9. Forest Meadow: Real Estate Purchase Agreement for Outlot A.A
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CITY OF q ._._
CHANHASSEN
690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
(612) 937 -1900 • FAX (612) 937 -5739
MEMORANDUM
TO: Don Ashworth, City Manager
FROM: Todd Hoffman, Park & Recreation Director
Action by City AdmIn►s htff,
Endorse
Modifie
Rejects
Dame Sibmitted to Commissfoll
Dnts;,';.M: ted to Council
/� .21- '
DATE: November 21, 1995
SUBJ: Approval of Real Estate Agreement, Outlot A, Forest Meadow, JMS Companies
On October 9, 1995, the Chanhassen City
Companies for Forest Meadow:
1. Final plat approval of 18 single family
property from A2 to RSF.
2. Approval of a development contract at'
A The specific motion made that evening fol.
"Councilman Senn
plat for 18 single fa
the property from
approve the Develo
Project 8,'sset
relating f(R6evutk
applicant. All vote
the following approvals to JMS
reading of an ordinance rezoning the
and specifications, Project 94 -18.
wed, Councilman Mason se
ly lots and the final reading
to RSF for Forest Meadow,
which are yet to be resolved bet
in favor and the motion carried
JMS Companies appeared before the Park an
Following the discussion between the commi
motion was made:
led to approve the final
n ordinance rezoning
5 Development; and to
Plans & Specifications,
on Commission on October 24, 1995.
representatives of JMS, the following
"Commissioner Andrews moved and Commissioner Meger seconded that the
city pursue acquisition of the Forest Meadow Oudot under the following
terms and conditions:
Mr. Don Ashworth
November 21, 1995
Page 2
1. JMS shall be compensated $26,000 per acre;
2. Full park and trail fees shall be waived;
3. JMS shall be entitled to remove up to 13,000 cu. yds. of fill material from
the outlot;
4. JMS shall restore and seed the outlot;
5. JMS shall be responsible for silt fence installation.
The motion carried on a 4 to 3 vote."
Since that time, a flurry of activity revolving around a purchase agreement has occurred.
The copy which is attached was last edited by representatives of JMS Companies and has
been signed by Mr. Jeffrey M. Schoenwetter, the president of JMS Development
Corporation. This agreement meets the terms requested by the commission with the
exception of the seeding. Section 8.1 specifies that, "Buyer shall complete seeding and
mulch work on the property."
It is my experience that in most instances when the "seller" completes finish grading and
seeding, the city's park superintendent is unhappy with the quality of such work. In other
words, the city would save a few thousand dollars if the "seller" seeded the outlot, but the
odds are high that the city's park crew would redo the work.
RECOMMENDATION
It is recommended the city council approve the attached real estate agreement between the
City of Chanhassen and JMS Companies. Said agreement describes the sale and purchase
of Outlot A, Forest Meadow in the amount of $129,220 ($26,000 /acre).
ATTACHMENTS
c: Jim Walston, Campbell, Knutson, Scott & Fuchs
JMS Companies
Gary Eidson, Fabyanske, Svoboda, Westra & Hart
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SECTION 1
SALE AND PURCHASE OF LAND
1.1 Seller shall sell to Buyer and Buyer shall purchase from Seller, upon the terms
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REAL ESTATE PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement ") made and entered into this Ap 00 day of
November, 1995, by and between the CITY OF CHANHASSEN, a public body corporate and
politic under the laws of the State of Minnesota, with offices at 690 Coulter Drive, P.O. Box
147, Chanhassen, MN 55317 (referred to herein as the 'Buyer ") and J.M.S. DEVELOPMENT
CORPORATION, a corporation existing under the laws of the State of Minnesota with offices
at 80 West 78th Street, Suite 133, Chanhassen, MN 55317 (referred
to herein as the "Seller ").
IN CONSIDERATION of the mutual covenants and agreements herein, it is hereby
mutually agreed by Seller and Buyer as follows:
and conditions hereof, the following property (all collectively referred to as the "Subject
Property "):
1.1.1 The land in Carver County, Minnesota, legally described on Exhibit "A"
to be attached hereto and incorporated herein.
SECTION 2
PURCHASE PRICE
2.1 The purchase price for the Subject Property (the "Purchase Price ") shall be in a
dollar amount equal to One Hundred Twenty -nine Thousand Two Hundred Twenty and
no /100 Dollars ($129,220.00), payable by Buyer to Seller as follows:
2.1.1 One Hundred Twenty -nine Thousand Two Hundred Twenty and no/ 100
Dollars ($129,220.00) in cash on the date of Closing.
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The Purchase Price is based upon a price of $26,000.00 per acre. In the event the
acreage of the Subject Property is different than 4.97 acres (as determined by the survey I
described in Section 3.3), the Purchase Price shall be adjusted. , 1
SECTION 3
TITLE MATTERS
3.1 Seller shall furnish to Buyer within thirty (30) days hereof a current commitment '
for the issuance of an ALTA Form B owner's policy of title insurance (the "Commitment ") ,
issued by Chicago Title Insurance Company ( "Title ") in the amount of One Hundred Twenty -
nine Thousand Two Hundred Twenty Dollars and no /100 ($129,220.00), committin g to insure '
that Buyer will have good and marketable title to the Subject Property, except for standard '
exceptions to title and except matters to which Buyer may consent in writing. Buyer shall have '
ten (10) days after receipt of the Commitment to make any objections to the matters disclosed
in the Commitment. Such objections to be made in writing or deemed to be waived.
3.2 In the event any exceptions are listed in the Commitment for title insurance other
than standard exceptions and exceptions that Buyer consents to in writing, if the same results
from any voluntary action by the Seller, or if the same relates to any lien or encumbrance of a
monetary nature, which can be removed by payment of an amount up to the Purchase Price at '
closing, the Seller shall cause the exception to be removed on or before the Closing Date. With
regard to any other exceptions, if the Seller fails to remove the same within the time allowed
for closing on the Subject Property, the Buyer shall have the right to terminate this Agreement.
3.3 Seller shall furnish to Buyer a boundary survey ( "Survey ") within thirty (30) _
days of the execution of this Agreement, together with a letter from Seller's surveyor certifying
the square footage of the Subject Property. '
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SECTION 4
CLOSING
4.1 The closing (the "Closing ") shall be at a location designated by Seller, and shall
occur in conjunction with, but subsequent to, the closing upon Seller's acquisition of the Subject
' Property at which the plat of "Forest Meadow" is accepted by the title company for recording.
4.2 On the Closing Date, Seller shall deliver to Buyer possession of the Subject
Property, subject to Seller's rights of entry P ursuant to Section 8.1 hereof.
' 4.3 On the Closing Date, Seller shall execute and deliver to Buyer:
' 4.3.1 A duly executed warranty deed, subject only to: a covenant in such Deed
providing that the Subject Property be used solely for purposes of a public park,
Declarations, Easements and /or Restrictions of record; standard exceptions of title
' (deleting survey and mechanic's lien exceptions); and to the exceptions consented to by
Buyer, and
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 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.
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, together with all installments
of special assessments payable therewith. Buyer shall pay for all general real estate taxes due
and payable in years subsequent to the year of Closing as well as future assessments which
become pending after the date of Closing. Seller and Buyer shall prorate real estate taxes
payable upon the Subject Property in the year in which Closing occurs. It is acknowledged that
the Subject Property does not presently constitute a separate tax parcel. For purposes of
prorating such real estate taxes, Seller and Buyer shall proceed in good faith at Closing to
equitably apportion that portion of real estate taxes assessed against the tax parcel upon which
the Subject Property is situated and payable in the year in which Closing occurs which should
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be allocated to the Subject Property. At Closing, the parties shall also allocate all special
assessments that may then be pending or levied against the tax parcel upon which the Subject
Property is situated as follows: the total amount of such special assessments shall be multiplied ,
by a fraction, the numerator of which is the total number of square feet of land area comprised
within the Subject Property, and the denominator of which is the sum of such numerator plus '
the aggregate amount of square feet of land area comprised within all separately platted '
residential lots in the "Forest Meadow" plat. At Closing, Buyer shall pay or assume all levied
or endin special assessments so allocated to the Subject Property and take title free of the lien '
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of any levied or pending special assessments that are not so allocated to the Subject Property. ,
The parties agree to cooperate in requesting that the assessing authority allocate all such special
assessments among the new tax parcels created as a consequence of the filing of the "Forest
Meadow" plat in a manner that gives effect to the allocation contemplated hereby. In the event
that the assessing authority fails to allocate such assessments in such a manner, the parties '
nonetheless agree to execute and perform any agreements that may be reasonable in form and
that may be reasonably necessary to give effect to the allocation contemplated hereby. '
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, 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 all costs incurred for the survey described in Section 2; and
4.6 Buyer shall pay at Closing:
'
4.6.1 all recording fees and charges relating to the filing of the deed; and
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4.6.2 title insurance premiums.
' 4.7 Buyer and Seller shall equally share the closing fee charged b the title
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' 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, licenses, 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 the Subject
Property, except as described on Exhibit "B ";
' 5.1.2 Seller 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 Seller acquires title thereof until the Closing Date;
' 5.1.3 To the best of Seller's actual knowledge, without inquiry, no 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) from any "facility" or "vessel" located on or used in
connection with the Subject Property or adjacent tracts; or
' (ii) taken any action in "response" to a "release" in connection with
the Subject Property or adjacent tracts; 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 or adjacent
tracts, 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
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Liability Act, 42 U.S.C. See. 9601 et seq., as amended
( "CERCLA ") and any state environmental laws.
5.1.4 To the best of Seller's actual knowledge without inquiry, no person or
entity has, at any time, ever installed, used, or removed any underground storage tank
on or in connection with the Subject Property; and
5.1.5 The Seller certifies that it does not know of any wells on the Subject
Property.
5.1.6 Seller has the present full authority and power to execute this Agreement
and, upon Seller's acquisition of title to the Subject Property and Buyer's release of the
plat of "Forest Meadow" for recording by Seller, to close the sale of the Subject
Property.
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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. Seller indemnifies Buyer from any breaches of the covenants, warranties and
representations set forth in this Section 5. 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.
SECTION 6
ENVIRONMENTAL /SOIL INVESTIGATION AND TESTING
6.1 Buyer and its agents shall have the right, at the sole option of Buyer, to enter
upon the Subject Property without charge and at all reasonable times from the date of the
execution of this Agreement to perform such environmental investigation and soil tests as Buyer
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may reasonably deem appropriate. If Buyer investigates and tests the Subject Property pursuant
to this section, Buyer shall pay all costs and expenses of such investigation and testing and shall
hold Seller harmless from all costs and liabilities arising out of Buyer's activities. If the
purchase and sale contemplated by this Agreement is not closed, Buyer shall, at its own expense,
repair and restore any damage to the Subject Property caused by Buyer's investigation and
testing, and shall return the Subject Property to substantially the same condition as existed prior
to such entry.
SECTION 7
BUYER'S CONTINGENCIES
The obligations of Buyer under this Agreement are contingent upon each of the
following:
7.1 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 of the
Subject Property;
7.2 Buyer shall have determined on or before the Closing Date, that it is satisfied with
the results of surveyor's letter referenced in Section 3.3 herein.
If any of the contingencies have not been satisfied on or before the earlier of the Closing
Date or the tenth (10th) day after the date of this Agreement, the Buyer may, at Buyer's option,
terminate this Agreement by giving written notice to Seller on or before such earlier date. Upon
such termination, neither party shall have any further rights or obligations under this Agreement.
The contingencies set forth above are for the sole and exclusive benefit of Buyer, and Buyer
shall have the right to waive the contingencies by giving written notice to Seller.
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SECTION 8
MISCELLANEOUS '
8.1 Notwithstanding as contrary provision herein, Seller shall be entitled to enter upon
the Subject Property after Closing and remove up to 13,000 cubic yards of fill material from the '
Subject Property, in accordance with that certain Grading, Drainage and Erosion Control Plan I
dated June 19, 1995, revised September 29, 1995, prepared by Roger Anderson & Associates,
Inc., and approved b the City Engineer the "Approval Plan"). After the removal of said fill ,
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g ( PP ) ,
Seller shall grade all areas affected by removal activity to a relatively flat or neutral grade as '
contemplated by the Approved Plan. In completing such grading, Seller shall create the small ,
retention pond contemplated by the Approved Plan and shall leave enough material in a berm
to permit the Buyer to subsequently fill such pond. Buyer shall complete seeding and mulch '
work on the Subject Property. Erosion control for all fill removal activities and grading '
performed by Seller hereunder shall be the responsibility of the Seller, but only to the extent
required by any permits granted by the Army Corps of Engineers or by the applicable watershed '
district. This right of entry and removal of material shall survive the Closing and the delivery ,
of the Deed.
8.2 The covenants, warranties and representations made by Seller and Buyer shall I
survive the Closing of this transaction.
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 directed to Seller ,
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 Seller or Buyer
at the applicable address stated on the first page of this Agreement.
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8.4 Time shall be of the essence in this Agreement. If any date or time prescribed
by this Agreement falls on a Saturday, Sunday or 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
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
transfer and sale of the Subject Property from Seller to Buyer 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 or modified except by a written agreement signed by Seller
and Buyer. This Agreement shall not affect the rights and obligations of Seller and Buyer under
any development contract or any other agreement affecting the development of property adjacent
to the Subject Property; provided, if there is a conflict between this Agreement and any such
development contract or other agreement, the terms of this Agreement shall control.
8.7 If Buyer defaults under any of the terms hereof, Seller shall have the right to
pursue any remedies which are available to Seller at law or equity (including specific
performance), plus attorney's fees incurred in pursuing such remedies.
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, then Buyer
shall have the right to pursue any remedies available to Buyer at law or in equity, including
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without limitation, specific performance, damages, and the cancellation of this Agreement, plus
attorneys fees incurred in pursuing such remedies. ,
8.9 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.' ,
8.10 Failure of any party to exercise any right arising, out of a breach of this ,
Agreement shall not be deemed a waiver of any right with respect to any subsequent or different
breach, or the continuance of any existin g breach. '
8.11 This Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, personal representatives, successors and assigns. ,
8.12 Seller and Buyer represent and warrant to each other that they have not engaged
or dealt with any broker or agent with respect to the Subject Property. Notwithstanding the ,
foregoing, Buyer and Seller shall each defend, indemnify and hold the other harmless from and '
against all claims, losses and liabilities incurred by the indemnified party in connection with any
claim or demand by any person or entity from any brokers, finders, or other fee or '
compensation in connection with the indemnifying party's entry into this Agreement. '
8.13 Notwithstanding any contrary provision herein, the following shall be conditions
precedent to Seller's obligations hereunder: (a) that Seller enter into a development agreement '
with Buyer concerning the development of that property in the plat of Forest Meadow other than '
the Subject Property upon terms acceptable to Seller in its sole discretion; and (b) that Seller
obtain fee title to the Subject Property upon terms acceptable to Seller in its sole discretion. '
8.14 It is acknowledged that Jeffrey M. Schoenwetter, a principal of Seller, is a '
licensed real estate salesperson.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
BUYER:
CITY OF CHA14HASSEN
By:
Donald J. Chmiel, Mayor
SELLER:
J.M.S. DEVELOPMENT CORPORATION
By:
effrey M. Schoenwetter, President
By:
Don Ashworth, City Manager
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28097.8
A
STATE OF MINNESOTA
)
COUNTY OF )
The foregoing instrument was acknowledged before me this day of November,
1995, by Jeffrey M. Schoenwetter, the President of J.M.S. DEVELOPMENT CORPORATION,
a corporation under the laws of the State of Minnesota. on behalf of the corporation.
L
BETH ANN NOTKAMMAADSON
NOTARY PUBLIC • UWASOTA
My Notary Pub
="$
I Ur
'
STATE OF MINNESOTA
ss.
OF CARVER )
' COUNTY
This instrument was acknowledged before me this day of November, 1995 by Donald '
J. Chmiel, the Mayor, and Don Ashworth, the City Manager, for the CITY OF CHANHASSEN,
a public body corporate and politic under the laws of the state of Minnesota by-and through the
authority granted by its City Council. '
Notary Public I
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
JRW I
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EXHIBIT "A"
to
REAL ESTATE PURCHASE AGREEMENT
Legal Description of the Subject Property
Real property that is not presently subdivided but that is proposed to be platted as Outlot A,
Forest Meadow, Carver County, Minnesota
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EXHIBIT B
to , REAL ESTATE PURCHASE AGREEMENT
Leases, Options, Etc.
NONE.
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