for the 94 single - family lots proposed as part of Pioneer Pass. Recreation Center 2310 Coulter Boulevard PIONEER PASS PA= Phone: 952.227.1400 INSET A Fax: 952.227.1404 =_____ Planning & Natural Resources ::::-.E.-, .. N,,_ Phone: 952.227.1130 `6 4 /� - - -. - -._ Fax: 952.227.1110 . y Bluff (ie kDssve — Public Works - 1591 Park Road Phone: 952.227.1300 3 Fax: 952.227.1310 , , ',AL E ti s,, Senior Center f .. Phone: 952.227.1125 Fax: 952.227.1110 RECOMMENDATION Web Site www.ei.chanhassen.mn.us It is recommended that the City Council approve the attached Purchase Agreement. g: \park \th \pioneer pass park \cc memo park purchase agreement.doc Chanhassen is a Community for Life - Providing for Today and Planning for Tomorrow VACANT LAND PURCHASE AGREEMENT 1. PARTIES. This Purchase Agreement is made on day of , 2010, by and between the CITY OF CHANHASSEN, a Minnesota municipal corporation, located at 7700 Market Boulevard, P.O. Box 147, Chanhassen, MN 55317 ( "Buyer "), and THE RYLAND GROUP, INC., a Maryland corporation, 7599 Anagram Drive, Eden Prairie, MN 66344 ( "Seller "). 2. OFFER/ACCEPTANCE. Buyer offers to purchase and Seller agrees to sell all that certain real property located in the City of Chanhassen, County of Carver, State of Minnesota, legally described as provided in Exhibit A attached hereto and made a part hereof ( "Subject Property"), on the terms and subject to the conditions set forth in this Agreement. 3. PRICE AND TERMS. The price for the real property included in this sale is Two Hundred Eighty -Nine Thousand Nine Hundred Twenty and 74/100 Dollars ($289,920.74) which shall be payable by Buyer to Seller in cash on the Date of Closing. B. Seller and Buyer agree that the size of the Subject Property is approximately 8.709 acres, consisting of approximately 5.2 acres of park dedication and ponding area, in satisfaction of the required park land dedication and ponding pursuant to the terms of the Development Contract between the Seller and Buyer for Pioneer Pass subdivision, and 3.51 acres of additional park land to be acquired by the City in accordance with the terms of this Agreement. Upon receipt of a final survey or plat, the total acreage of the Subject Property shall be determined by Seller and Buyer. Upon such determination, the purchase prices,shall be adjusted to comply based on a price of $82,598.50 per acre (excluding the dedicated portion of the Subject Property). 4. DEED/MARKETABLE TITLE. Upon performance by Buyer, Seller shall execute and deliver a Limited Warranty Deed conveying marketable title of record, subject to: A. Covenants, conditions, restrictions, declarations and easements of record, if any; B. Reservations of minerals or mineral rights by the State of Minnesota, if any; C. Building and zoning laws, ordinances, state and federal regulations; and D. The plat of Pioneer Pass, Carver County, State of Minnesota, according to the recorded plat thereof. 5. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. A. Prior Years' Delinquent Real Estate Taxes and Delinquent Special Assessments. Delinquent real estate taxes payable in years prior to the year of Closing and delinquent installments of special assessments certified for collection with real estate taxes payable in years prior to the year of Closing, together with penalty, interest and costs, shall be paid by Seller not later than the Date of Closing. B. Real Estate Taxes Payable in the Year of Closing. Seller and Purchaser shall prorate all general real estate taxes due and payable on the Property in the year in which the Date of Closing occurs on a per diem basis. Seller shall pay on or before the Date of Closing all levied and pending special assessments associated with the Subject Property as of the date of this Agreement. Seller shall pay penalty, interest and costs on any delinquent installment of taxes and special assessments payable in the year of Closing. The parties understand that the legal description in this Purchase Agreement is a new description requiring a subdivision or plat of the property owned by Seller. This subdivision will require that the full year's taxes be paid before the plat and deed can be recorded. C. Certified Special Assessments. All installments of special assessments certified for payment with the real estate taxes payable in the year of Closing shall be paid by Seller at Closing. D. All Other Levied Special Assessments. Seller shall pay on the Date of Closing all other special assessments levied as of the date of this Purchase Agreement. 6. SELLER'S BOUNDARY LINE, ACCESS, RESTRICTIONS AND LIEN WARRANTIES. Seller warrants that buildings on adjoining real property, if any, are entirely outside of the boundary lines of the property. Seller warrants that there has been no labor or material furnished to the property by or at the request of Seller for which payment has not been made. Seller warrants that, to its actual knowledge, there are no present violations of any restrictions relating to the use or improvement of the property. These warranties shall survive the delivery of the Limited Warranty Deed. 7. ACCESS PRIOR TO CLOSING. Upon reasonable notice to Seller, Buyer and Buyer's authorized agents shall have the right during the period from the date of this Agreement to the Date of Closing to enter in and upon the Subject Property in order to make, at Buyer's expense, surveys, measurements, soil tests and other tests that Buyer shall deem necessary. Buyer agrees to restore any resulting damage to the Subject Property and to indemnify, hold harmless and defend Seller from any and all claims by third persons of any nature whatsoever arising from Buyer's right of entry hereunder, including all actions, proceedings, demands, assessments, costs, expenses and attorneys' fees. Buyer shall not perform any invasive testing of the Subject Property without Seller's prior written consent. Seller's consent may be conditioned upon any restrictions that Seller deems necessary. Buyer shall provide to Seller a copy of any such surveys, measurements, soil tests or other tests within five (5) days after receipt. 8. POSSESSION. Seller shall deliver possession of the Subject Property not later than the actual Date of Closing. 9. TITLE INSURANCE BY SELLER. Within fifteen (15) days of the date of this Agreement, Buyer shall be responsible for obtaining title evidence and reviewing title to the Subject Property. Buyer shall be allowed twenty (20) business days after the receipt of the title commitment for examination of title and making any objections, which shall be made in writing or deemed waived. 10. TITLE CORRECTIONS AND REMEDIES. Seller shall have 120 days from receipt of Buyer's written title objections to make title marketable. Upon receipt of Buyer's title objections, Seller shall, within ten (10) business days, notify Buyer of Seller's intention to make title 152803v4 2 marketable within the 120 day period. Pending correction of title, all payments required herein and the closing shall be postponed; however, liens or encumbrances for liquidated amounts which can be released by payment or escrow from proceeds of closing shall not delay the closing. 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 proceeds in good faith to make title marketable but the 120 days period expires without title being made marketable, Buyer may declare this Purchase Agreement null and void by notice to Seller, neither party shall be liable for damages hereunder to the other, and earnest money shall be refunded to Buyer. C. If Seller does not give notice of intention to make title marketable, or if notice is given but the 120 day period expires without title being made marketable due to Seller's failure to proceed in good faith, Buyer may (a) Undertake proceedings to correct the objections to title, at Buyer's cost and expense; or (b) Rescind this Purchase Agreement by notice as provided herein, in which case the Purchase Agreement shall be null and void and all earnest money paid shall be refunded to Buyer. D. If title is marketable, or is made marketable as provided herein, and Buyer defaults in any of the agreements herein, Seller's sole remedy is to cancel this contract 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's exclusive remedy is rescission of this Purchase Agreement by notice as provided herein. If any objection is so made, Seller shall have ten (10) business days from receipt of Buyer's written title objections to notify Buyer of Seller's intention to make title marketable within one hundred twenty (120) days from Seller's receipt of such written objection. If notice is given, payments hereunder required shall be postponed pending correction of title, but upon correction of title and within ten (10) days after written notice to Buyer, the parties shall perform this Agreement according to its terms. If no such notice is given or if notice is given but title is not corrected within the time provided for, the Buyer (at Buyer's option) shall have the right to: (a) terminate this Agreement; or (b) cause the exception(s) to be removed and credit Buyer's cost to remove the exception(s) against the Purchase Price. 11. NOTICES. All notices required herein shall be in writing and delivered personally or mailed to the address as shown at Paragraph 1, above and if mailed, are effective as of the date of mailing. 152803v4 3 12. MINNESOTA LAW. This contract shall be governed by the laws of the State of Minnesota. 13. WELL DISCLOSURE. [Check one of the following: XX Seller certifies that Seller does not know of any wells on the Subject Property. Wells on the Subject Property are disclosed by Seller on the attached Well Disclosure form. 14. DISCLOSURE OF INDIVIDUAL ON -SITE SEWAGE TREATMENT SYSTEM. [Check one of the following: J XX Seller certifies that Seller does not know of any individual on -site sewage treatment systems on the Subject Property. Individual on -site sewage treatment systems on the Subject Property are disclosed by Seller on the attached Disclosure form. 15. SELLER'S COVENANTS, REPRESENTATIONS AND WARRANTIES. A. Seller as part of the consideration therefore, represents, warrants, and covenants with Buyer and its successors and assigns that: 1. Seller warrants and represents to Buyer that, to Seller's actual knowledge, without investigation, no entity or person has, at any time: a) "released" or actively or passively consented to the "release" or "threatened release" of any Hazardous Substance (as defined below) from any "facility" or "vessel" located on or used in connection with the Subject Property or adjacent tracts in violation of applicable laws; or b) taken any action in "response" to a "release" in connection with the Subject Property or adjacent tracts; or c) otherwise engaged in any activity or omitted to take any action which could subject Seller or Buyer to claims for intentional or negligent torts, strict or absolute liability, either pursuant to statute or common law, in connection with Hazardous Substances (as defined below) located in or on the Subject Property or adjacent tracts, including the generating, transporting, treating, storage, or manufacture of any Hazardous Substance (as defined below) in violation of applicable law. The terms set within quotation marks above shall have the meaning given to them in the Comprehensive Environmental Response and Liability Act, 42 U.S.C. Sec. 9601 et seq., as amended ( "CERCLA ") and any state environmental laws. 2. Seller has the present full authority and power to execute this Agreement and to close the sale of the Subject Property. B. 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 cancel this Agreement, or Buyer may postpone the Closing Date up to ninety (90) days to allow time for correction. If Buyer elects to proceed with the Closing following such discovery, Buyer shall be deemed to 152803v4 4 have waived its rights to assert a claim against Seller arising from the inaccuracy or untruthfulness of any such covenant, representation, or warranty. C. PROTECTED HISTORICAL SITES. [Select either (1) or (2) below.] Seller represents that Seller does not know if there are historical, native American, or archeological materials on or in the subject property that might be protected by law. XX Seller represents that, to its actual knowledge, the property does not have any American Indian burial grounds, other human burial grounds, ceremonial earthworks, historical materials, and/or other archeological sites that are protected by federal or state law. Buyer's obligation to close is contingent upon Buyer determining to Buyer's satisfaction that the property does not have any American Indian burial grounds, other human burial grounds, ceremonial earthworks, historical materials, and /or other archeological sites that are protected by federal or state law. 16. SELLER'S AFFIDAVIT. At Closing, Seller shall supplement the warranties and representations in this Purchase Agreement by executing and delivering a Minnesota Uniform Conveyancing Blank [Form No. 116 -M, 117 -M, or 118 -M] Affidavit of Seller. 17. CLOSING. The closing (the "Closing ") shall be at a location designated by Buyer, and shall occur simultaneous with the filing of the plat for Pioneer Pass ( "Closing Date" or "Date of Closing "). Unless otherwise agreed by the parties in writing, in the event that any of the contingencies provided for in this Agreement are not satisfied prior to December 31, 2011 this Agreement shall be null and void and of no further force and effect. At closing, Seller and Buyer shall disclose their Social Security Numbers or Federal Tax Identification Numbers for the purposes of completing state and federal tax forms. 18. CLOSING DOCUMENTS. A. At the Closing, Seller shall execute and/or deliver to Buyer the following (collectively the "Closing Documents "): (1) Limited Warranty Deed. A Limited Warranty Deed in recordable form and reasonably satisfactory to Buyer, which shall include the following well representations: "Seller certifies that the Seller does not know of any wells on the described Subject Property." (2) Seller's Affidavit. A standard form affidavit by Seller indicating that on the date of Closing there are no outstanding, unsatisfied judgments, tax liens or bankrupt- cies against or involving Seller or the Subject Property; that there has been no skill, labor or material furnished to the Subject 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 Subject Property. (3) Non - Foreign Person Certification. A certification in form and content satisfactory to the parties hereto and their counsel, properly executed by Seller, containing such information as shall be required by the Internal Revenue Code, and the regulations issued thereunder, in order to establish that Seller is not a "foreign person" as defined in §14450)(3) of such Code and such regulations. 152803v4 5 (4) Storage Tanks. If required, an affidavit with respect to storage tanks pursuant to Minn. Stat. § 116.48. (5) Well Certificate. If there is a well located on the Subject Property, a well disclosure certificate in form and substance true to form for recording. (6) Certification. A certification that the representations and/or warranties made by Seller are materially the same as were in existence on the date of this Agreement or noting any changes thereto; and (7) Other Documents. All other documents reasonably determined by either party and the title insurance company to be necessary to transfer and provide title insurance for the Subject Property. B. At the Closing, Buyer shall execute and deliver to Seller the following: (1) All documents reasonably determined by either party or the title insurance company to be necessary to provide title insurance for the Subject Property; (2) Payment of the Purchase Price. 19. CLOSING COSTS. The costs relating to the closing of this transaction shall be paid as follows: A. Buyer shall pay: (1) Recording fee and conservation fee attributable to the Warranty Deed; (2) One -half of the closing fee charged by the Title Company; (3) The premium for owner's title insurance, including survey coverage; B. Seller shall pay: (1) State deed tax; (2) Costs associated with subdivision and platting of the Subject Property and any other additional property; (3) All costs of obtaining a title insurance commitment; (4) Recording fees for all documents determined to be necessary to transfer marketable title to the Buyer; (5) One -half of the closing fee charged by the Title Company. 20. CONTINGENCIES AND ADDITIONAL TERMS. A. The Buyer's obligations under this Agreement are expressly contingent upon Buyer's satisfaction with each of the following prior to Closing: (1) Buyer determining on or before the Closing Date, that it is satisfied, in its sole discretion, with the results of matters disclosed by a survey, Phase I Environmental Audit or by any environmental /engineering investigation or testing of the Subject Property performed by Buyer or Buyer's agent. By executing this Agreement, Seller hereby authorize Buyer to enter upon the Subject Property at reasonable times to conduct the investigations and /or tests described herein. Buyer shall be solely responsible for all environmental tests and shall hold Seller harmless from any such costs and shall indemnify Seller for breach of this provision including reasonable attorneys' fees. Seller shall be responsible for all costs associated with the plat and/or survey of the Subject Property. 152803v4 6 (2) Seller recording a plat of the Subject Property simultaneously with the closing of this Agreement that provides an outlot for the park property to be conveyed to the City consisting of approximately 8.709; (3) Buyer and Seller entering into a Development Contract that provides for grading of the Subject Property consistent with the City of Chanhassen Pioneer Pass Park Grading Plan in 2 phases, beginning with the north 1 /2 of the Subject Property and completion of the south 1 /2 of the Subject Property with final platting of the 46 residential lot within the Pioneer Pass development. (4) Seller providing to Buyer within 10 days of the execution of this Agreement, true and correct copies of all existing environmental assessment reports, soil reports and results of all soil tests and environmental audits, surveys, permits, licenses, leases, and complete copies of all contracts currently affecting the Property readily available or in the possession of Seller, and notices received within the last 90 days from the city, state or other governmental authorities pertaining to uncured violations of any law, ordinance or regulation. The contingencies set forth in this section are for the sole and exclusive benefit of Purchaser, and Purchaser shall have the right to waive the contingencies by giving notice to Seller. B. Buyer represents, warrants, and covenants with Seller and its successors and assigns that Buyer has the present full authority and power to execute this Agreement and to close the sale of the Subject Property. 21. ADDENDA. Attached are no addenda which are made a part of this Purchase Agreement. 22. TIME IS OF THE ESSENCE. Time is of the essence for all provisions of this Purchase Agreement. 23. MULTIPLE ORIGINALS. Seller and Buyer have signed [number] originals of this Purchase Agreement. I agree to buy the Subject Property for the price and terms and conditions set forth above. BUYER: SELLER: CITY OF CHANHASSEN THE RY A /1/ D G P, INC. By: By: , Mayor M hael W. DeVoe, Operational Vice President And: Todd Gerhardt, City Manager 152803v4 7 EXHIBIT A TO VACANT LAND PURCHASE AGREEMENT Legal Description of Subject Property: The portion of the property legally described below to be platted as Outlot E, Pioneer Pass, Carver County, Minnesota, consisting of approximately 8.709 acres: Northeast Quarter of the Northeast Quarter, Section 27, Township 116, Range 23, Carver County, Minnesota AND That part of the Southeast Quarter of the Northeast Quarter, Section 27, Township 116, Range 23, Carver County, Minnesota, lying northerly of MINNESOTA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY PLAT NO. 10 -43, according to the recorded plat thereof, Carver County, Minnesota. 5580996v2 152803v4 8