2l TH10 GAP Project 04-06
CITY OF
CHANHASSEN
7700 Market Boulevard
PO Box 147
Chanhassen, MN 55317
Administration
Phone 952.227.1100
Fax 952.227.1110
Building Inspections
Phone 952.2271180
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
Planning &
Natural Resources
Phone: 952.227.1130
Fax 952.227.1110
Public Works
1591 Park Road
Phone 952.227.1300
Fax 952.227.1310
Senior Center
Phone 952.227.1125
Fax 952.227.1110
Web Site
www.ci.chanhassen.mn.us
~L
MEMORANDUM
TO:
Todd Gerhardt, City Manager
FROM:
tJ.
<7.
Paul Oehme, Dir. of Public Works/City Engineer \ ~
~,
DATE:
J an uary 9, 2006
SUBJ:
TH 101 GAP Project No. 04-06: Consider Land Purchase
Agreement with Lake Susan Apartments
REQUESTED ACTION
Approve land purchase agreement with Lake Susan Apartments.
BACKGROUND
On June 6, 2005, Council approved a municipal consent resolution for this
project.
DISCUSSION
The TH 101 Gap project is proposed to address system continuity and safety
issues along TH 101 from Lake Drive to 86th Street. TH 101 currently has four
lanes north of Lake Drive and will be constructed to four lanes south of 86th
Street as part of the TH 212 realignment project. The segment of TH 101 between
Lake Drive and 86th Street, a distance of approximately 2,400 feet, currently has
two lanes.
Existing TH 101 will be cul-de-saced near Lake Susan and turned back to the
City. Access for the properties living on existing TH 101 will be provided off of
Lake Susan Drive. Existing TH 101 will be reconstructed, widened to four lanes
and urbanized with concrete curb and gutter. The roadway section will be
consistent with the TH 101 roadway section MnDOT is building with the TH 212
project.
A pedestrian underpass is proposed at the current pedestrian crossing to improve
safety. Additional pedestrian trails will be built on the east side of TH 101.
Staff has been working with Lake Susan Apartments on trail easements and
drainage and utility easements for this project over the past several months.
These easements were dedicated at no cost to the City. The last piece of property
needed for the improvements is from Outlot I that Lake Susan Apartments
currently owns. This piece must be purchased instead of having an easement
dedicated. Outlot I is .47 acres and will have a trail constructed and a portion of
the trail underpass box culvert constructed on it. The purchase price is $4,094.64.
The Cily ot Chanhassen . A growing community with clean lakes, quality schools, a charming downtown, thriving businesses, winding trails, and beautiful parks. A great place to live, work, and play.
Todd Gerhardt
January 9,2006
Page 2
It is proposed that trail dedication funds be used for this purchase. The property
will eventually become MnDOT right-of-way.
The City Attorney has reviewed the agreement and finds it in order.
SCHEDULE
The project schedule is as follows:
Stream Relocation Construction Completion
Construction Agreement Executed
Roadway Construction Bid Opening
Roadway Construction Begins
Construction Completion
Summer, 2006
August, 2006
September, 2006
April, 2007
November, 2007
Attachment
c: Lynn P. Clarkowski, MnDOT
G:\ENGIPUBLIC\04-06 101 GAP\bkgd Is land purchase 010906.doc
VACANT LAND PURCHASE AGREEMENT
1. PARTIES. This Purchase Agreement ("Agreement") is made on the 2., '11f-day of
D~t:>LR--., 2005, by and between LAKE SUSAN APARTMENT HOMES, LLC, a
Minnesota limited liability corporation, ("Seller") and the CITY OF CHANHASSEN, a
Minnesota municipal corporation ("Buyer").
2. SALE AND PURCHASE. Seller agrees to sell and Buyer agrees to purchase
property located in the City of Chanhassen, County of Carver, State of Minnesota, legally
described as follows:
Outlot I, Villages on the Ponds, according to the recorded plat thereof,
(hereinafter "Subject Property").
The purchase price for the Subject Property is Four Thousand Ninety-Four and 64/100
($4094.64) Dollars ("Purchase Price") which Buyer shall pay on the date of closing.
The closing of this transaction shall be on or before February 16, 2006, at a location
agreed upon by Seller and Buyer ("Date of Closing").
3. DEED/MARKETABLE TITLE. Upon performance by Buyer, Seller shall
execute and deliver a Warranty Deed for the property conveying good and marketable title of
record, subject only to the following title exceptions ("Permitted Encumbrances"):
A. Building and zoning laws, ordinances, state and federal regulations; and
B. Exceptions provided on the attached Exhibit A.
4. POSSESSION. Seller shall deliver possession of the Subject Property on the
Date of Closing.
5. EXAMINATION OF TITLE. Seller shall, within a reasonable time after
acceptance of this Agreement, furnish a title insurance commitment certified to date to include
proper searches covering bankruptcies, state and federal judgments and liens, and levied and
pending special assessments. Buyer agrees to accept an owner's title policy in lieu of an abstract
of title. Seller shall pay all costs associated with the issuance of such commitment. Buyer shall
pay the premium for the owner's or mortgagee's policy of title insurance.
The commitment for title insurance shall be issued in the full amount of the Purchase
Price by a title insurance company reasonably satisfactory to Buyer ("title insurer") by which
said company commits to issue its policy of title insurance that:
(1) Insures that at Closing Buyer shall have good, marketable, insurable title of record
to the Property, free and clear of all liens, encumbrances, leases, claims and
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charges, all material easements, rights-of-way, covenants, conditions and
restrictions and any other matters affecting title, except for the Permitted
Encumbrances and for such matters as are approved by Buyer in writing.
(2) Waives or insures against the following standard exceptions:
(a) Facts which would be disclosed by a comprehensive survey of the
Property;
(b) Rights and claims of parties in possession; and
(c) Mechanic's, contractor's and material liens and lien claims.
Buyer shall be allowed twenty (20) business days after the receipt of the title commitment
for examination oftitle and making any objections, which shall be made in writing or deemed
waived. If any objection is so made, Seller shall have ten (10) business days from receipt of
Buyer's written title objections to notify Buyer of Seller's intention to make title marketable
within one hundred twenty (120) days from Seller's receipt of such written objection except that
Buyer is hereby notified that Seller will not remove or attempt to remove any of the objections to
the Permitted Encumbrances. If notice is given, payments hereunder required shall be postponed
pending correction oftitle, but upon correction oftitle and within ten (10) days after written
notice to Buyer, the parties shall perform this Agreement according to its terms. If no such
notice is given or if notice is given but title is not corrected within the time provided for, this
Agreement shall be null and void at the option of Buyer. Neither party shall be liable for
damages hereunder to the other and the earnest money shall be refunded by Seller. Buyer and
Seller agree to sign a cancellation of this Agreement.
6. TAXES, ASSESSMENTS AND UTILITIES.
A. Seller shall pay all general real estate taxes and installments of special
assessments due and payable in the year prior to the Date of Closing and in years
prior thereto. Seller and Purchaser shall prorate all general real estate taxes due
and payable on the Property in the year in which the Date of Closing occurs on a
per diem basis. Seller shall pay on or before the Date of Closing all levied and
pending special assessments associated with the Subject Property as of the date of
this Agreement.
7. REPRESENTATIONS OF SELLER. Seller does hereby covenant, warrant and
represent to the Buyer as follows:
A.
Seller has good, marketable, insurable title to the Property of record, free and
clear of all liens, encumbrances, leases, claims and charges, except for the
Permitted Encumbrances.
B.
To the best of Seller's knowledge and without any independent investigation, the
conveyance of the Property pursuant hereto will not violate any applicable statute,
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2
ordinance, governmental restriction or regulation, or any private restriction or
agreement.
C. There are no outstanding or unpaid claims, actions or causes of action related to
any transaction or obligation entered into or incurred by Seller with respect to the
Property prior to the date hereof.
D. Except as provided herein, Seller shall indemnify and defend Buyer and otherwise
hold Buyer harmless of, from and against any broker retained by Seller who may
be entitled to any commission or finder's fee in connection with the transaction
contemplated herein.
E. To the best of Seller's knowledge and without any independent investigation
beyond the environmental assessment report done in May 9,2001 a copy of which
has been provided to the City ("2001 Environmental Report"), there are no
underground storage tanks or wells on the Property, it being understood that the
foregoing representation shall be recited in the deed to be delivered by the Seller
at Closing.
F. Seller is not a foreign person as defined in g 1445( f)(3) of the Internal Revenue
Code or regulations issued thereunder.
G. There is no action, litigation, investigation, condemnation or other proceedings of
any kind pending or, to the best knowledge of Seller, threatened against Seller
with respect to the Property.
H. Without any independent investigation except for the 2001 Environmental Report,
Seller has no notice or knowledge of any toxic materials, hazardous wastes or
hazardous substances, as such terms are defined in the Resource Conservation and
Recovery Act of 1996, as amended (42 U.S.c. g6901, et seq.) or in the
Comprehensive Environmental Response Compensation and Liability Act of
1980, as amended (42 U.S.c. g9601, et seq.), including, without limitation, any
asbestos or asbestos-related products or materials and any oils, petroleum-derived
compounds or pesticides ("Hazardous Materials") have been generated, treated,
stored, released or disposed of or otherwise placed, deposited in or located on the
Property.
Seller warrants and represents to Buyer that to the best of Seller's knowledge, without
any independent investigation except for the 2001 Environmental Report, there have been no acts
or occurrences upon the property that have caused or could cause hazardous substances or
petroleum products to be released or discharged into the subsoil or ground water of the Subject
Property or other property in the area. Seller represents and warrants to Buyer that to the best of
Seller's knowledge, without any independent investigation except for the 2001 Environmental
Report, the Subject Property is free of hazardous substances and is not subject to any
"superfund" type liens or claims by governmental regulatory agencies or third parties arising
from the release or threatened release of hazardous substances in, on, or about the Subject
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Property. Seller shall indemnify and hold Buyer harmless from any and all claims, causes of
action, damages, losses, or costs (including lawyer's fees) relating to a breach of Seller's
warranties and representations herein. These warranties and indemnifications shall survive the
delivery of the Warranty Deed for a period of one year.
8. RIGHT OF ENTRY. Upon reasonable notice to Seller, Buyer and Buyer's
authorized agents shall have the right during the period from the date of this Agreement to the
Date of Closing to enter in and upon the Property in order to make, at Buyer's expense, surveys,
measurements, soil tests and other tests that Buyer shall deem necessary. Buyer agrees to restore
any resulting damage to the Property and to indemnify, hold harmless and defend Seller from
any and all claims and liability of any nature whatsoever arising from Buyer's right of entry
hereunder, including all actions, proceedings, demands, assessments, costs, expenses and
attorneys' fees. The foregoing indemnity shall survive the closing and/or termination of this
Purchase Agreement for a period of one year.
9. CLOSING DOCUMENTS.
A. At the Closing, Seller shall execute and/or deliver to Buyer the following
(collectively the "Closing Documents"):
(1) Warranty Deed. A Warranty Deed in recordable form subject to the
Permitted Encumbrances, which shall include the following hazardous
material and well representations:
(a) Grantor has not used the Property for the storage or disposal of any
hazardous substance as defined in Minn. Stat. ~ 115B.02, subd. 8; and
(b) Seller certifies that the Seller does not know of any wells on the
described Property.
(2) Seller's Affidavit. A standard form affidavit by Seller indicating that on
the date of Closing there are no outstanding, unsatisfied judgments, tax
liens or bankruptcies against or involving Seller or the Property; that there
has been no skill, labor or material furnished to the Property for which
payment has not been made or for which mechanic's liens could be filed,
except for any skill, labor, material requested by Buyer; and that to the
best of Seller's knowledge there are no other unrecorded interests in the
Property.
(3) Non-Foreien Person Certification. A certification in form and content
satisfactory to the parties hereto and their counsel, properly executed by
Seller, containing such information as shall be required by the Internal
Revenue Code, and the regulations issued thereunder, in order to establish
that Seller is not a "foreign person" as defined in ~ 1445( f)(3) of such Code
and such regulations.
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(4) Well Certificate. If there is a well located on the Property, a well
disclosure certificate in form and substance true to form for recording.
(5) Other Documents. All other documents reasonably determined by either
party and the title insurance company to be necessary to transfer and
provide title insurance for the Property.
B. At the Closing, Buyer shall execute and deliver to Seller the following:
(1) All documents reasonably determined by either party and the title
insurance company to be necessary to provide title insurance for the
Property; and
(2) Payment of the Purchase Price.
10. CLOSING COSTS. The costs relating to the closing of this transaction shall be
paid as follows:
A. Buyer shall pay:
(l) Recording fee for the Warranty Deed;
(2) The closing fee.
(3) The premium for owner's title insurance, including survey coverage.
(4) State deed tax;
(5) Conservation fee attributable to said deed.
11. NOTICES. All notices required herein shall be in wntmg and delivered
personally or mailed to the last known address and if mailed are effective as of the date of
mailing.
12. MINNESOTA LAW. This contract is governed by the laws of the State of
Minnesota.
13. WELL DISCLOSURE. Seller certifies that Seller does not know of any wells
on the property.
14. DISCLOSURE OF INDIVIDUAL ON-SITE SEWAGE TREATMENT
SYSTEM. Seller certifies that Seller does not know of any individual on-site sewage treatment
systems on the property.
15. SELLER'S AFFIDAVIT. At closing, Seller shall supplement the warranties and
representations in this Purchase Agreement by executing and delivering a Minnesota Uniform
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Conveyancing Blank [Form No. 116-M, 117-M, or 118-M] Affidavit of Seller. Seller's
Affidavit shall include Seller's representation that no encumbrances have been placed on the
property since the date of this Purchase Agreement, except for any encumbrances placed on the
Property by Buyer.
16. RESTRICTION ON ASSIGNMENT / NO SUCCESSION IN INTEREST.
Neither party may sell, assign, or convey, or enter into an agreement to sell, assign or convey
that party's rights in this Purchase Agreement without the express written consent of the other
party. Unless the express written consent is obtained, this agreement is not binding upon the
assigns of Seller and Buyer. This agreement is not binding upon and shall not inure to the
benefit of the successors of Seller and of Buyer.
17. TIME IS OF THE ESSENCE. Time is of the essence for all provisions of this
Purchase Agreement.
18. CAPTIONS. The paragraph headings or captions appearing in this Agreement
are for convenience only, are not a part of this Agreement and are not to be considered in
interpreting this Agreement.
19. ENTIRE AGREEMENT; MODIFICATION. This written Agreement
constitutes the complete agreement between the parties and supersedes any prior oral or written
agreements between the parties regarding the Property. There are no verbal agreements that
change this Agreement and no waiver of any of its terms will be effective unless in a writing
executed by the parties.
20. BINDING EFFECT. This Agreement binds and benefits the parties and their
heirs, representatives, successors and assigns.
21. GOVERNING LAW. This Agreement has been entered into in the State of
Minnesota and shall be governed by and construed in accordance with the laws of the State of
Minnesota.
22. RELATIONSHIP BETWEEN SELLER AND BUYER. Nothing in this
Agreement shall be construed as creating a joint venture between the Seller and Buyer or any
relationship other than that of seller and buyer.
SELLER:
LAKE SUSAN APARTMENT HOMES, LLC
BY:~
Its Chief Manager
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6
BUYER:
CITY OF CHANHASSEN
By:
Thomas A. Furlong, Mayor
By:
Todd Gerhardt. City Manager
STATE OF MINNESOTA )
) ss
COUNTY OF CARVER )
The foregoing instrument was acknowledged before me this _ day of
2005, by the Chief Manager of Lake Susan
apartment Homes, LLC, a Minnesota limited liability company, on behalf of said company.
Notary Public
STATE OF MINNESOTA )
) ss
COUNTY OF CARVER )
The foregoing instrument was acknowledged before me this _ day of
2005, by Thomas A. Furlong and Todd Gerhardt, respectively the Mayor and City Manager of
the City of Chanhassen, a Minnesota municipal corporation, on behalf of the corporation and
pursuant to the authority granted by its City Council.
Notary Public
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EXHIBIT A
EXCEPTIONS
1. Covenants, conditions, restrictions, easements and obligations contained in Declaration,
Villages on the Ponds (Common Interest Community No. 20) filed as Document No.
208539.
2. Covenants, conditions, restrictions and obligations contained in Villages on the Ponds 6th
Addition PUD/Development Contract filed as Document No. 205417.
3. The interest of the City ofChanhassen as evidenced in Final Certificates filed as
Document Nos. 149697 and 169460. Note: By Quit Claim Deed filed as Document No.
208532, the City ofChanhassen purported to transfer part of the subject property. No
documentation showing the authority of the City of Chanhassen to transfer this property
(which was condemned for road purposes) appears of record. (Affects Parcel 2 only)
4. Easements for roadway, public utility and trail purposes as evidenced by Quit Claim
Deed filed as Document No. 208532.
5. Sewer and utility easements in favor of the Metropolitan Waste Control Commission as
evidenced by Easement filed as Document No. 94144.
6. Public drainage easement in favor of the City of Chanhassen as contained in Grant of
Permanent Easement filed as Document No. 208536.
7. Public trail easement in favor of the City ofChanhassen as evidenced by Document No.
133500.
8. Sanitary sewer easement in favor of the City ofChanhassen as evidenced by Document
No. 41526.
9. Covenants, conditions and restrictions contained in Wetland Alteration Permit No. 96-5
by the City ofChanhassen, filed as Document No. 205418.
10. Rights of federal, state and local governments, as well as the rights of the public, in and
to wetlands, Riley Creek, and Lake Susan, all of which affect the subject property.
11. Covenants, conditions, restrictions and obligations contained in Villages on the Ponds
Phase I PUD/Development Contract filed as Document No. 205417, which was modified
by "Addendum B" filed as Document No. 233012 (said "Addendum B" does not affect
the property described in Schedule C).
12. Covenants, conditions, restrictions and obligations contained in Villages on the Ponds 6th
Addition PUD/Development Contract dated April 24, 2000, filed May 31,2000, as
Document No. 269663.
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13. Grant of Permanent Easement for Drainage and Utility Purposes in favor of the City of
Chanhassen dated May 26, 2000, filed May 31, 2000, as Document No. 269666.
14. Drainage and Storm Sewer Easement Agreement by and between Lake Susan Apartment
Homes, LLC, and Ausmar Development Company, LLC, dated May 26, 2000, filed June
5,2000, as Document No. 269921.
15. City ofChanhassen Site Plan Permit #99-9 filed January 22,2001, as Document No.
281044.
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