1o. Approve PUrchase Agreement, State Bank of Chanhassen property1 10
,TiHE CHANHASSEN
C ' -�
BANK Manager's Comments: Approval is recommended.
' October 31, 1995 DWA (11 -8 -95)
'
Mr. Donald Ashworth
City Manager
'
City of Chanhassen
690 Coulter Drive
'
Chanhassen, MN 55317
Dear Don:
'
I am happy to finally be able to deliver the signed Real Estate Purchase Agreement for the
two parcels of land that we have been negotiating . I have included two copies for you to
execute upon final approval by the City Council. Please return one to me after final
execution.
Don, it is my understanding that our attorney, Dave Spencer, has forwarded a copy to
Gary Fuchs.
If you would like me to attend the City Council meeting when the agreement is presented
for approval, please let me know. I am leaving town today and expect to be back in the
office on Monday, November 6th. Please feel free to leave word with my assistant, Murl
'
Pace, if you want me there.
I will wait to hear from you.
1
Sincerely,
Kevin P. McShane
President & CEO
' KPM/mp
Enclosures
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1 600 West 78th Street. Chanhassen, MN 55317 ■ (612) 937 -BANK
REAL ESTATE PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement ") made and entered into this day of '
October, 1995, by and between the CITY OF CHANHASSEN, a Minnesota municipal
corporation, with offices at 690 Coulter Drive, P.O. Box #147, Chanhassen, Minnesota 55317
(referred to herein as the 'Buyer "), and STATE BANK OF CHANHASSEN, a Minnesota
banking corporation, whose address is 600 West 78th Street, Chanhassen, Minnesota 55317
(the "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 hereof, the following property (all collectively referred to as the "Subject
Property "):
1.1.1 The land in the City of Chanhassen, Carver County, (the "City "),
Minnesota, legally described as Lot 2 and Lot 3, Block 2, Schneider Park, according
to the plat thereof on file with the County Recorder of Carver County, Minnesota,
together with all right, title, and interest in and to any roads or alleys adjoining or
servicing such land, rights -of -way, or easements appurtenant thereto (the "Land ");
1.1.2 All buildings, equipment, improvements and fixtures located on the
Land as of the date of Closing but excluding any fixtures, equipment and personal
property owned by tenants;
1.1.3 All rents, leases, contract rights, causes of action, permits, licenses, and
other rights relating to the Subject Property which are capable of being transferred.
1.2 Buyer shall purchase the Subject Property subject to the following restrictions,
which shall be set forth in the deed:
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Bu er /Grantee shall use the real property herein described solely for
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lawful governmental and other related public purposes and shall not
'
use or permit the use of such property, or any portion thereof, for
private commercial, industrial, residential, or other private purposes.
'
Buyer /Grantee shall not sell, lease, encumber, or otherwise convey or
' transfer such property or any portion thereof to any person or entity
except to another municipal corporation or other governmental entity
' (i) except for tenants presently in possession, and (ii) except for a
reconveyance back to Seller /Grantor or its successors and assigns in
ownership of the land lying easterly of said Lot 3, in which event the
' foregoing restrictions shall become null and void as to the portion
' reconveyed. The foregoing restrictions shall run with the land and shall
remain in effect for a period of thirty years following the date of the
deed.
SECTION 2.
PURCHASE PRICE
2.1 The purchase price for the Subject Property (the shall be Four Hundred
Fifty -five Thousand and No /100 Dollars ($455,000.00) and shall be payable by Buyer to
Seller by check on the date of Closing. The purchase price is allocated as follows: Land
' $355,000, buildings and improvements $100,000.
' SECTION 3.
TITLE MATTERS
' 3.1 Seller, at its own expense, shall furnish to Buyer within a reasonable time after
the date hereof a current commitment for the issuance of a 1987/1990 ALTA Form B
1 727976.4 2
owner's policy of title insurance (the "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 exceptions
to title, except: (a) taxes not yet due and payable, (b) building, zoning and subdivision laws,
ordinances and regulations, (e) reservations of minerals or mineral rights to the State of
Minnesota, if any, (d) roads, streets, alleys or other public ways, if any, (e) easements,
covenants, conditions and restrictions of record, if any, (f) encroachments, overlaps,
boundary line disputes, and any other matters which an accurate survey and inspection would
disclose, (g) rights of tenants in possession, and (h) matters to which Buyer may consent in
writing (collectively "Permitted Exceptions ").
3.2 In the event any exceptions other than Permitted Exceptions, are listed in the
Commitment for title insurance, upon written request of the Buyer, to be made within ten
business days after Buyer's receipt of the Commitment and otherwise deemed waived, the
Seller shall promptly use commercially reasonable efforts to cause the exceptions to be
removed. If the Seller fails to remove the exceptions so requested within the time allowed
for closing on the Subject Property, the Buyer (at Buyer's option) shall have the right to: (a)
terminate this Agreement; or (b) close the transaction and take title subject to the
exceptions.
SECTION 4.
CLOSING
4.1 The closing (the "Closing ") shall be at the offices of Seller or at a different I
location mutually designated by the parties, and shall occur within forty (40) days after the
727976.4 3 1
full execution of this Agreement but not later than December 1, 1995, (the "Closing Date ")
unless such date is extended by mutual agreement of the parties.
4.2 On the Closing Date, Seller shall deliver to Buyer possession of the Subject
Property free of any and all debris, and all personalty not included in the sale of the Subject
I Property.
4.3 On the Closing Date, Seller shall execute and deliver to Buyer:
4.3.1 A duly executed limited warranty deed; and
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4.3.2 A customary affidavit that there are no unsatisfied judgments of record,
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 at the request of Seller 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, except tenants in possession and survey matters.
4.3.3 An assignment of all leases, permits and licenses.
4.4 Seller shall pay at Closing: all the 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 against the Subject Property as of the date of this Agreement;
and any deferred taxes. Seller and Buyer shall prorate to Closing taxes due and payable in
the year of Closing. Buyer shall not assume the unpaid balance of any levied special
assessments. It is understood and agreed that, any provision of this Agreement to the
contrary notwithstanding, Seller shall have no liability for any deferred taxes or deferred
assessments under any TIF Agreement or Assessment Agreement or similar agreement
pertaining to the Subject Property with any governmental entity or taxing authority on
account of this sale or otherwise.
4.5 Seller shall pay at Closing:
1 727976.4 4
4.5.1 state deed tax;
4.5.2 all costs of obtaining and updating the abstract to the Subject Property,
including name searches, tax and assessment searches, bankruptcy searches, and other
costs necessary to obtain the title Commitment;
4.5.3 all costs and fees incurred for obtaining and recording instruments
required to place marketable title to the Subject Property in Seller's name, subject
to Permitted Exceptions; and
4.5.4 one -half of the closing fee charged by Title Company.
4.6 Buyer shall pay at Closing:
4.6.1 all recording fees and charges (except deed tax) relating to the filing
of the deed;
4.6.2 title insurance premiums; and
4.6.3 one half 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 that:
5.1.1 There are no options, purchase agreements or rights to redeem, written
or verbal, and no person or party has, or will have, any rights of adverse possession,
regarding the Subject Property;
5.1.2 Seller will maintain insurance against public liability in such amounts
as are in accordance with prudent business practice and suitable to the Subject
Property from the date hereof to the Closing Date;
and that to the best of Seller's knowledge (the term "Seller's knowledge" means the actual
or constructive knowledge of Kevin McShane, Seller's President):
5.1.3 Without investigation or inquiry of any nature whatsoever, neither
Seller, nor any entity or person has, at any time:
i. "released" or actively or passively consented to the "release" or
"threatened release" of any Hazardous Substance (as defined below)
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from any "facility" or 'vessel" located on or used in connection with the
Subject Property; or
ii. taken any action in "response" to a "release" in connection with the
Subject Property; or
iii. 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, including the generating,
transporting, treating, storage, or manufacture of any Hazardous
Substance (as defined below). 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.
"Hazardous Substances" means hazardous waste, toxic substances,
formaldehyde, urea, polychlorinated biphenyls, asbestos, petroleum,
natural gas, synthetic gas usable for fuel or mixtures thereof, any
materials related to any of the foregoing, and substances defined as
"hazardous substances ", "toxic substances ", "hazardous waste ",
"pollutant ", or "contaminant" in CERCLA, Resource Conservation and
Recovery Act as amended, 41 U.S.C. Sec. 9601 et §,e q., the Hazardous
Materials Transportation Act, 49 U.S.C. Sec. 1801 et sec . I the Clean
Water Act, 33 U.S.C. Sec. 1251 et seq., any state laws regarding
environmental matters, or any regulations promulgated pursuant to any
of the foregoing statutes.
5.1.4 Seller has not, at any time, installed, used, or removed any underground
storage tank on or in connection with the Subject Property;
5.1.5 Seller knows of no wells or septic systems on the Subject Property.
5.2 The covenants, representations, and warranties of Seller contained in this
Section 5 shall be deemed to benefit solely the Buyer. All of Seller's covenants,
representations and warranties in this Agreement shall be true as of the date hereof (and
shall be a condition precedent to the performance of Buyer's obligations hereunder) and as
of the Closing Date. If prior to Closing Buyer discovers that any such covenant,
representation, or warranty is not true, as its sole and exclusive remedy Buyer may elect
1 727976.4 6
prior to Closing, b written notice to Seller describing in detail such deficiency, to cancel t '
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Agreement, or Buyer may postpone the Closing Date up to ninety (90) days to allow time '
for correction, provided however, that Seller shall have no obligation to expend more than '
Two Thousand and No /100 ($2,000.00) Dollars to correct any claimed deficiency.
5.3 Except as expressly set forth elsewhere in this Agreement, Seller disclaims all '
warranties and representations, expressed or implied, concerning the physical condition of '
the Subject Property, its quality, its quantity and its suitability for any particular use. Buyer
acknowledges that prior to Closing it shall have had adequate opportunity to investigate the
Subject Property and to conduct tests and inquiries, and upon completion of Closing Buyer
shall be deemed to have purchased the Subject Property in its then condition, "as is" and
"where is" and subject to all faults and deficiencies, relying solely upon Buyer's own '
knowledge of and investigation of the Subject Property. Seller has made no investigations '
or inquiries whatsoever as to the presence or absence of any Hazardous Substances (as
defined above) in, on, under or about the Subject Property.
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SECTION 6. ,
CONTINGENCIES
6.1 Buver's Contingencies. The obligations of Buyer under this Agreement are '
expressly contingent upon each of the following (the "Buyer's Contingencies "): '
6.1.1 The representations and warranties of Seller set forth in Section 5 of
this Agreement must be true as of the date of this Agreement and on the Closing '
Date, and Seller shall have delivered to Buyer at Closing a certificate dated the
Closing Date, signed by Seller, certifying that such representations and warranties
remain true as of the Closing Date. '
6.1.2 Buyer shall have determined on or before the Closing Date, that it is
satisfied, in its sole discretion, with the results of and matters disclosed by any '
environmental /engineering investigation or testing of the Subject Property performed
by Buyer or Buyer's agent.
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If the Buyer's Contingencies have not been satisfied on or before the Closing Date, then
Buyer may, at Buyer's option, terminate this Agreement by giving notice to Seller on or
exclusive benefit of Buyer, and Buyer shall have the right to waive the contingencies by
before the Closing Date. The contingencies set forth in this section are for the sole and
giving notice to Seller.
6.2 Right of Entry for Survev and Tests: Seller hereby grants to Buyer, and any
responsible person designated by Buyer, the right and license to enter upon the Subject
Property during normal business hours upon not less than 24 hours notice to Seller, to
appraise and survey the Subject Property and to conduct such engineering tests as are
necessary to satisfy the foregoing contingencies; provided, however, that (i) said tests shall
be conducted so as not to damage the Subject Property and improvements and any damage
shall be promptly restored, repaired and remediated at Buyer's expense, (ii) Buyer or its
designee, before entering the Subject Property, shall furnish to Seller evidence of liability
insurance coverage, vehicle insurance coverage and workers compensation coverage with
responsible insurance carriers and with prudent limits, (iii) there shall be no material
disturbance of the tenants' uses and activities being conducted on the Subject Property, and
(iv) as additional consideration for this Agreement, Buyer shall promptly deliver to Seller
complete copies of all surveys, tests, studies and reports obtained by Buyer pertaining to the
Subject Property. Buyer hereby agrees to indemnity and hold Seller harmless from and
against any and all losses, claims, causes of action, liabilities and costs of defense incurred
by Seller arising out of the actions of Buyer and /or its designees, except to the extent due
to the negligence or willful misconduct of Seller or its agents.
1 727976.4 8
SECTION 7.
OPTION TO PURCHASE
7.1 Intent of Parties. Seller may expand its existing banking facility located at 600
West 78th Street in Chanhassen, Minnesota sometime within the next fifteen years. To be
able to expand its facility at its current location, under current City of Chanhassen
ordinances Seller will be required to provide additional vehicular parking spaces. It is
anticipated that as many as eighty (80) additional parking spaces will be needed for
maximum expansion of the current facility at its current location. The Seller had intended
to locate those additional parking spaces on the Subject Property or to incorporate the
Subject Property into the expansion project. Buyer deems it to be in the best interest of the
citizens of Chanhassen to facilitate orderly and efficient expansion of downtown business
enterprises and to create additional employment opportunities in the City. Buyer believes
that the future use of a portion of the Subject Property by the Seller for parking purposes
is not inconsistent with the Buyer's intended use of the property and, subject to the terms
and conditions set forth below, is willing to grant to Seller an option to repurchase a portion
of the Subject Property or other property hereinafter designated.
7.2 Grant of Exclusive Option. Upon closing of the sale of the Subject Property '
to Buyer, Buyer shall immediately grant to Seller the exclusive option to repurchase portions ,
of the Subject Property and /or the additional property owned or controlled by Buyer and
designated on Exhibit A in accordance with and subject to the following terms, covenants '
and conditions: 1
7.2.1 The option to repurchase shall be effective through and including
December 31, 2010. '
727976.4 9 1
7.2.2 The repurchase price of the Subject Property or other designated
property pursuant to the option shall be Six and 60/100 Dollars ($6.60) per square
foot of land purchased by Seller prior to December 31, 2000. After December 31,
2000, the per square foot repurchase price shall be $6.60 per square foot multiplied
by a fraction the denominator of which is the Base Index and the numerator of which
is the Adjustment Index. As used herein "Index" means the Consumer Price Index
for all Urban Consumers (CPI -U) as issued by the United States Bureau of Labor
Statistics for Minneapolis -St. Paul, MN -WI currently published semiannually, or, if
the CPI -U is no longer published, a similar index of inflation mutually agreed upon
by the parties. The "Base Index" shall be the Index for the period January - June,
2000 and the "Adjustment Index" shall be the Index for the calendar six month period
immediately preceding the calendar six month period in which Seller gives notice of
exercise of its options hereunder.
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7.2.3 The property may only be repurchased for the purpose of providing
additional parking for Seller's exclusive use in conjunction with the expansion of
Seller's existing facility located on the Northwest corner of W. 78th Street and Market
Boulevard.
7.2.4 The maximum amount of the property that Seller may repurchase
pursuant to this option is the minimum area necessary, under the then existing City
of Chanhassen ordinances, to provide the maximum number of additional vehicular
parking spaces and reasonable vehicular ingress and egress thereto directly from a
public street, caused by Seller's expansion of its existing facility at its current location,
up to a maximum of 80 additional parking spaces. -
7.2.5 Any provision hereof to the contrary notwithstanding, Seller may
initially repurchase a portion of the Subject Property sufficient to create up to 25 of
those parking spaces, together with the area necessary for access thereto, without any
requirement that Seller actually construct an expansion of its existing banking facility.
No portion of the remainder of the 80 parking spaces may be repurchased unless
additional parking spaces are required as part of an expansion of Seller's existing
banking facility at its current location.
7.2.6 Seller shall repurchase the property in its then condition, "as is" and
"where is ", improved or unimproved and subject to all faults and deficiencies except
as expressly set forth herein.
7.3 Exercise of Option. Seller shall exercise its repurchase option by delivering
written notice of its intent to do so to the City Manager, or the Mayor, of the City of
Chanhassen no later than 5:00 p.m. on December 31, 2010. Any such written notice shall
include a copy of this Option Agreement, a statement of the number of parking spaces to
727976.4 10
be repurchased, the proposed location within the Subject Property and /or other designated I
property for the bank parking spaces, and an earnest money check payable to the City of '
Chanhassen in the amount of $10,000.00. Within 30 days after receiving the written notice
required above, the Buyer shall notify Seller of any objections Buyer ma y have to the '
proposed location of the bank parking spaces. If such notice of objection is given, the '
parties agree to meet promptly and negotiate in good faith to resolve the location of the
bank arkin spaces within the general guidelines set forth in Sect'
p g p g gu ion 7.4 below.
7.4 Property Location Guidelines. The parties acknowledge that Buyer intends ,
to expand the existing City Hall building and its related parking areas into the Subject
Property [Attached hereto as Exhibit A are preliminary drawings showing possible expansion
plans (Phase I, Phase II, and Phase III) of Buyer, which plans are conceptual only at this
time, have not been approved by Buyer and are subject to change in Buyer's sole discretion.]
and that the Buyer's expansion efforts may have been accomplished prior to Seller's exercise
of the option granted herein. In that event, the property to be repurchased by Seller for
bank parking spaces shall be those portions of the Subject Property (Lot 2 and Lot 3 of
Block 2) and those portions of Lot 2, Block 1 and vacated Chanview Street and vacated
Center (Coulter) Street lying adjacent to the Subject Property, which have then been
improved for vehicle parking. First priority shall be given to any parking spaces then located
on the Subject Property and on vacated Center (Coulter) Street. Second priority shall be
given to parking spaces then located on Lot 2, Block 1 and vacated Chanview Street. Third
priority shall be given to parking spaces then located on Lot 1, Block 2, the south half of Lot
1, Block 1, and vacated Center (Coulter) Street lying adjacent thereto. In the event Buyer
shall hereafter obtain ownership of the parcel of land presently owned by R. W. Steiner,
727976.4 11
' occupied b the Postal Service and lying immediate) North of Seller's existing banking
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' facility (the "Steiner Parcel "), then the Steiner Parcel shall be the other designated property
' and shall have first priority for bank parking spaces.
7.5 Restrictions. The parties agree to the following restrictions and limitations on
' the use of the parking spaces on that portion of any parking lot that is located on land
' repurchased by Seller pursuant to this option (hereinafter "Option Parking Lot "):
7.5.1 The Buyer shall not, at any time, park city owned vehicles in the Option
' Parking Lot;
7.5.2 The Buyer shall make all reasonable efforts to prohibit its employees
' from parking their vehicles in the Option Parking Lot;
7.5.3 Seller shall make all reasonable efforts to prohibit its employees from
' parking their vehicles in the Option Parking Lot overnight;
7.5.4 Seller shall not, at any time, park vehicles, boats, motorcycles or any
' piece of equipment of any kind, in the Option Parking Lot overnight, nor shall Seller
park any such vehicle or other piece of equipment in the Option Parking Lot if such
vehicle or piece of equipment is being displayed for sale.
7.6 Relocation. Notwithstanding anything to the contrary contained herein, Buyer
' shall have the right, at any time, whether before or after the exercise by the Seller of its
option to repurchase and whether before or after the identification, acquisition and
improvement of an parking to redesignate and relocate the Option Parkin Lot to
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' other property owned by the Buyer adjacent to Seller's existing facility, so long as the
' following conditions are met:
7.6.1 The newly designated area is of sufficient size to allow construction of
an equivalent number of parking spaces and access thereto.
7.6.2 The Buyer designs and constructs the parking lot in the newly
' designated area at no cost to Seller in a good workerlike manner using quality
materials.
1 727976.4 12
7.6.3 The newly designated location is within the approved area identified in ,
Section 7.4 above.
7.7 Exclusive Parking RiEhts. In the event that the Option Parkin Lot and other '
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Buyer parking lots are subjected to mutual cross easements in favor of Buyer and Seller for '
access and parking, but that the actual use of the Option Parking Lot by persons who are
neither customers nor employees of Seller is such that '
Sellers needs for ample and
proximate parking are not being sufficiently served, then upon request by Seller, Buyer '
promptly shall construct additional parking on Buyer's property to remedy the situation or ,
shall permit the placement of signs by Seller so as to restrict use of the Option Parking Lot
for the exclusive parking needs of Seller. ,
7.8 Buver's Covenants, Warranties and Representations. With respect to Buyer's I
obligations under this Section 7, and as an inducement to Seller to enter into this
Agreement, and as a material part of the consideration therefor, Buyer represents, covenants
and warrants to Seller as follows:
7.8.1 Prior to the closing of any repurchase by Seller of any of the Subject
Property and /or the additional property designated on Exhibit A, Buyer shall not take
action or suffer or permit any action to occur which would or might cause Buyer to
be unable or unwilling to make to Seller all of the same representations and
warranties as are set forth in Section 5.1.3, 5.1.4, and 5.1.5 hereinabove, and Buyer
shall so certify at such closing.
7.8.2 Buyer shall convey marketable title to the property repurchased by
Seller, subject only to the Permitted Exceptions; prior to any closing Buyer at its own
expense shall furnish to Seller a title Commitment for such property and if Seller
raises any title objections based on such Commitment, Buyer shall eliminate or cure
such exceptions, using due diligence and, if necessary, Buyer shall use its powers of
eminent domain to make such title marketable and free of all title exceptions except
the Permitted Exceptions.
7.8.3 Buyer shall pay the state deed tax and any other documentary or similar
taxes as may then be applicable to conveyances of real estate; any real estate taxes
shall be prorated to closing and any special assessments shall be paid by Buyer.
727976.4 13
' 7.8.4 Buyer warrants, both now and at the time of any closing, that Buyer has
full power and authority to grant the foregoing options and to convey the property
' to Seller under the terms and conditions set forth in this Section 7. Buyer shall deliver
to Seller at Closing a certified copy of the Resolution of the City Council of Buyer
authorizing Buyer's entry into and performance of this Agreement and the Option
' Agreement and the execution and delivery of all documents and instruments
necessary to consummate the transactions set forth in this Agreement.
' 7.8.5 If Seller exercises the option to repurchase granted herein, and a
subdivision of a parcel or Seller's intended use of the repurchased property requires
approval of Buyer or issuance of a permit, certificate or license by Buyer, upon
' application by Seller for such approval, permit, certificate or license, Buyer shall issue
the requested approval, license, certificate or permit so long as Seller's application
and proposed use of the property complies with all then existing applicable statutes,
' ordinances, rules, regulations and policies.
7.9 Liquidated Damaaes. In the event that, prior to Seller's repurchase of any of
' the Subject Property and /or the additional property under this Section 7, Buyer, its
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capacity as a municipal corporation, or any officer, board, administrator, employee or agent
' of Buyer, or any other municipal corporation exercising zoning or land use controls in the
City of Chanhassen, shall create, suffer or permit any public zoning ordinances or regulations
' (other than ordinances and regulations which uniformly pertain to vehicle parking lots
' generally in the City of Chanhassen) or other public or private use restrictions with respect
to such property, which would prevent or materially interfere with Seller's intended use
thereof for vehicle parking and access thereto for itself and its customers and invitees, or
' shall take any other action to nullify, rescind or breach Buyer's obligations under this Section
7, so that Seller's option to repurchase under this Section 7 is rendered impracticable, then
it is mutually agreed that Seller will be seriously and substantially damaged, and because it
will be difficult for Seller to prove the amount of such damage, Buyer agrees in such event
to pay to Seller the sum of $500,000.00 as liquidated damages and not as a penalty. This
sum has been agreed on by the parties as the amount of damages which Seller will suffer
727976.4 14
on account of and in the event that its option rights are rendered impracticable as described
above. After December 31, 2000, such amount shall be increased by application of the
Consumer Price Index formula set forth in Section 7.2.2 above. If Seller has repurchased
a portion of the property for parking spaces prior to the time its right to receive liquidated
damages arises, then the foregoing sum shall be pro -rated by dividing it by 80 and
multiplying the result by the number of parking spaces remaining unrepurchased by Seller.
7.10 Option Agreement. At Closing, the parties shall execute an Option
Agreement containing the foregoing terms and conditions and Seller may record such Option
Agreement, or a suitable memorandum thereof, in the land records of Carver County.
SECTION 8.
MISCELLANEOUS
8.1 The covenants, warranties and representations made by the parties in this I
Agreement shall survive the Closing of this transaction.
8.2 The parties each represent to the other that they have not employed or I
contracted with a real estate broker or agent in connection with this Agreement, and they
hereby agree to indemnity and hold each other harmless from and against any and all claims
for a commission or fee by any person claiming to have such employment by or a contract
with the indemnifying party in connection with this Agreement.
8.3 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 Seller or Buyer. Any notice shall be
deemed effective when delivered to the party to whom it is directed. Unless a different
727976.4 15
address is designated by a party by notice in writing to the other party, notices shall be
delivered to Seller or Buyer at the applicable address stated on the first page of this
Agreement.
8.4 Time shall be of the essence in this Agreement. Where any date or time
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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.
8.5 Each party hereto shall promptly, on the request of the other party, have
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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.
8.6 This Agreement represents the entire agreement of the parties with respect
to the Subject Property and all prior agreements, understandings, or negotiations between
the parties are hereby revoked and superseded hereby. 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 Agreement may not
be changed, modified or rescinded, except by a written agreement signed by both parties
hereto.
8.7 If Buyer defaults under any of the terms hereof, except as otherwise provided
herein Seller shall have the right to pursue any remedies available to Seller at law or in
equity, including specific performance, damages (including attorney's fees) and the
cancellation of this Agreement.
8.8 If Seller defaults under any of the terms hereof, including, without limitation,
the delivery of marketable title to the Subject Property as set forth in Section 4 hereof, and
727976.4 16
any of Seller's representations, covenants, and warranties in Section 5 hereof, then except
as otherwise provided herein Buyer shall have the right to pursue any remedies available to
Buyer at law or in equity, including specific performance, damages (including attorney's fees)
and the cancellation of this Agreement.
8.9 If any material provision of this Agreement is declared void or unenforceable
by the final judgment of a court of competent jurisdiction, then this Agreement shall be
rescinded and the parties returned to their original positions as equitably determined by such
court.
8.10 Failure of any party to exercise any right or option arising out of a breach of
this Agreement by the other party 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.
8.11 This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
8.12 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.
BUYER:
CITY OF CHANHASSEN
SELLER:
STATE BANK OF CHANHASSEN
0
Donald J. Chmiel, Mayor
Kevin P. McShane, President
Don Ashworth, Clerk/Manager
727976.4 17
STATE OF MINNESOTA )
) ss.
COUNTY OF CARVER )
The foregoing instrument was acknowledged before me this day of ,
1995, by Donald J. Chmiel and Don Ashworth, respectively the Mayor and Clerk/Manager
of the CITY OF CHANHASSEN, a Minnesota municipal corporation, on behalf of the
corporation and pursuant to the authority granted by its City Council.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF CARVER )
The foregoing instrument was acknowledged before me this day of October,
1995 by Kevin P. McShane, President of STATE BANK OF CHANHASSEN, a Minnesota
banking corporation, on behalf of the corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
317 Eagandale Office Center
1380 Corporate Center Curve
Eagan, MN 55121
Telephone: (612) 452 -5000
GGF /cjh
and
BRIGGS AND MORGAN, P.A.
2400 IDS Center
Minneapolis, MN 55402
Telephone: (612) 334 -8484
727976.4 18
EXHIBIT "A" '
to ' REAL ESTATE PURCHASE AGREEMENT
(Phase I, Phase II and Phase III Parking and Roadway Layout drawings) I
727976.4 1
1
1
1
1
1
1
1
1
1099 -S -- PROCEEDS FROM REAL ESTATE TRANSACTIONS
FILER: CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
1380 Corporate Center Curve, Suite 317
Eagan, MN 55121 -1200
FED ID# 41- 1562130
TRANSFEROR'S NAME(S):
727976.4
SSN# (IF HUSBAND AND WIFE- -ONLY I SSN NEEDED)
IF COMPANY -- FEDERAL TAX ID#
1. DATE OF CLOSING:
2. GROSS PROCEEDS $
3. LEGAL DESCRIPTION:
4. TRANSFEROR RECEIVED OR WILL RECEIVE PROPERTY OR SERVICES
AS PART OF THE CONSIDERATION?
5. BUYER'S PART OF REAL ESTATE TAX - $
727976.4