1e. Approve Contract for Deed, Roadrunner Diesel4
CITY OF
CHANAASSEN
7700 Market Boulevard
PO Box 147
Chanhassen, MN 55317
Administration
Phone: 952.227.1100
Fax: 952.227.1110
Building Inspections
Phone: 952.227.1180
Fax: 952.227.1190
Engineering
Phone: 952.227.1160
Fax: 952.227.1170
Finance
Phone: 952.227.1140
Fax: 952.227.1110
Park & Recreation
Phone: 952.227.1120
Fax: 952.227.1110
Recreation Center
2310 Coulter Boulevard
Phone: 952.227.1400
Fax: 952.227.1404
MEMORANDUM
TO: Todd Gerhardt, City Manager ��))
FROM: Laurie Hokkanen, Assistant City Managerj&
DATE: June 25, 2012 0 � _
SUBJ: Old Public Works Building Contract for Deed
PROPOSED MOTION
"The City Council approves the Contract for Deed with Roadrunner Diesel
Services to be effective July 1, 2012.
The City Council also approves the attached Resolution, Dispensing with
Statutory Requirements for Review by Planning Commission of the Acquisition
of Real Property."
A 2/3 vote of the City is required to approve this item.
BACKGROUND
Roadrunner Diesel Services, Inc. has been leasing the old Public Works facility since
March 1, 2011. Road Runner owns and operates a fleet of over - the -road car carriers and
has a diesel mechanic business. Over the past three months, Roadrunner has identified
significant investments that they wish to make in the building, such as making the doors
larger and installing larger hoists. The city has agreed to participate in these
improvements in the amount of $15,000.
The terms of the current lease with Roadrunner are as follows:
Planning &
• Rent for the first 6 months is $7,925 per month and for the second six
Natural Resources
months is $12,389 per month. The city would have generated $118,104 in
Phone: 952.227.1130
Fax: 952.227.1110
revenue, but was also responsible for all expenses.
o Through June 2012, we have collected $31,700 in rent.
Public works
• Year 2 rent is set at $7,011 per month (4.50 triple net per square foot),
7901 Park Place
with the tenant being responsible for actual cam (insurance and
Phone: 952.227.1300
maintenance) and taxes. This would have generated $84,132 in rent.
Fax: 952.227.1310
• Year 3 rent is set at $7,400.50 per month (4.75 triple net per square foot),
with tenant responsible for actual cam and taxes. This would have
Senior Center
Phone: 952.227.1125
generated $88,806 in rent.
Fax: 952.227.1110
Additionally, the cold storage building is currently leased to Beniek Property Services for
Web Site
$1,763 per month through October 2012. This lease would be transferred to Roadrunner.
www.ci.chanhassen.mn.us
G: \Admin \LH \old PW Building, 1591 Park Rd \Road Runner CforD Approval Staff Report 2.doc
Chanhassen is a Community for Life - Providing for Today and Planning for Tomorrow
Mr. Todd Gerhardt
June 25, 2012
A contract for deed is a contract between a seller and buyer of real property in which the
seller provides financing to buy the property for an agreed -upon purchase price and the
buyer repays the loan in installments. Under a contract for deed, the seller retains the
legal title to the property, while permitting the buyer to take possession of it for most
purposes other than legal ownership.
The sale of the old Public Works building includes two parcels, 25.1900300 and
25.1900310.
The details of the contract for deed are as follows:
Purchase Price: $1,475,000
Terms: 30 year Amortization
5 year term
5% interest
Down payment: $87,600
An initial payment of $30,000 will be transferred from the current lease's security
deposit. They will then pay an incremental "down payment" of $3,200 per month for
18 months. This will be added to the $30,000, giving them a total down payment of
$87,600 within 18 months of the purchase date.
In addition to the down payment amount, they will make a monthly payment:
Monthly Payment: $7,757.07
Payoff /Balloon $1,277,082.44
June 2017
Roadrunner would assume responsibility for all aspects of maintenance on the property,
including the utility bills, snow removal, lawn care,14VAC repairs, etc. The fuel tanks
on the property are in compliance with MnPCA and would also become Roadrunner's
responsibility The city would have approval on any changes made to the building over
$20,000.
Our listing agreement with Marathon Real Estate calls for a commission of 4.75% to be
paid. Marathon is representing both buyer and seller. The commission, which totals
$70,062.50, will be paid in three annual installments of $23,354.17 from 2012 through
2014.
Minnesota State Statute 462.356 states that when disposing of publicly owned
property, a municipality must pass a Resolution stating that the disposal is in
compliance with the Comprehensive Plan. The city may certify this through the
Planning Commission or by a 2/3 vote of the City Council. The use of the
property by RRDS will be similar to its use as a public works building.
RECOMMENDATION
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G: \Admin \LH \old PW Building, 1591 Park Rd \Road Runner CforD Approval Staff Report 2.doc
Mr. Todd Gerhardt
June 25, 2012
Staff recommends approval of this Contract for Deed.
ATTACHMENT
1. Contract for Deed
2. Resolution
3
G:\Admin \LH \old PW Building, 1591 Park Rd \Road Runner CforD Approval Staff Report 2.doc
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement ") is made and entered into as of this
day of , 2012 ( "Effective Date ") between CITY OF CHANHASSEN, a Minnesota
municipal corporation ( "Seller ") and ROADRUNNER TRUCK REPAIR, INC., Minnesota
corporation ( "Purchaser ").
In consideration of the covenants and agreements contained herein, the parties agree as follows:
1. Premises To Be Purchased Subject to compliance with the terms and conditions of this
Agreement, Seller shall sell to Purchaser and Purchaser shall purchase from Seller the
following (the "Premises "):
A. The real property located at 1501 Park Road, City of Chanhassen, County of
Carver, State of Minnesota, legally described as Lots 10 and 11, Block 5,
CHANHASSEN LAKES BUSINESS PARK, Carver County, Minnesota; (the
"Land "), together with all easements, tenements, hereditaments, and appurtenances
belonging thereto.
B. All buildings, structures, fixtures located within the buildings, and other
improvements erected or placed on the Land.
2. Purchase Price and Payment
A. Price The total purchase price for the Premises shall be One Million Four Hundred
Seventy Five Thousand and no /100 Dollars ($1,475,000.00) ( "Purchase Price ").
Purchaser shall pay the Purchase Price as described below.
B. Payment
(i) Down Past. Purchaser shall pay to Seller an Eighty Seven Thousand
Six Hundred and no /100 Dollars ($87,600.00) down payment ( "Down
Payment ") payable as follows
a. At closing, a Thirty Thousand and no /100 Dollar ($30,000.00) payment.
This payment shall be transferred at closing from the deposit from that
certain lease between Seller and Purchaser dated March 1, 2012
( "Roadrunner Lease "). However, if landlord has used any portion of
the deposit for purposes allowed under the Roadrunner Lease, Purchaser
shall pay the difference at closing to ensure a full Thirty Thousand and
no /100 Dollar ($30,000.00) down payment on the day of closing.
b. 18 monthly payments of Three Thousand Two Hundred and no /100
Dollars ($3,200.00) totaling Fifty -Seven Thousand Six Hundred and
no /100 Dollars ($57,600). Purchaser shall make payments on the
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seventy day of each month beginning on the seventh day of the first
month after the closing and continuing for 18 months.
(ii) Contract for Deed. The remaining Purchase Price shall be paid pursuant to
the terms of a Contract for Deed that is in all material respects similar to the
form attached hereto as Exhibit C and made a part hereof ( "Contract for
Deed "), which Contract for Deed shall reflect that the remaining Purchase
Price is payable over a 5 year term, amortized over 30 years at an interest
rate of 5 %, and monthly principal and interest payments with a balloon
payment on the remaining principal balance at the end of the 5 year term.
3. Title To Be Delivered Upon Purchaser's full performance of the Contract for Deed,
Seller shall execute and deliver to Purchaser a Warranty Deed (the "Deed ") conveying fee
title to the Premises to Purchaser subject to the exceptions to title set forth in attached
Exhibit A (the "Permitted Exceptions "). Within ten (10) business days after the Effective
Date of this Agreement, Seller shall deliver to Purchaser a title commitment ( "Title
Commitment ") covering the Premises issued by Escrow Agent wherein Escrow Agent
agrees to issue to Purchaser upon the recording of the Deed an ALTA (6/17/2006) Standard
Coverage Owner's . Title Insurance Policy in the full amount of the Purchase Price,
accompanied by copies of all recorded documents affecting the Premises and searches for
real estate taxes, bankruptcies, judgments, liens and assessments. Seller shall deliver to
Purchaser a copy of any existing surveys of the Premises to Purchaser. In addition,
Purchaser may, in Purchaser's sole and absolute discretion, employ a reputable surveyor,
licensed or registered in the State of Minnesota, to survey the Premises and prepare an
updated ALTA land title survey ( "Survey ") reflecting all matters of record as disclosed
in the Title Commitment.
Purchaser shall have until ten (10) days after receipt of the Title Commitment and the
Survey ( "Objection Period ") to make its objections to matters disclosed in the Title
Commitment and Survey ( "Title Evidence ") in writing to Seller. Any exceptions disclosed
in the Title Evidence and not timely objected to by Purchaser within the Objection Period
shall be deemed Permitted Exceptions hereunder. Seller shall have the right, but not the
obligation, within twenty (20) days after it receives such objections ( "Cure Period ") to
have the same removed or satisfied. If Purchaser's objections are not removed or satisfied
by Seller within the Cure Period, then, Purchaser may, at its sole discretion and as its sole
and exclusive remedy, either (a) terminate this Agreement by written notice to Seller in
accordance with Section 16.D. hereof, in which case, Purchaser shall be entitled to a refund
of the Earnest Money plus any interest earned thereon, and Purchaser and Seller shall each
be released from any further obligations and liability under this Agreement, except for any
provisions of this Agreement which are made to survive the termination of this Agreement,
and shall execute a mutual cancellation agreement evidencing the termination of this
Agreement, or (b) waive such objections by written notice to Seller in accordance with
Section 16.D. hereof and proceed to closing with the understanding that such uncured
objections shall be included as Permitted Exceptions on the Deed at Closing; provided,
however, that if Purchaser has not notified Seller of its election to either waive such
objections or terminate this Agreement within five (5) days after expiration of the Cure
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Period, then Purchaser shall be deemed to have elected to waive such objections pursuant
to clause (b) above.
4. Due Diligence Period, Rights of Inspection and Testing; Property Data; Seller's
Representations and Warranties; and Termination
A. Due Diligence Period. Purchaser shall have a period of thirty (30) days following
(but not including) the Effective Date of the Agreement (the "Due Diligence
Period ") in which to investigate and study the Premises and to review the Due
Diligence Documents.
B. Right of Inspection and Testing. Upon not less than forty -eight (48) hours prior
written notice to Seller, Purchaser, its counsel, accountants, agents and other
representatives, shall have the right to conduct, at Purchaser's sole cost and
expense, such inspections, investigations, tests and studies of the Premises as
Purchaser deems reasonably necessary (collectively the "Inspections "). As a
condition of such right, Purchaser and its employees, agents, contractors and
invitees shall: (i) obtain Seller's prior written consent, not to be unreasonably
withheld, prior to making any test borings or installing or testing any wells on the
Premises; (ii) in the event Purchaser is conducting any Inspection on the Premises
as permitted in this Agreement, Purchaser shall either (a) provide the Seller duly
and validly executed mechanics lien waivers, whether by a full satisfaction of
mechanics lien or by a written waiver of all mechanics lien rights against the
Premises, by which any provider acknowledges payment in full for its labor and
material or agrees to waive its rights to claim a mechanics lien against the
Premises as the result of any Inspection, or (b) Purchaser shall obtain a written
estimate for said services reasonable acceptable to Seller and shall tender to the
Seller security equal to 150% of total of the estimates of the contractors selected
by Purchaser to perform said services. Such security shall be in the form of cash
or a Letter of Credit from a financial institution acceptable to Seller (the
"Security ") and shall be held in escrow by Seller and shall be released by Seller
upon tender of lien waivers for the Inspection performed on the Premises. In the
event liens or other claims are filed against the Premises, Seller may use the
Security to satisfy such liens or claims; and (iii) indemnify, hold harmless and
defend Seller from and against any and all liabilities, loss, costs (including
reasonable attorneys' fees and court costs) and damages due to injury or death to
persons or damage to property or the Premises that arise from Purchaser's entry
onto the Premises hereunder or performance of the Inspections. Purchaser further
agrees to repair any damage to the Premises, including, without limitation, filling of
holes, arising from Purchaser's Inspections, and shall restore the Premises to the
condition existing prior to entry upon the Premises to the extent the need for
restoration arises from Purchaser's or its employees, agents, contractors or invitees
entry or activities upon the Premises. Purchaser's obligations under this paragraph
shall survive the closing or earlier termination of this Agreement.
C. Property Data. Within fifteen (15) business days of the Effective Date of this
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Agreement, Seller shall provide Purchaser with the items and documents set forth in
Exhibit B (the "Due Diligence Documents ") to the extent such items and
documents are in the Seller's possession. Except as expressly stated herein, Seller
makes no representation or warranty as to the truth, accuracy, or completeness of
any materials, data or information delivered by Seller to Purchaser in connection
with the transaction contemplated by this Agreement. Purchaser acknowledges and
agrees that all materials, data and information delivered by Seller to Purchaser in
connection with the transaction contemplated by this Agreement are provided to
Purchaser as a convenience only and that any reliance on or use of such materials,
data or information by Purchaser shall be at the sole risk and expense of Purchaser.
Without limiting the generality of the foregoing, Purchaser acknowledges and
agrees that (i) any environmental or other report with respect to the Premises shall
be for general information purposes only, (ii) Purchaser shall not have any right to
rely on any such report delivered by Seller to Purchaser, but rather will rely on its
own inspections and investigations of the Premises and any reports commissioned
by Purchaser with respect thereto, and (iii) neither Seller or any affiliate of Seller,
or their respective employees, officers, directors or shareholders, nor any person or
entity which prepared any such report delivered by Seller to Purchaser shall have
any liability to Purchaser for any inaccuracy in or omission from any such report.
In the event this Agreement is cancelled or fails to close for any reason other than
Seller's default, Purchaser shall promptly return to . Seller any information, reports,
surveys or other property data delivered to Purchaser by or on behalf of Seller.
D. Seller's Representations and Warranties. Seller warrants and represents to
Purchaser that:
(i) Wells Seller does not know of any "wells" (within the meaning of
Minnesota Statutes Section 103I.005, Subd. 21) on the Premises and Seller
has not received notice of the existence of any "wells" on the Premises This
representation is intended to satisfy the requirements of Minnesota Statutes
Section 103I.235.
(ii) Storage Tanks /Individual Sewage Treatment Systems Seller is aware of
fuel tanks on the property. All tanks that seller is aware of have been
inspected and are within compliance. Other than the fuel tanks, seller does
not know of the existence of any underground tanks, wells or individual
sewage treatment systems on, within or serving the Premises; and, other
than the fuel tanks, to the best of Seller's actual knowledge, there are no
such underground tanks, wells, or individual sewage treatment systems
located on, within or serving the Premises. This statement is intended to
satisfy the requirements of Minnesota Statutes Section 115.55 and
Minnesota Statutes Section 116.48.
(iii) Methamphetamine Production To the best of Seller's knowledge, no
methamphetamine production has occurred on the Premises. This statement
is being made pursuant to the disclosure requirements of Minnesota Statutes
0
Section 152.0275.
(iv) Environmental Laws. Seller has no knowledge of and has not received
written notice of the presence or existence of any hazardous materials
regulated by any applicable federal, state, county or local governmental
authorities in amounts on the Premises that violate existing law.
(v) Rights of Others to Purchase Premises. Seller has not entered into any other
contracts for the sale of the Premises, nor are there any rights of first refusal
or options to purchase the Premises or any other rights of others that might
prevent the consummation of this Agreement.
(vi) Seller's Defaults. Seller has not received notice of default concerning any of
its obligations or liabilities regarding the Premises.
(vii) Proceedings Seller has not received written notice of any action, litigation,
investigation, condemnation or proceeding of any kind pending or threatened
against Seller or any portion of the Premises.
(viii) Certificates of Occupancy. Seller has received no notice of actual or
threatened cancellation or suspension of any certificates of occupancy for
any portion of the Premises.
(ix) Authority Seller is Municipal Corporation; Seller is duly qualified to
transact business in the State of Minnesota; Seller has the requisite power
and authority to enter into and perform this Agreement and those Closing
documents signed by it; such documents have been or will be duly
authorized by all necessary action on the part of Seller and have been or
will be duly executed and delivered; such execution, delivery and
performance by Seller of such documents does not conflict with or result
in a violation of any judgment, order, or decree of any court or arbiter to
which Seller is a party; such documents are valid and binding obligations
of Seller, and are enforceable in accordance with their terms, subject to
bankruptcy, reorganization, insolvency, moratorium and other. laws
affecting the rights and remedies of creditors generally and principles of
equity.
(x) Leases Except for the Roadrunner Lease, which shall be terminated as of
the date of closing, all other leases, including that certain lease between
the Seller and Beniek Property Services Inc., dated October 10, 2011 and
the Agreement between Seller and Beniek property Services Inc., dated
May 11, 2012, shall be assigned to Purchaser on the date of closing.
Seller has made or will make available to Purchaser a correct and
complete copy of all leases ( "Leases ") affecting the Premises and any
amendments thereto or guaranties thereof, together with a current rent roll
for the Premises ( "Rent Roll "). The information regarding the Leases is
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or will be correct and complete in all material respects as of the date of
delivery. The Leases are in full force and effect and neither Seller, nor,
except as disclosed on the Rent Roll, any tenant, is in default under the
Leases. There are no other leases or possessory rights of others regarding
the Premises.
(xi) Contracts Seller has made or will make available to Purchaser a correct
and complete copy of all service and maintenance contracts, equipment
leases and other contracts (collectively, the "Contracts ") which will be in
effect for the Premises as of the Closing Date. The Contracts are in full
force and effect, and neither Seller, nor any other party to the Contracts, is
in default under the Contracts.
(xii) Permits. Seller has made or will make available to Purchaser a correct and
complete copy of all permits and licenses in effect for or issued in
connection with the ownership or operation of the Premises (collectively,
the "Permits "). Seller will transfer the Permits, if any, to Purchaser upon
Closing.
(xiii) Removal of Premises from Market Until such time as this Agreement has
terminated, the Seller, and Seller's agents, shall not offer the Premises for
sale.
Each of the representations and warranties herein contained shall survive the Closing
for a period of twelve (12) months from the Closing Date.
E. Termination. Purchaser may terminate this Agreement by written notice to Seller at
any time prior to the end of the Due Diligence Period on account of any contingency
specified in this Agreement relating to the Inspection in which event the Earnest
Money shall be refunded to the Purchaser.
5. Control of Premises
A. Until the Closing, except for Purchaser's indemnification, repair and restoration
obligations set forth in Section 4.13. above and Purchaser's obligations under the
Roadrunner Lease, Seller shall have the full responsibility and the entire liability for
any and all damages or injury of any kind whatsoever to the Premises. During such
time, Seller shall maintain all existing insurance coverage for the Premises and
otherwise operate and maintain the Premises in a manner consistent with Seller's
past practices.
B. If, prior to closing, the Premises shall be the subject of an action in eminent domain
or a proposed taking by a governmental authority, whether temporary or permanent,
then Purchaser shall have the right to terminate this Agreement within thirty (30)
days of receipt of written notification of such condemnation from Seller, in which
case, Purchaser shall be entitled to a refund of the Earnest Money plus any interest
earned thereon, and Purchaser and Seller shall each be released from any further
obligations and liability under this Agreement, except for any provisions of this
Agreement which are made to survive the termination of this Agreement. If
Purchaser does not elect to terminate this Agreement within said thirty (30) day
period, then any and all proceeds arising out of any such eminent domain or taking,
shall be paid over to or assigned to Purchaser on the Closing Date without
adjustment to the Purchase Price.
C. If, subsequent to the date hereof and prior to the Closing Date, all or any material
portion of the Premises shall be destroyed or damaged by one or more incidents of
vandalism, fire and/or other casualty, whether or not covered by insurance, Seller
shall immediately give Purchaser notice of such occurrence, and Purchaser may
within fifteen (15) days after receipt of such notice, elect to (a) terminate this
Agreement, in which event all obligations of the parties hereunder shall cease and
this Agreement shall have no further force and effect, and the Escrow Agent shall
immediately refund the Earnest Money to Purchaser, or (b) close the transaction
contemplated hereby as scheduled (except that if the Closing Date is less than
fifteen (15) days following Purchaser's receipt of such notice, Closing shall be
delayed until Purchaser makes such election), in which event Purchaser shall have
the right to participate in the adjustment and settlement of any insurance claim
relating to said damage, and Seller shall assign and/or pay to Purchaser at Closing
their right in all insurance proceeds collected or claimed with respect to said loss or
damage plus any deductible or self - insured amount. Only damage or destruction to
the Premises, which is reasonably estimated to cost in excess of $100,000, shall be
deemed to be material. With respect to damage or destruction to the Premises
which is not material, Purchaser shall be obligated to close the transaction and
Seller shall assign all insurance claims, if any, to Purchaser and pay to Purchaser
the amount of deductible applicable under Seller's insurance policy.
6. No Representations by Seller EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT
MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE PREMISES, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER
THAN SELLER'S LIMITED OR SPECIAL WARRANTY OF TITLE TO BE SET
FORTH IN THE DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT
PHYSICAL OR ENVIRONMENTAL CONDITIONS, UTILITIES, ACCESS,
OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE PREMISES WITH GOVERNMENTAL
LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY PROPERTY
DATA OR OTHER INFORMATION PERTAINING TO THE PREMISES DELIVERED
TO PURCHASER BY SELLER, OR ANY OTHER MATTER OR THING REGARDING
THE PREMISES. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON
THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS
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AGREEMENT, SELLER SHALL SELL AND PURCHASER SHALL ACCEPT THE
PREMISES "AS IS, WHERE IS, WITH ALL FAULTS ". PURCHASER HAS NOT
RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR
BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES, GUARANTIES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PREMISES OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT
LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH
RESPECT TO THE PREMISES) MADE OR FURNISHED BY SELLER, THE
MANAGER OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT
REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER
MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING,
UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED,
OR WILL HAVE HAD THE OPPORTUNITY TO CONDUCT PRIOR TO CLOSING,
SUCH INVESTIGATIONS OF THE PREMISES, INCLUDING BUT NOT LIMITED
TO, THE PHYSICAL, ENVIRONMENTAL AND GEOTECHNICAL CONDITIONS
THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF OF THE
CONDITION OF THE PREMISES AND THE EXISTENCE OR NONEXISTENCE OR
CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR
TOXIC SUBSTANCES OR MATERIALS ON, WITHIN, UNDER OR DISCHARGED
FROM THE PREMISES, AND WILL RELY SOLELY UPON SAME AND NOT UPON
ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS
AGENTS, OFFICERS, DIRECTORS, SHAREHOLDERS OR EMPLOYEES WITH
RESPECT THERETO.
UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, ADVERSE PHYSICAL,
ENVIRONMENTAL AND GEOTECHNICAL CONDITIONS MAY HAVE BEEN
REVEALED BY PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON
CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT),
LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING
ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE
ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER' OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY
REASON OF OR ARISING OUT OF ANY LATENT OR PATENT PHYSICAL
CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS (INCLUDING,
WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL
OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS
REGARDING THE PREMISES.
Seller and Purchaser agree that the provisions of this Section 6 shall survive the closing of
9
the transaction contemplated by this Agreement.
7. Anti - Terrorism, Executive Order 13224 and Public Law 107 -56. The Purchaser
represents that it is not in violation of any laws relating to terrorism or money laundering
( "Anti- Terrorism Laws "), including Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001 (the "Executive Order "), and the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Public Law 107 -56. The Purchaser or, to the knowledge
of the Purchaser, none of its agents acting or benefiting in any capacity in connection
with the transaction, is any of the following:
A. Person or entity that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order;
B. Person or entity owned or controlled by, or acting for or on behalf of, any Person or
entity that is listed in the annex to, or is otherwise subject to the provisions of, the
Executive Order;
C. Person or entity with which Seller is prohibited from dealing or otherwise engaging
in any transaction by any Anti - Terrorism Law;
D. Person or entity that commits, threatens or conspires to commit or supports
"terrorism" as defined in the Executive Order; or
E. Person or entity that is named as a "specially designated national and blocked
person" on the most current list published by the U.S. Treasury Department Office
of Foreign Asset Control at its official website or any replacement website or other
replacement official publication of such list.
8. Closing The closing of the purchase and sale ( "Closing ") shall take place thirty (30) days
after the end of the Due Diligence Period (as the same may be extended) or at anytime
before thirty (30) days after the end of the Due Diligence Period if agreed upon by the
parties (the "Closing Date "). The closing shall take place at the offices of Escrow Agent or
at such other place as Seller and Purchaser may mutually determine. Possession of the
Premises shall be delivered to Purchaser on the Closing Date.
9. Obligations At Closing At or prior to the Closing Date,
A. Seller shall:
(i) Execute and deliver the Contract for Deed;
(ii) Execute and deliver to Purchaser the affidavit of Seller confirming that
Seller is not a "foreign corporation" within the meaning of Section 1445
of the Internal Revenue Code.
PJ
(iii) Execute and deliver to Purchaser an affidavit of Seller.
(iv) Deliver a closing statement prepared by Escrow Agent and such other
documents as may be reasonably necessary to fulfill the covenants and
obligations of this Agreement to be performed by Seller, all in a form
reasonably satisfactory to Purchaser and Seller.
(v) Deliver an Assignment and Assumption of Leases ( "Assignment and
Assumption of Leases ") conveying the Leases, if any, and any security
deposits, pet deposits, prepaid rents or collections and guarantees
regarding the Leases to Purchaser, free and clear of all encumbrances.
(vi) Deliver an Assignment and Assumption of Contracts ( "Assignment and
Assumption of Contracts ") conveying the Contracts, if any, to Purchaser,
free and clear of all encumbrances.
(vii) Deliver an Assignment and Assumption of Permits ( "Assignment and
Assumption of Permits ") conveying the Permits, if any, to Purchaser.
B. Purchaser shall:
(i) Tender the Down Payment to Seller pursuant to Section 2.B. above.
(ii) Execute and deliver to Seller the Contract for Deed and any other document
that is reasonably requested of Purchaser.
(iii) Record and pay for recording the Contract for Deed; and
(iv) Deliver a closing statement prepared by Escrow Agent and such other
documents as may be reasonably necessary to fulfill the covenants and
obligations of this Agreement to be performed by Purchaser, all in a form
reasonably satisfactory to Purchaser and Seller.
(v) Deliver the Assignment and Assumption of Leases, Assignment and
Assumption of Contracts and Assignment and Assumption of Permits,
pursuant to which Purchaser will assume the obligations of Seller under
the Leases, Contracts and Permits, if any, that arise on or after the Closing
Date.
10. Delivery of Purchase Price; Obligations At Closing At Closing, subject to the terms,
conditions, and provisions hereof and the performance by Seller of its obligations as set
forth herein, the Earnest Money, together with accrued interest thereon, shall be delivered
to Seller and credited against the Purchase Price, and Purchaser shall deliver the down
payment to Seller pursuant to Section 2.13. above.
11. Closing Costs The following costs and expenses shall be paid as follows in connection
10
with the Closing:
A. Seller shall pay:
(i) One -half (1/2) of the closing fee charged by Escrow Agent in connection
with the Closing of this transaction.
(ii) The costs of the Title Commitment.
(iii) All other charges customarily paid by sellers in similar transactions.
(iv) Its own attorney's fees.
B. Purchaser shall pay the following costs in connection with the Closing:
(i) The Escrow Agent's customary charges to buyers for document drafting,
recording, and miscellaneous charges.
(ii) The fee to record the Contract for Deed with the County land title recorder.
(iii) The cost of the ALTA Owner's Title Insurance Policy, including the cost of
any endorsements or extended coverage provisions.
(iv) The cost of the Survey, if Purchaser elects to obtain the Survey.
(v) One -half (1/2) of the closing fee charged by Escrow Agent in connection
with the Closing of this transaction.
(vi) Its own attorney's fees.
12. Pro - rations The following pro- rations shall be made as of the Closing Date, with
Purchaser treated as the owner of the Premises on the Closing Date:
A. Taxes. There are no real property taxes payable in 2012. Purchaser shall be
responsible for all real property taxes due and payable in subsequent years.
B. Assessments. All charges for improvements or services already made to or which
benefit the Premises, and all levied and pending assessments (general or special)
arising out of or in connection with any assessment district created or confirmed
prior to the Closing Date shall be paid in full by Seller at Closing.
C. Utilities and Operating Expenses. All utilities and operating expenses for the
Premises will be allocated between Seller and Purchaser as of the Closing Date. All
utilities and operating expenses payable before the Closing Date shall be divided
between Purchaser and Seller as set forth in Paragraph 4 of the Roadrunner Lease.
All utilities and operating expenses due on or after the Closing Date shall be paid by
11
the Purchaser. Purchaser shall deliver written notice to each of the utility
companies providing services to the Premises (with copies to Seller), advising such
utility companies of the transfer of the Premises, and shall make appropriate
arrangements with such utility companies to deliver all future bills for services to
Purchaser. Nothing herein relieves the Purchaser of any obligations to pay utilities
and operating expenses pursuant to the Roadrunner Lease.
13. Brokerage Each party is responsible to compensate any brokers or representatives
engaged by that party, and hereby agrees to indemnify, defend and hold harmless the other
party for any claim (including reasonable expenses incurred in defending such claim) made
by a broker, sales agent or similar party claiming to be entitled to a commission in
connection with this transaction by reason of the acts of the indemnifying party.
14. Remedies If either party defaults under this Agreement, the non - defaulting party shall
have the right to give written notice of such default to the defaulting parry. If Purchaser fails
to cure such default within five (5) business days of the date of such notice from Seller,
Seller may cancel this Agreement pursuant to Minn. Stat. § 559.21. If Seller fails to cure
such default within five (5) business days of the date of such notice from Purchaser,
Purchaser may either: (a) immediately terminate this Agreement by delivering to Seller at
the address noted in Section 16.D. a Notice of Termination executed by an authorized
representative(s) of Purchaser at which time all Earnest Money and interest thereon, if
any, shall be immediately returned to Purchaser; or (b) pursue an action for specific
performance. The foregoing is the exclusive remedy for either Party. All other remedies,
including damages for breach, equitable remedies, specific performance, and all other
remedies at law or equity are waived and relinquished by each of the Parties.
15. Escrow Escrow Agent is authorized and agrees by acceptance thereof to promptly deposit
the Earnest Money as provided herein and to hold same in escrow and to disburse the same
in accordance with the terms and conditions of this Agreement. The sole duties of Escrow
Agent regarding the Earnest Money shall be those described herein, and Escrow Agent
shall be under no obligation to determine whether the other parties hereto are complying
with any requirements of law or the terms and conditions of any other agreements among
said parties. Escrow Agent may conclusively rely upon and shall be protected in acting
upon any notice, consent, order or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties to this Agreement. Escrow Agent
shall have no duty or liability to verify any such notice, consent, order or other document,
and its sole responsibility shall be to act as expressly set forth in this Agreement. Escrow
Agent shall be under no obligation to institute or defend any action, suit or proceeding in
connection with this Agreement. If Purchaser and Seller execute any separate escrow
instructions or an escrow agreement with Escrow Agent, then in the event of a conflict
between the terms of such escrow instructions or escrow agreement and the terms of this
Agreement, the terms of this Agreement shall control.
16. Miscellaneous The following general provisions govern this Agreement.
A. No Waivers. The waiver by either party hereto of any condition or the breach of
12
any term, covenant or condition herein contained shall not be deemed to be a
waiver of any other condition or of any subsequent breach of the same or of any
other term, covenant or condition herein contained. Purchaser, in its sole discretion
may waive any right conferred upon Purchaser by this Agreement; provided that
such waiver shall only be made by Purchaser giving Seller written notice
specifically describing the right waived.
B. Time of Essence. Time is of the essence of this Agreement.
C. Governing Law. This Agreement is made and executed under and in all respects to
be governed and construed by the laws of the State of Minnesota and the parties
hereto hereby agree and consent and submit themselves to any court of competent
jurisdiction situated in the State of Minnesota.
D. Notices. All notices and demands given or required to be given by any party hereto
to any other party shall be deemed to have been properly given if and when
delivered in person, sent by facsimile (with verification of receipt) or three (3)
business days after having been deposited in any U.S. Postal Service and sent by
registered or certified mail, postage prepaid, addressed as follows (or sent to such
other address as any party shall specify to the other party pursuant to the provisions
of this Section):
TO SELLER
City of Chanhassen
ATTN: Todd Gerhardt
7700 Market Blvd.
Chanhassen, MN 55317
PHONE:
FAX:
TO PURCHASER
Roadrunner Truck Repair, Inc.
ATTN: Omar Jamal
1501 Park Road
Chanhassen, MN 55317
PHONE:
FAX:
with cony to
Gregerson, Rosow, Johnson & Nilan
ATTN: Richard F. Rosow
650 Third Ave. South
Suite 1600
Minneapolis, MN 55402
PHONE: (612) 436 -7477
FAX: (612) 349 -6718
with a cony to
Kalina, Wills, Gisvold & Clark, PLLP
Attn: Carole Clark Isakson
6160 Summit Drive
Suite 560
Minneapolis, MN 55430
PHONE: (763) 259 -3452
FAX: (763) 503 -7070
In the event either party delivers a notice by facsimile, as set forth above, such party
agrees to deposit the originals of the notice in a post office, branch post office, or
mail depository maintained by the U.S. Postal Service, postage prepaid and
addressed as set forth above. Such deposit in the U.S. Mail shall not affect the
deemed delivery of the notice by facsimile, provided that the procedures set forth
13
above are fully complied with.
Any party, by notice given as aforesaid, may change the address to which
subsequent notices are to be sent to such party.
E. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of each of the parties hereto.
F. Assi nment. Purchaser may not assign its rights under this Agreement, without
the prior written consent of the Seller which consent may be withheld in Seller's
sole discretion.
G. Invalidity. If for any reason any term or provision of this Agreement shall be
declared void and unenforceable by any court of law or equity it shall only affect
such particular term or provision of this Agreement and the balance of this
Agreement shall remain in full force and effect and shall be binding upon the
parties hereto.
H. Complete Agreement. All understandings and agreements heretofore had between
the parties are merged into this Agreement which alone fully and completely
expresses their agreement. This Agreement may be changed only in writing signed
by both of the parties hereto and shall apply to and bind the successors and assigns
of each of the parties hereto and shall not merge with the deed delivered to
Purchaser at closing.
I. Counterparts. This Agreement may be executed in one or more counterparts each
of which when so executed and delivered shall be an original, but together shall
constitute one and the same instrument.
J. Calculation of Time Periods. Unless otherwise specifically provided herein, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included, unless such last day is
a Saturday, Sunday or legal holiday under the laws of the State of Minnesota, in
which event the period shall run until the end of the next day which is neither a
Saturday, Sunday or legal holiday. The final day of such period shall be deemed to
end at 5:00 p.m., Central Standard Time.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first above written.
SELLER:
CITY OF CHANHASSEN
BY:
Name:
ITS:
PURCHASER
ROADRUNNER TRUCK REPAIR, INC.
BY:_
Name:
ITS:
BY:_
Name:
ITS:
BY:
Name:
ITS:
15
EXHIBIT A
PERMITTED EXCEPTIONS
1. Real estate taxes and special assessments for the year 2012 and thereafter, none now due or
payable.
2. Existing zoning laws, ordinances, rules and regulations and building codes and laws.
3. Drainage and utility easements dedicated and shown on the recorded plat of CHANHASSEN
LAKES BUSINESS PARK.
4. Any exception disclosed in the Title Commitment and not timely objected to by Purchaser
within the Objection Period (as said terms are defined in the Purchase Agreement to which this
Exhibit A is attached).
16
EXHIBIT B
DUE DILIGENCE DOCUMENTS
A copy of all current service contracts that relate or pertain to the Premises;
2. Copies of all engineering maintenance and environmental reports prepared for or in
connection with the Property, to the extent that the same are in the possession or
reasonable control of Seller;
3. Copies of all real estate tax statements associated with the Premises for the current
year and for the preceding 3 years;
4. Copies of all certificates of occupancy for the Premises;
5. A copy of all equipment specifications and manuals for the Premises that are in the
possession of the Seller;
6. A copy of all notices from any governmental authorities regarding the Premises;
and
7. Copies of any soils reports or structural reports in Seller's possession.
17
EXHIBIT C
CONTRACT FOR DEED
Ems?
CONTRACT FOR DEED
THIS CONTRACT FOR DEED (this "Contract ") is made on this day of
, 2012 (the "Contract Date "), by and between City of Chanhassen, a Minnesota
municipal corporation ( "Seller "), and Roadrunner Truck Repair Inc., a Minnesota corporation
( "Purchaser ").
Seller and Purchaser agree to the following terms:
1. PROPERTY DESCRIPTION. Seller hereby sells, and Purchaser hereby buys, real
property in Carver County, Minnesota, as legally described and depicted on Exhibit A
attached hereto and made a part hereof, together with all buildings, personal property, and
improvements thereon, and easements and rights benefitting or appurtenant thereto
(collectively, the "Property ").
Check here if part or all of the described real property is Registered (Torrens) ❑
Check applicable box:
® Seller certifies that Seller does not know of any wells on the Property.
❑ A well disclosure certificate accompanies this Contract or has been electronically
filed.
❑ Seller is familiar with the Property and Seller certifies that the status and number
of wells on the Property have not changed since the last previously filed well
disclosure certificate.
2. TITLE. Seller warrants that title to the Property is, on the Contract Date, subject only to
the following exceptions:
(a) Covenants, conditions, restrictions (without effective forfeiture provisions),
easements, and declarations of record, if any, that are acceptable to Purchaser in
Purchaser's sole and absolute discretion;
(b) Reservation of minerals or mineral rights by the State of Minnesota, if any;
(c) Drainage and utility easements dedicated and shown on the recorded plat of
CHANHASSAN LAKES BUSINESS PARK;
19
(d) Existing zoning laws, ordinances, rules and regulations and building codes and laws;
(e) Real estate taxes and special assessments for the year 2012 and thereafter, not now
due or payable; and
(f) Any other matters of record which are acceptable to Purchaser in Purchaser's sole
and absolute discretion.
3. DELIVERY OF DEED AND EVIDENCE OF TITLE. Upon Purchaser's full
performance of this Contract, Seller shall execute, acknowledge, and deliver to Purchaser
a Warranty Deed (the "Deed "), in recordable form, conveying marketable title to the
Property to Purchaser subject only to those exceptions referred to in Paragraph 2 of this
Contract and liens, encumbrances, adverse claims or other matters which Purchaser has
created, suffered or permitted to accrue after the date of this Contract.
4. PURCHASE PRICE AND PAYMENT. Purchaser shall pay to Seller at 7700 Market
Blvd., Chanhassen, Minnesota, 55317, or such other place designated by Seller in
writing, the sum of One Million Four Hundred Seventy Five Thousand and no /100 Dollars
($1,475,000.00), together with interest thereon at the rate of five percent (5 %) ( "Interest
Rate ") calculated per annum and computed on the basis of 365 days per year, but
charged on the actual number of days that the principal balance of the Purchase Price is
unpaid, as and for the purchase price (the "Purchase Price ") for the Property. The
Purchase Price shall be payable as follows:
(a) DOWN PAYMENT. Purchaser shall pay to Seller an Eighty Seven Thousand Six
Hundred and no /100 Dollars ($87,600.00) down payment ( "Down Payment ")
payable as follows:
(i) On the contract date, a Thirty Thousand and no /100 Dollar ($30,000.00)
down payment. This payment shall be transferred at closing from the
deposit from that certain lease between Seller and Purchaser dated March
1, 2012 ( "Roadrunner Lease "). However, if landlord has used any
portion of the deposit for purposes allowed under the Roadrunner Lease,
Purchaser shall pay the difference at closing to ensure a full Thirty
Thousand and no /100 Dollar ($30,000.00) down payment on the day of
closing.; and
(ii) 18 monthly payments of Three Thousand Two Hundred and no /100 Dollars
($3,200.00) totaling Fifty -Seven Thousand Six Hundred and no /100 Dollars
($57.600). Purchase shall make payments on the seventh day of each month
beginning on the seventh day of the first month after the closing and
continuing for 18 months.
(b) BALANCE OF PURCHASE PRICE. The remaining balance of the Purchase
Price shall be paid in equal monthly installments, which payments include
principal and interest accruing on the Purchase Price at the Interest Rate (which
amount represents monthly payments of the Purchase Price accruing interest at
the Interest Rate and amortized over a period of twenty (30) years commencing
20
on the Contract Date and continuing the same day of each month thereafter until
the fifth (5`") anniversary of the Contract Date, at which time the entire unpaid
balance of principal and accrued interest shall be due and payable in full, all as set
forth on the payment scheduled attached as Exhibit B hereto and made a part
hereof. Payments shall be credited first to interest and the remainder to principal.
Interest shall accrue at the Interest Rate from the Contract Date. The last payment
shall be a balloon payment.
Notwithstanding anything to the contrary, in no event shall the Interest Rate hereunder
exceed the maximum lawful rate. If under any circumstances Seller should ever receive
as interest under this Contract an amount which would exceed the lawful rate of interest
allowed by Minnesota law, then such amount that would be in excess of such lawful rate
of interest shall be applied to the reduction of the principal balance of the Purchase Price.
5. PREPAYMENT. Purchaser shall have the right to fully or partially prepay this Contract
at any time without penalty. Any partial prepayment shall be applied first to payment of
amounts then due under this Contract, including unpaid accrued interest, and the balance
shall be applied to the principal of the Purchase Price to be paid in the inverse order of
their maturity. Partial prepayment shall not postpone the due date of the installments to
be paid pursuant to this Contract or change the amount of such installments.
6. REAL ESTATE TAXES AND ASSESSMENTS. There are no real property taxes
payable in 2012. Purchaser shall pay, before penalty accrues, all real estate taxes and
installments of special assessments assessed against the Property which are due and
payable in all subsequent years. Seller warrants that the real estate taxes and installments
of special assessments which were due and payable in the years proceeding the year in
which this Contract is dated are paid in full. If the Property is subject to a recorded
declaration providing for assessments to be levied against the Property by any owners'
association, Purchaser shall promptly pay, when due, all assessments imposed by the
owners' association or other governing body as required by the provisions of the
declaration or other related documents.
7. PROPERTY INSURANCE.
(a) INSURED RISKS AND AMOUNTS. Purchaser shall keep all buildings,
improvements, and fixtures now or later located on or a part of the Property
insured against loss by fire, lightening, and such other perils as are included in a
standard "all- risk" endorsement, and against loss or damage by all other risks and
hazards covered by a standard extended coverage insurance policy, including,
without limitation, vandalism, malicious mischief, burglary, theft and, if
applicable, steam boiler explosion. Such insurance shall be in an amount no less
than full replacement cost of buildings, improvements and fixtures, without
deduction for physical depreciation. If any of the buildings, improvements, or
fixtures is located in a federally designated flood prone area, and if flood
insurance is available for that area, Purchaser shall procure and maintain flood
insurance in amounts reasonably satisfactory to Seller.
21
(b) OTHER TERMS. The insurance policy shall contain a loss payable clause in
favor of Seller which provides that Seller's right to recover under the insurance
shall not be impaired by any acts or omissions of Seller or Purchaser, and that
Seller shall otherwise be afforded all rights and privileges customarily provided a
mortgagee under the so- called standard mortgage clause.
(c) NOTICE OF DAMAGE. In the event of damage to the Property by fire or other
casualty, Purchaser shall promptly give written notice of such damage to Seller
and the insurance company.
8. DAMAGE TO THE PROPERTY AND INSURANCE PROCEEDS.
(a) APPLICATION OF INSURANCE PROCEEDS. If the Property is damaged by
fire or other casualty, the insurance proceeds paid on account of such damage
shall be applied to payment of the amounts payable by Purchaser under this
Contract, even if such amounts are not then due to be paid, unless Purchaser
makes a permitted election described in the next paragraph. Such amounts shall
be first applied to unpaid accrued interest and next to the installments to be paid
as provided in this Contract in the inverse order of their maturity. Such payment
shall not postpone the due date of the installments to be paid pursuant to this
Contract or change the amount of such installments. The balance of insurance
proceeds, if any, shall be the property of Purchaser.
(b) PURCHASER'S ELECTION TO REBUILD. If Purchaser is not in default under
this Contract, or after curing any such default, and if the mortgagees in any prior
mortgages and sellers in any prior contracts for deed do not require otherwise,
Purchaser may elect to have that portion of such insurance proceeds necessary to
repair, replace or restore the damaged Property (the "Repairs ") deposited in
escrow with a bank or title insurance company qualified to do business in the
State of Minnesota, or such other party as may be mutually agreeable to Seller
and Purchaser. The election may only be made by written notice to Seller within
sixty (60) days after the damage occurs. Also, the election will only be permitted
if the plans and specifications and contracts for the Repairs are approved by
Seller, which approval Seller shall not unreasonably withhold or delay. If such a
permitted election is made by Purchaser, Seller and Purchaser shall jointly
deposit, when paid, such insurance proceeds into such escrow. If such insurance
proceeds are insufficient for the Repairs, Purchaser shall, before the
commencement of the Repairs, deposit into such escrow sufficient additional
money to insure the full payment for the Repairs. Even if the insurance proceeds
are unavailable or are insufficient to pay the cost of the Repairs, Purchaser shall at
all times be responsible to pay the full cost of the Repairs. All escrowed funds
shall be disbursed by the escrowee in accordance with generally accepted sound
construction disbursement procedures. The costs incurred or to be incurred on
account of such escrow shall be deposited by Purchaser into such escrow before
the commencement of the Repairs. Purchaser shall complete the Repairs as soon
22
as reasonably possible and in a good and workmanlike manner, and in any event
the Repairs shall be completed by Purchaser within one (1) year after the damage
occurs. If, following the completion of and payment for the Repairs, there
remains any undisbursed escrow funds, such funds shall be applied to payment of
the amounts payable by Purchaser under this Contract in accordance with
Paragraph 8(a) above.
9. INJURY OR DAMAGE OCCURRING ON THE PROPERTY.
(a) LIABILITY. Seller shall be free from liability and claims for damages by reason
of injuries occurring on or after the Contract Date to any person or persons or
property while on or about the Property. Purchaser shall defend and indemnify
Seller from all liability, loss, cost, and obligations, including reasonable attorneys'
fees, on account of or arising out of any such injuries. However, Purchaser shall
have no liability or obligation to Seller for such injuries which are caused by the
negligence or intentional wrongful acts or omissions of Seller.
(b) LIABILITY INSURANCE. Purchaser shall procure and maintain liability
insurance against claims for bodily injury, death and property damage occurring
on or about the Property in amounts reasonably satisfactory to Seller and naming
Seller as an additional insured thereunder.
10. INSURANCE, GENERALLY. The insurance which Purchaser is required to procure
and maintain pursuant to Paragraphs 7 and 9 of this Contract shall be issued by an
insurance company or companies licensed to do business in the State of Minnesota. The
insurance shall be maintained by Purchaser at all times while any amount remains unpaid
under this Contract. The insurance policies shall provide for not less than sixty (60) days
written notice to Seller before cancellation, non - renewal, termination or change in
coverage, and Purchaser shall deliver to Seller a duplicate original or certificate of such
insurance policy or policies.
11. CONDEMNATION. If all or any part of the Property is taken in condemnation
proceedings instituted under power of eminent domain or is conveyed in lieu thereof
under threat of condemnation, the money paid pursuant to such condemnation or
conveyance in lieu thereof shall be applied to the Purchase Price, even if such amounts
are not then due to be paid. Such amounts shall be applied in the same manner as a
prepayment as provided in Paragraph 5 of this Contract. Such payments shall not
postpone the due date of the installments to be paid pursuant to this Contract or change
the amount of such installments. The balance, if any, in excess of the Purchase Price,
shall be the property of Purchaser.
12. WASTE, REPAIR, AND LIENS. PURCHASER'S RIGHT TO MAKE REPAIRS; NO
LIENS. Except for work reasonably necessary to permit Purchaser to comply with
Purchaser's obligations under this Contract, Purchaser shall not hire or perform any
repairs or improvements to or replacements of the Property having an aggregate cost in
excess of Twenty Thousand and no /100 Dollars ($20,000.00) without securing the prior
23
written consent of Seller. Purchaser will not cause or permit any mechanics' liens to be
recorded against the Property. Purchaser agrees to defend, indemnify, and hold Seller
harmless from any loss, damage, or expense incurred by Seller with respect to any party
asserting a mechanics' lien claim, it being understood and agreed that this undertaking
shall survive cancellation of this Contract or the delivery of the Deed.
13. COMPLIANCE WITH LAWS. Except for matters which Seller has created, suffered, or
permitted to exist prior to the Contract Date, Purchaser shall comply or cause compliance
with all laws and regulations of any governmental authority which affect the Property or
the manner of using or operating the same, and with all restrictive covenants, if any,
affecting title to the Property or the use thereof.
14. RECORDING OF CONTRACT; DEED TAX. Purchaser shall, at Purchaser's expense,
record this Contract in the office of the County Recorder of Carver County, Minnesota
within four (4) months after the Contract Date. Purchaser shall pay any penalty imposed
under Minnesota Statutes for failure to timely record this Contract. Seller shall, upon
Purchaser's full performance of this Contract, pay the deed tax due upon the recording of
the Deed.
15. ASSIGNMENT. Purchaser may not assign its rights under this Agreement, without the
prior written consent of the Seller which consent may be withheld in Seller's sole
discretion.
16. PROTECTION OF INTERESTS.
(a) PROTECTION OF SELLER'S INTERESTS. If Purchaser fails to pay any sum
of money required under the terms of this Contract or fails to perform any of
Seller's obligations as set forth in this Contract, Seller may, at Seller's option, pay
the same or cause the same to be performed, or both, and the amounts so paid by
Seller and the cost of such performance shall be payable at once, with interest at
the Interest Rate stated in Paragraph 4 of this Contract, together with a four
percent (4 %) late payment fee, as an additional amount due Seller under this
Contract. If Purchaser hereafter creates, suffers or permits to accrue, any
mortgage, contract for deed, lien or encumbrance against the Property which is
not herein expressly approved by Seller, and provided Seller is not in default
under this Contract, Purchaser shall timely pay all amounts due thereon, and if
Purchaser fails to do so, Seller may, at Seller's option, pay any such delinquent
amounts or take any actions reasonably necessary to cure defaults thereunder and
deduct the amounts so paid together with interest at the Interest Rate stated in
Paragraph 4 of this Contract from the balance of the Purchase Price..
(b) PROTECTION OF PURCHASER'S INTERESTS. If Seller fails to pay any sum
of money required under the terms of this Contract or fails to perform any of
Seller's obligations as set forth in this Contract, Purchaser may, at Purchaser's
option, pay the same or cause the same to be performed, or both, and the amounts
so paid by Purchaser and the cost of such performance shall be payable at once,
24
with interest at the Interest Rate stated in Paragraph 4 of this Contract, together
with a four percent (4 %) late payment fee, as an additional amount due Purchaser
under this Contract. If Seller hereafter creates, suffers or permits to accrue, any
mortgage, contract for deed, lien or encumbrance against the Property which is
not herein expressly approved by Purchaser, and provided Purchaser is not in
default under this Contract, Seller shall timely pay all amounts due thereon, and if
Seller fails to do so, Purchaser may, at Purchaser's option, pay any such
delinquent amounts or take any actions reasonably necessary to cure defaults
thereunder and deduct the amounts so paid together with interest at the Interest
Rate stated in Paragraph 4 from the balance of the Purchase Price.
17. DEFAULTS AND REMEDIES. The time of performance by Purchaser of the terms of
this Contract is an essential part of this Contract. If Purchaser fails to timely perform
any term of this Contract, Seller may, at Seller's option, elect to declare this Contract
cancelled and terminated by notice to Purchaser in accordance with applicable law or
elect any other remedy available at law or in equity. Neither the extension of the time for
payment of any sum of money to be paid hereunder nor any waiver by Seller of Seller's
rights to declare this Contract forfeited by reason of any breach shall in any manner affect
Seller's right to cancel this Contract because of defaults subsequently occurring, and no
extension of time shall be valid unless agreed to in writing. After service of notice of
default and failure to cure such default within sixty (60) days, Purchaser shall, upon
demand, surrender possession of the Property to Seller, but Purchaser shall be entitled to
possession of the Property until the expiration of such period. Failure by Seller to
exercise the remedy available under this Paragraph 17 shall not constitute a waiver of the
right to exercise such remedy thereafter.
18. BINDING EFFECT. The terms of this Contract shall run with the land and bind the
parties hereto and their successors in interest.
19. HEADINGS. Headings of the paragraphs of this Contract are for convenience only and
do not define, limit or construe the contents of such paragraphs.
20. COUNTERPARTS. This Contract may be executed separately and independently, in any
number of counterparts, each of which when so executed and delivered shall be deemed
an original, but such counterparts shall together constitute but one and the same
instrument.
21. RIGHT OF FIRST REFUSAL. In the event that Seller wishes to sell, assign, or
otherwise convey its interest in this Contract, or any part thereof, Purchaser shall have a
right of first refusal with respect to such sale, assignment, or conveyance. In that regard,
Seller shall give Purchaser written notice of the specific terms of any offer to so purchase
Seller's interest and Purchaser shall have ten (10) days after receipt of said notice to
notify Seller, in writing, of Purchaser's intention to so purchase the interest of Seller. If
Purchaser fails to so notify Seller, Seller shall have the right to then convey its interest to
the proposed assignee. If Purchaser elects to so purchase the interest of Seller, it shall so
purchase that interest pursuant to the terms of the offer, except that Purchaser shall close
25
its purchase of Seller's interest in the later to occur of (a) the date when the proposed
assignee would have performed, or (b) sixty (60) days following the date when Purchaser
notified Seller of its intention to exercise Purchaser's right of first refusal.
22. ENVIRONMENTAL. Purchaser shall not bring, store, generate, or treat hazardous
wastes or substances or petroleum products upon the Property, except for small quantities
which are stored and used in compliance with applicable law. Purchaser hereby agrees to
indemnify, defend and hold Seller harmless from any and all claims, demands, actions,
causes of action, liabilities.
23. CURRENT LEASES. That certain lease between the Seller and Beniek Property
Services Inc., dated October 10, 2011 ( "Beniek Lease ") and the Agreement between
Seller and Beniek property Services Inc., dated May 11, 2012 ( "Beniek Agreement "),
have been assigned to Purchaser as of the date of closing. Should Purchaser cancel and
terminate this Contract for Deed pursuant to paragraph 17, both the Beniek Lease and the
Beniek Agreement shall automatically by virtue of this paragraph be assigned back to
Seller. Purchaser hereby irrevocably nominates, constitutes, and appoints and designates
the Seller as its attorney -in -fact for the sole purpose and right to execute any document
necessary to evidence and confirm said assignment.
24. NEW LEASES. Purchaser must obtain Seller's written consent prior to entering into any
new leases (each, a "New Lease" and collectively, "New Leases ") with tenants for all or
a portion of the Property. Purchaser must obtain Seller's written approval of all terms
and conditions for the New Leases. Further, Purchaser shall not cause or permit any
mechanics' liens or other liens to attach to the Property as a result of the New Leases. If
any such lien shall attach, Purchaser shall have one hundred twenty (120) days to remove
or satisfy said lien. If Purchaser fails to do so, Seller shall have the option of. (i) taking
such steps or paying such amounts as it deems reasonable to satisfy or discharge said
lien; or (ii) declaring this Contract to be in default, in which event Seller shall have the
right to exercise any remedy it may have in the event of any other default hereunder. In
the event Seller satisfies or discharges said lien the amount paid by Seller plus Seller's
expenses and attorney's fees incurred in obtaining such satisfaction or discharge shall be
added to the principal amount due under this Contract and shall be immediately due and
payable by Purchaser. Purchaser agrees to defend, indemnify, and hold Seller harmless
from any loss, damage, or expense incurred by Seller with respect to any party asserting a
mechanic's lien claim, it being understood and agreed that this undertaking shall survive
the cancellation of this Contract or the delivery of the Deed.
25. ESCROWS. In Addition to the monthly payments of principal and interest, Purchaser
shall deposit with Seller, with each payment, an amount representing one - twelfth (1/12)
of the annual real estate taxes, installments of special assessments, and insurance
premiums with respect to the Property (or such other amount as Seller is required to
deposit under any underlying encumbrance on the Property). The amount of such taxes,
special assessments, and insurance premiums, when unknown, shall be estimated by
Seller. Such deposit shall be used by Seller to pay real estate taxes, installments of special
assessments, and insurance premiums with respect to the Property when due. If Seller
26
fails to do so, Purchaser may, at Purchaser's option, pay any such delinquent amounts
and deduct the amounts so paid from payments next coming due under this Contract. If
the balance deposited with Seller is insufficient to pay such real estate taxes, special
assessments and insurance premiums when due, Purchaser shall pay the deficiency to
Seller upon written demand.
26. ALTERNATIVE ACCELERATION REMEDY. If Purchaser fails to timely perform any
term of this Contract, Seller may elect, on thirty (30) days written notice given to
Purchaser, to declare the entire unpaid Purchase Price, together with accrued interest
thereon, immediately due and payable in full and commence an action against Purchaser
to collect all amounts due hereunder. Purchaser shall have the right to reinstate this
Contract at any time before entry of final judgment against Purchaser for amounts due
hereunder if Purchaser: (i) pays Seller all sums due hereunder as of the date of
reinstatement; (ii) cures any other defaults existing under this Contract as of the date of
reinstatement; and (iii) pays all expenses incurred by Seller in enforcing this Contract,
including, but not limited to, reasonable attorneys' fees and costs. Seller shall deliver the
deed for the Property in the manner required by paragraph 3 of this Contract when all
amounts due hereunder have been paid.
27. ADDITIONAL PROVISIONS. EXCEPT AS EXPRESSLY SET FORTH IN THIS
CONTRACT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT
MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR
IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER'S LIMITED OR SPECIAL WARRANTY
OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES,
LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL CONDITIONS,
UTILITIES, ACCESS, OPERATING HISTORY OR PROJECTIONS, VALUATION,
GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH
GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF
ANY PROPERTY DATA OR OTHER INFORMATION PERTAINING TO THE
PROPERTY DELIVERED TO PURCHASER BY SELLER, OR ANY OTHER
MATTER OR THING REGARDING THE PROPERTY. PURCHASER
ACKNOWLEDGES AND AGREES THAT UPON THE EXECUTION BY BOTH
PARTIES OF THIS CONTRACT, SELLER SHALL SELL AND PURCHASER
SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS ".
PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS
NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED
WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO
(INCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY
INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE
PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGER OF THE
PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR
27
PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS
SPECIFICALLY SET FORTH IN THIS CONTRACT.
PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED,
OR WILL HAVE HAD THE OPPORTUNITY TO CONDUCT PRIOR TO
EXECUTION OF THIS CONTRACT, SUCH INVESTIGATIONS OF THE
PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL,
ENVIRONMENTAL AND GEOTECHNICAL CONDITIONS THEREOF, AS
PURCHASER DEEMS NECESSARY TO SATISFY ITSELF OF THE CONDITION
OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE
ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC
SUBSTANCES OR MATERIALS ON, WITHIN, UNDER OR DISCHARGED FROM
THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS,
OFFICERS, DIRECTORS, SHAREHOLDERS OR EMPLOYEES WITH RESPECT
THERETO.
UPON EXECUTION OF THIS CONTRACT, PURCHASER SHALL ASSUME THE
RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO,
ADVERSE PHYSICAL, ENVIRONMENTAL AND GEOTECHNICAL CONDITIONS
MAY HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS, AND
PURCHASER, UPON EXECUTION OF THIS CONTRACT, SHALL BE DEEMED TO
HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER'S
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM
AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND
COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR
UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER (AND SELLER' OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT
OF ANY LATENT OR PATENT PHYSICAL CONDITIONS, VIOLATIONS OF ANY
APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY
ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS,
EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PRIOPERTY.
(Remainder of page intentionally left blank. Signature pages follow)
M
SELLER:
CITY OF CHANHASSEN
COMMISSION
By:
Its:
By:
Its:
STATE OF
COUNTY OF
ss.
This instrument was acknowledged before me this day of
and
and the , respectively,
Chanhassen, a Minnesota municipal corporation, by and on behalf of the entity.
Notary Public
2012, by
the
of City of
29
PURCHASER:
ROADRUNNER TRUCK REPAIR, INC.
By:
Its:
By:
Its:
STATE OF MINNESOTA )
ss.
COUNTY OF )
This instrument was acknowledged before me this
and
day of , 2012, by
the and
respectively of Roadrunner Truck Repair,
corporation, on behalf of the corporation.
Notary Public
Inc., a Minnesota
30
EXHIBIT A
TO CONTRACT FOR DEED
Legal Description
Lots 10 and 11, Block 5, CHANHASSAN LAKES BUSINESS PARK, Carver County, Minnesota