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2012-37 CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTY, MINNESOTA RESOLUTION DATE: June 25, 2012 RESOLUTION NO: 2012 -37 MOTION BY: McDonald SECONDED BY: Ernst RESOLUTION DISPENSING WITH STATUTORY REQUIREMENTS FOR REVIEW BY PLANNING COMMISSION OF THE ACQUISITION OF REAL PROPERTY WHEREAS, the City of Chanhassen ( "City ") is proposing to acquire property legally described in the attached Exhibit A ( "Subject Property ") under the terms of the proposed purchase agreement between Roadrunner Diesel Services ( "RRDS ") and the City ( "Purchase Agreement "), attached hereto and incorporated herewith as Exhibit `B "; and WHEREAS, Minn. Stat. §462.356, subd. 2 requires that the Planning Commission review the City's proposed disposal of real property for compliance with the comprehensive plan and to report to the City Council in writing its findings; and WHEREAS, Minn. Stat. §462.356, subd. 2 provides for an exception from the requirement for review by the Planning Commission upon 2/3 vote of the City Council dispensing with the requirement and finding that the disposal of the real property has no relationship to the comprehensive municipal plan. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CHANHASSEN, MINNESOTA: 1. The City Council finds that the disposal of the Subject Property under the Purchase Agreement has no relationship to the comprehensive municipal plan. 2. Review by the Planning Commission of the disposal of the Subject Property is hereby dispensed with, the proposed transaction is hereby approved, and the Mayor and City Manager are authorized and directed to execute all documents, and take all appropriate measures to acquire the Subject Property under the terms of the Purchase Agreement. Adopted this 25 day of June, 2012, by the City Council of the City of Chanhassen. ATTEST: AT: , Todd Gerhardt, City Manager Thomas A. Furlong, Mayor YES NO ABSENT Furlong Tjornhom Ernst Laufenburger McDonald 145943v1 EXHIBIT A Legal Description Lots 10 and 11, Block 5, CHANHASSAN LAKES BUSINESS PARK, Carver County, Minnesota 145943v1 EXHIBIT "B" Attach Copy of Purchase Agreement 145943v1 PURCHASE AGREEMENT THIS PURCHASE AGREEMENT (this "Agreement ") is made and entered into as of this day of 3 t A7 , 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 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 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 1 seventh 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 2 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 3 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 4 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 5 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.B. 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 6 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 7 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 8 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. 9 (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.B. 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 party. 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: TO PURCHASER: City of Chanhassen Roadrunner Truck Repair, Inc. ATTN: Todd Gerhardt ATTN: Omar Jamal 7700 Market Blvd. 1501 Park Road Chanhassen, MN 55317 Chanhassen, MN 55317 PHONE: PHONE: FAX: FAX: with copy to: with a copy to: Gregerson, Rosow, Johnson & Nilan Kalina, Wills, Gisvold & Clark, PLLP ATTN: Richard F. Rosow Attn: Carole Clark Isakson 650 Third Ave. South 6160 Summit Drive Suite 1600 Suite 560 Minneapolis, MN 55402 Minneapolis, MN 55430 PHONE: (612) 436 -7477 PHONE: (763) 259 -3452 FAX: (612) 349 -6718 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. 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. 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: PURCHASER: CITY OF CHANHASSEN ROADRUNNER TRUCK REPAIR, INC. BY: j BY: / /,/ Name: J t4 *S p ihtli 30— Na e: 4 , � S % , ITS: ttl eA4 ITS: . _ BY: BY: Name: T; del ( = .° k A nel r"" Name: ITS: C.1 Ls C r 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 1. 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 18 CONTRACT FOR DEED THIS CONTRACT FOR DEED (this "Contract ") is made on this ,;t 7 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. 1 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 (0 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 perfoimed, 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 ofpage intentionally left blank. Signature pages follow) 28 PURCHASER: ROADRUNNE ' TRUCK REPAIR, INC. /' h �, y: ,�� Its: / By: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF CARVER ) This instrument was acknowledged before me this 27th day of June, 2012, by 13/4 o h cc vn t d S h e,, k h 111; vLand , the P ; ,(z I,,-}- _ and respectively of Roadrunner Truck Repair, Inc., a Minnesota corporation, on behalf of the corporation. , "Ilk / „.., , No ry Pub c (j KAREN J.ENGELHARDT 3 ��.,;, . "' My Notary b ommissionExpir e s l J n 3 30 SELLER: CITY OF CHANHASSEN COMMISSION By: Y Its: By. , /4-!5 � I✓ , It.. STATE OF ) ss. COUNTY OF ) This instrument was acknowledged before me this day of , 2012, by and , the and the , respectively, of City of Chanhassen, a Minnesota municipal corporation, by and on behalf of the entity. Notary Public 29 EXHIBIT A TO CONTRACT FOR DEED Legal Description Lots 10 and 11, Block 5, CHANHASSAN LAKES BUSINESS PARK, Carver County, Minnesota