Loading...
Transmittal 04-28-2015CITY OF CHANHASSEN ENGINEERING DEPARTMENT 7700 Market Boulevard P.O. Box 147 CHANHASSEN, MN 55317 (952) 227-1100 FAX (952) 227-1170 TO: Randy Schold LETTER OF TRANSMITTAL 4/28/15 Schold Lot 2, Block 1, Gateway East 2"d Addition RBSC Chanhassen, LLC 8925 Twin Lakes Crossing Eden Prairie, MN 55347 WE ARE SENDING YOU N Attached ❑ Under separate cover via ❑ Shop drawings ❑ Copy of letter 1 the following items: ❑ Prints ❑ Plans ❑ Samples ❑ Specifications ❑ Change Order ❑ Pay Request ❑ THESE ARE TRANSMITTED as checked below: ❑ For approval ® Approved as submitted ❑ Resubmit copies for approval ® For your use ❑ Approved as noted ❑ Submit copies for distribution ❑ As requested ❑ Returned for corrections ❑ Return corrected prints ❑ For review and comment ❑ ❑ FORBIDS DUE ❑ PRINTS RETURNED AFTER LOAN TO US REMARKS COPY TO: e SIGNED: V �jQ1L�_ I im Meuwisse , (952) 227- 107 If enclosures are not as noted, kindly notify us at once. VACANT LAND PURCHASE AGREEMENT 1. PARTIES. This Purchase Agreement is made by and between the CITY OF CHANHASSEN, a Minnesota municipal corporation, located at 7700 Market Boulevard, Chanhassen, Minnesota 55317 ("Seller"), and RBSC CHANHASSEN, LLC, a Minnesota limited liability company, located 8925 Twin Lakes Crossing, Eden Prairie, MN 55347 ("Buyer"). 2. OFFER/ACCEPTANCE. Buyer offers to purchase and Seller agrees to sell real property located in the City of Chanhassen, County of Carver, State of Minnesota, as legally described in Exhibit "A" attached hereto and incorporated herein, together with all rights, easement and appurtenances pertaining thereto and all improvements, landscaping and foliage thereon (referred to herein as the "Property"). 3. PRICE AND TERMS. The price for the Property included in this sale is Five Hundred Thousand and No/100 Dollars ($500,000.00) ("Purchase Price"), which Buyer shall pay as follows: (i) Five Thousand and no/100 ($5,000.00) Dollars earnest money in hand paid to Seller, receipt whereof is hereby acknowledged, to be applied to the Purchase Price at Closing; and (ii) The balance of Four Hundred Ninety-five Thousand and No/100 Dollars ($495,000.00) in immediately available funds on the Date of Closing. 4. DEED/MARKETABLE TITLE. Upon performance by Buyer, Seller shall execute and deliver a Limited Warranty Deed conveying marketable title of record, subject to: A. Reservations of minerals or mineral rights by the State of Minnesota, if any; B. Building and zoning laws, ordinances, state and federal regulations; C. Applicable laws, regulations, zoning regulations and ordinances, whether federal, state or local; and D. The Declaration of Covenants, Conditions, and Restrictions identified under Paragraph 19(B)(2). E. Any other matters consented to by Buyer in writing or not timely objected to by Buyer. 180018v6 I 5. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. A. Prior Years' Delinquent Real Estate Taxes and Delinquent Special Assessments. Delinquent real estate taxes payable in years prior to the year of Closing and delinquent installments of special assessments certified for collection with real estate taxes payable in years prior to the year of Closing, together with penalty, interest and costs, shall be paid by Seller not later than the Date of Closing. B. Real Estate Taxes Payable in the Year of Closing. Seller and Buyer shall prorate all general real estate taxes due and payable on or pertaining to the Property in the year in which the Date of Closing occurs on a per diem basis. If the Property is a portion of one tax parcel, the prorated taxes payable herein shall be determined on a proportionate square footage basis. Seller shall pay on or before the Date of Closing all levied and pending special assessments associated with the Property as of the date of this Agreement. Seller shall pay penalty, interest and costs on any delinquent installment of taxes and special assessments payable in the year of Closing. C. Certified Special Assessments. All installments of special assessments certified for payment with the real estate taxes payable on the Property in the year of Closing shall be paid by Seller at Closing. D. All Other Levied Special Assessments. Seller shall pay on the Date of Closing all other special assessments levied against the Property as of the date of this Purchase Agreement. 6. SELLER'S BOUNDARY LINE, ACCESS, RESTRICTIONS AND LIEN WARRANTIES. Seller warrants that buildings on adjoining real property, if any, are entirely outside of the boundary lines of the Property. Seller warrants that there has been no labor or material furnished to the Property for which payment has not been made. Seller warrants that there are no present violations of any restrictions relating to the use or improvement of the Property. These warranties shall survive the delivery of the Limited Warranty Deed. 7. ACCESS PRIOR TO CLOSING. 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 by third persons of any nature whatsoever arising from Buyer's right of entry hereunder, including all actions, proceedings, demands, assessments, costs, expenses and attorneys' fees. Buyer shall not perform any invasive testing of the Property without Seller's prior written consent. Seller's consent may be conditioned upon any reasonable restrictions that Seller deems necessary. Buyer shall provide to Seller a copy of any such surveys, measurements, soil tests or other tests within five (5) days after receipt. 180018v6 2 8. POSSESSION. Seller shall deliver possession of the Property not later than the actual Date of Closing. 9. TITLE INSURANCE BY SELLER. Seller shall, within twenty-one (21) days of the date of this Agreement, furnish Buyer with a commitment for an Owner's Policy of Title Insurance ("Commitment") in the full amount of the Purchase Price issued by Title, certified to date to include proper searches covering bankruptcies, state and federal judgments and liens, by which said company commits to issue its policy of title insurance that insures that at closing Buyer shall have good, marketable and insurable title of record to the Property, free and clear of all liens, encumbrances, leases, claims and charges (except any permitted encumbrances). Buyer, at its cost, shall obtain an ALTA Survey of the Property within twenty-one (21) days of receipt of the Commitment ("Survey"). Buyer shall be allowed thirty (30) days after the receipt of the Commitment and Survey for examination of title and making any objections, which shall be made in writing or deemed waived. 10. TITLE CORRECTIONS AND REMEDIES. If any title objection is made by Buyer, Seller shall use its best efforts to make such title marketable within one hundred twenty (120) days from its receipt of Buyer's written objection. Marketability of title shall be determined according to Minnesota statues, Minnesota case law decisions, and the standards of Minnesota title standards. Pending correction of title, the payments hereunder required shall be postponed, but upon correction of title and within ten (10) days after written notice, Buyer shall perform as provided in this Agreement. If said title is not marketable and is not made so within the time provided for herein, Buyer may either: (i) terminate this Purchase Agreement by giving written notice by registered mail to Seller, in which event this Purchase Agreement shall become null and void and neither party shall be liable for damages hereunder to the other party and the Earnest Money shall be returned to Buyer; or (ii) elect to accept title in its unmarketable condition by giving written notice by registered mail to Seller, in which event the Limited Warranty Deed to be delivered at Closing Date shall except such objections. 11. NOTICES. Any notices required or permitted to be given hereunder shall be in writing and shall be effective (i) when delivered personally, (ii) when received by overnight courier service or facsimile communications (provided that a copy of such notice is deposited in the United States mail within one (1) business day of the facsimile transmission) or (iii) three (3) days after being deposited in the United States Mail (sent certified or registered, return receipt requested), in each case addressed as follows (or to such other address as the parties hereto may designate in the manner set forth herein): If to Buyer: RBSC Chanhassen, LLC 8925 Twin Lakes Crossing Eden Prairie, MN 55347 180018v6 3 If to Seller: City of Chanhassen 7700 Market Boulevard Chanhassen, Minnesota 55317 with a copy to: Campbell Knutson, P.A. 1380 corporate Center Curve, suite 317 Eagan, Minnesota 55121 Facsimile: 651-452-5550 Attn: Andrea McDowell Poehler 12. MINNESOTA LAW. This contract shall be governed by the laws of the State of Minnesota. 13. WELL DISCLOSURE. [Check one of the following: ] X Seller certifies that Seller does not know of any wells on the Property. Wells on the Property are disclosed by Seller on the attached Well Disclosure form. 14. DISCLOSURE OF INDIVIDUAL ON-SITE SEWAGE TREATMENT SYSTEM. [Check one of the following:] X Seller certifies that Seller does not know of any individual on-site sewage treatment systems on the Property. Individual on-site sewage treatment systems on the Property are disclosed by Seller on the attached Disclosure form. 15. SELLER'S COVENANTS, REPRESENTATIONS AND WARRANTIES. A. Seller as part of the consideration therefore, represents, warrants, and covenants with Buyer and its successors and assigns that: (1) Seller warrants and represents to Buyer that, to Seller's knowledge, without investigation, no entity or person has, at any time: a) "released" or actively or passively consented to the "release" or "threatened release" of any Hazardous Substance (as defined below) from any "facility" or "vessel" located on or used in connection with the Property or adjacent tracts in violation of applicable laws; or b) taken any action in "response" to a "release" in connection with the Property or adjacent tracts; or c) otherwise engaged in any activity or omitted to take any action which could subject Seller or Buyer to claims for intentional or negligent torts, strict or absolute liability, either pursuant to statute or common law, in connection with Hazardous Substances (as defined below) located in or on the Property or adjacent tracts, 1 8001 8v6 4 including the generating, transporting, treating, storage, or manufacture of any Hazardous Substance (as defined below) in violation of applicable law. The terns set within quotation marks above shall have the meaning given to them in the Comprehensive Environmental Response and Liability Act, 42 U.S.C. Sec. 9601 et sM., as amended ("CERCLA") and any state environmental laws. (2) Seller is the fee owner of the Property and has the present full authority and power to execute this Agreement and, on or prior to the Date of Closing, Seller shall have the full authority and power to close the sale of the Property. (3) There is no action, litigation, investigation, condemnation or proceedings of any kind pending, or to the best of the knowledge of Seller, threatened against Seller with regard to the Property. (4) Seller has good, marketable, insurable title to the Property, free and clear of all liens, encumbrances, claims and charges. (5) Seller is not foreign persons as defined in §1445(1)(3) of the Internal Revenue Code or regulations issued thereunder. (6) Seller has not received any notice of, and does not know of any possible, assessments to be levied against the Property. (7) Seller represents that there is public access to and from W. 79h Street to the Property. B. All of Seller's covenants, representations and warranties in this Agreement shall be true as of the date hereof and of the Closing Date, and shall be a condition precedent to the performance of Buyer's obligations hereunder. If Buyer discovers that any such covenant, representation, or warranty is not true, Buyer may elect prior to Closing, in addition to any of its other rights and remedies, to cancel this Agreement, or Buyer may postpone the Closing Date up to ninety (90) days to allow time for correction. If Buyer elects to proceed with the Closing following such discovery, Buyer shall be deemed to have waived its rights to assert a claim against Seller arising from the inaccuracy or untruthfulness of any such covenant, representation, or warranty. C. Seller shall provide to Buyer within ten (10) days of the execution of this Agreement, true and correct copies of any existing environmental assessment reports, soil reports and results of all soil tests and environmental audits, surveys, permits, licenses, leases, and complete copies of all contracts currently affecting the Property readily available or in the possession of Seller, and notices received within the last ninety (90) days from the city, state or other governmental 180018v6 5 authorities pertaining to uncured violations of any law, ordinance or regulation ("Due Diligence Documents"). D. PROTECTED HISTORICAL SITES. [Select either (1) or (2) below:] Seller represents that Seller does not know if there are historical, native American, or archeological materials on or in the property that might be protected by law. X Seller represents to the best of Seller's knowledge that the property does not have any American Indian burial grounds, other human burial grounds, ceremonial earthworks, historical materials, and/or other archeological sites that are protected by federal or state law. Buyer's obligation to close is contingent upon Buyer determining to Buyer's satisfaction that the property does not have any American Indian burial grounds, other human burial grounds, ceremonial earthworks, historical materials, and/or other archeological sites that are protected by federal or state law. 16. CLOSING. The Closing Date of this transaction shall take place no later than August 31, 2015, (the "Closing" or "Closing Date"). The Closing Date may be accelerated by mutual agreement of the parties if all contingencies contained herein are satisfied prior to conclusion of the Contingency Period. At closing, Seller and Buyer shall deliver to one another the instruments specified herein. The closing shall be at a location designated by Seller. Unless otherwise agreed by the parties in writing, in the event that any of the contingencies provided for in this Agreement are not satisfied prior to the Date of Closing, this Agreement shall be null and void and of no further force and effect. At closing, Seller and Buyer shall disclose their Social Security Numbers or Federal Tax Identification Numbers for the purposes of completing state and federal tax forms. 17. CLOSING DOCUMENTS. A. At the Closing, Seller shall execute and/or deliver to Buyer the following (collectively the "Closing Documents"): (1) Limited Warranty Deed. A Limited Warranty Deed in recordable form and reasonably satisfactory to Buyer, which shall include the following well representations: "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; and that there are no other unrecorded interests in the Property. 1aoo1sv6 6 (3) Non -Foreign 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(0(3) of such Code and such regulations. (4) Storage Tanks. If required, an affidavit with respect to storage tanks pursuant to Minn. Stat. § 116.48. (5) Well Certificate. If there is a well located on the Property, a well disclosure certificate in form and substance true to form for recording. (6) Certification. A certification that the representations and/or warranties made by Seller are materially the same as were in existence on the date of this Agreement or noting any changes thereto; (7) Other Documents. All other documents reasonably determined by either party or 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) Payment. Payment of the Purchase Price; and (2) Other Documents. All documents reasonably determined by either party or the title insurance company to be necessary to provide title insurance for the Property. 18. CLOSING COSTS. The following costs relating to the closing of this transaction shall be paid as follows: A. Buyer shall pay at Closing: (1) Recording fee and conservation fee attributable to the Limited Warranty Deed; (2) The premium for owner's title insurance, including survey coverage; (3) One-half the closing fee charged by the Title Company; and (4) All costs associated with obtaining government approvals and development of the Property. B. Seller shall pay at Closing: 180018v6 (1) State Deed Tax; (2) Recording fees for all documents determined to be necessary to transfer marketable title to the Buyer; (3) All costs of obtaining a title insurance commitment; (4) One-half the closing fee charged by the Title Company. 19. CONTINGENCIES AND ADDITIONAL TERMS. A. Buyer's Contingencies. The Buyer's obligations under this Agreement are expressly contingent upon Buyer's satisfaction with each of the following conditions: (1) Buyer determining on or before the Contingency Date, that it is satisfied, in its sole discretion, with the results of matters disclosed by any survey or by any environmental/engineering investigation or testing of the Property performed by Buyer or Buyer's agent. By executing this Agreement, Seller hereby authorizes Buyer to enter upon the Property at reasonable times to conduct the investigations and/or tests described herein. Buyer shall be solely responsible for all environmental tests and shall hold Seller harmless from any such costs and shall indemnify Seller for breach of this provision including reasonable attorneys' fees. (2) Buyer determining on or before the Contingency Date that it is satisfied in its sole discretion, with the results of matters disclosed by the Due Diligence Documents. (3) On or before Closing, Buyer obtaining all permits, licenses, variances and approvals, including, without limitation, obtaining site plan and zoning approvals, for Buyer's intended development of the Property, including Buyer's development of a circular landscaped island in the W. 79a' Street cul-de-sac owned by the City (the "Island"), and directional sign within the W. 79`x' Street Right -of -Way adjacent to the Great Plains Boulevard directing traffic to the location of the Property. (4) On or before Contingency Date, Buyer obtaining financing in satisfactory amounts and on satisfactory terms (including operating subsidies), as determined by Buyer, in its sole discretion, to acquire, manage, operate and rehabilitate the Property. (5) On or before the Contingency Date, Buyer shall investigate and be satisfied with the traffic access from W. 79' Street to the Property and the Property's access to all utility services, including gas, electric, water, storm and sanitary water services and internet/cable services. 1800180 8 (6) On or before the Contingency Date, Buyer's determination in Buyer's reasonable discretion, based on its inspections and any other relevant information that the condition of the Property is acceptable to Buyer. On or before the Closing Date, Buyer's determination that the Property is in materially the same condition on the Closing Date as it was during the time period of Buyer's inspection. (7) Buyer's satisfaction with the terms and form of a Declaration of Covenants, Conditions and Restrictions to be recorded by Seller against the Property prior to or at Closing, which provides for maintenance of the Island by the Owner of the Property and restricting the use of the Property for office, medical clinic or dental clinic for a period of forty (40) years from the date of Closing. The "Contingency Date" shall be 60 days after the Effective Date of this Agreement. If any of the foregoing contingencies have not been satisfied in Buyer's sole discretion on or before the Contingency Date or on or before Closing as described in the contingencies above, or waived by Buyer, then this Agreement may be terminated, at Buyer's option, by written notice from Buyer to Seller at any time prior to the Contingency Date or the Closing Date, as applicable to the individual contingency. Such notice of termination may be given at any time on or before the Contingency Date or the Closing Date, as applicable to the particular contingency. Upon such termination the Earnest Money shall be immediately returned to Buyer and upon such return, neither party will have any further rights or obligations regarding this Agreement or the Property. The contingencies set forth in this section are for the sole and exclusive benefit of Buyer, and Buyer shall have the right to waive the contingencies by giving notice to Seller. B. Seller's Contingencies. The Seller's obligations under this Agreement are expressly contingent upon Seller's satisfaction with each of the following prior to Closing: (1) On or before Closing, Buyer obtaining site plan approval from the City of Chanhassen for development of the Property ("Site Plan Approval"); (2) On or before Closing, Buyer obtaining site plan approval and all necessary permits, licenses, variances and approvals, including, without limitation, obtaining site plan and zoning approvals, for construction of the Island; (3) On or before Closing, Seller recording a Declaration of Covenants, Conditions and Restrictions, with terms and in a form acceptable to Seller, providing for maintenance of the Island by the Owner of the Property and restricting the use of the Property for office, medical clinic or dental clinic for a period of forty (40) years from the date of Closing. If any of the foregoing contingencies have not been satisfied in Seller's sole discretion, or waived by Seller, on or before the Closing, then this Agreement may be terminated, at Seller's option, by written notice from Seller to Buyer at any time at or prior to the Closing. Upon such 1800180 9 termination the Earnest Money shall be immediately returned to Buyer and upon such return, neither party will have any further rights or obligations regarding this Agreement or the Property. The contingencies set forth in this section are for the sole and exclusive benefit of Seller, and Seller shall have the right to waive the contingencies by giving notice to Buyer. C. Condemnation. If, prior to the Closing Date, eminent domain proceedings are commenced against all or any part of the Property, Seller shall immediately give notice to Buyer of such fact and at Buyer's option (to be exercised within ten (10) days after Seller's notice), this Agreement shall terminate, in which event neither party will have further obligations under this Agreement and the Earnest Money shall be refunded to Buyer. If Buyer shall fail to give such notice, there shall be no reduction in the Purchase Price, and Seller shall assign to Buyer at the Closing Date all of Seller's right, title and interest in and to any award made or to be made in the condemnation proceedings. Prior to the Closing Date, Seller will not initiate any condemnation proceeding, and Seller shall not designate counsel, appear in, or otherwise act with respect to any condemnation proceedings without Buyer's prior written consent. D. Broker's Commission. Seller and Buyer represent and warrant to each other that they have dealt with no brokers, finders or the like in connection with this transaction, and agree to indemnify each other and to hold each other harmless against all other claims, damages, costs or expenses of or for any fees or commissions resulting from their separate actions or agreements regarding the execution or performance of this Agreement, and will pay all costs of defending any action or lawsuit brought to recover any such fees or commissions incurred by the other party, including reasonable attorneys' fees. E. Assignment. Buyer may assign its rights under this Agreement without the prior written consent of Seller, but shall provide written notice of such assignment to Seller prior to Closing. F. Default. If either party shall default in any of their respective obligations under this Purchase Agreement, the other party, by notice to such defaulting party specifying the nature of the default and the date on which this Purchase Agreement shall terminate (which date shall not be less than thirty (30) days after the giving of such notice), may terminate this Purchase Agreement, and upon such date, unless the default so specified shall have been cured, this Purchase Agreement shall terminate. In the case of any default by the Buyer, Seller may terminate this Purchase Agreement as provided above, and upon such termination, the Earnest Money shall be forfeited to Seller as agreed and final liquidated damages. In the case of any default by Seller, upon termination of this Purchase Agreement, the Earnest Money, and all interest accrued thereon, shall be returned to Buyer, without prejudice to any other legal or equitable right or remedy of Buyer against Seller including, but not limited to specific performance and damages such damages not exceed $10,000. G. "AS IS" Purchase. Except as set forth in this Purchase Agreement or any document contemplated hereby, (i) the Property is being sold, conveyed, assigned, transferred and delivered "as is, where is" on the date hereof, and in its condition on the date hereof, "with all faults," and Seller is not making, and expressly disclaims, any other representation or warranties written or oral, statutory, express or implied, concerning the Property, including but 180018v6 10 not limited to, representations or warranties relating to value or quality of the Property or with respect to this Purchase Agreement or the transactions contemplated hereby or thereby, and (ii) Seller specifically disclaims any representation or warranty of merchantability, usage, suitability or fitness for any particular purpose with respect to the Property or any part thereof, or as to the workmanship thereof, or the absence of any defects therein, whether latent or patent. H. Survival. All of the terms of this Agreement will survive and be enforceable after the Closing. I. Effective Date. The "Effective Date" of this Agreement shall be the date of execution by the date upon which it is accepted and executed by the party to whom the offer is made. J. Counterparts. This Agreement may be executed in any number of counterparts or by facsimile, each of which will be deemed to be an original, but all of which, when taken together, constitute the same instrument. 20. TIME IS OF THE ESSENCE. Time is of the essence for all provisions of this Purchase Agreement. 21. MULTIPLE ORIGINALS. Seller and Buyer have signed two (2) originals of this Purchase Agreement. I agree to sell the Property for the price and terms and conditions set forth above. SELLER: CITY OF Denny Ladfenburgek, Mayor Gerhardt, City Manager Date: 180018v6 11 I agree to purchase the Property for the price and terms and conditions set forth above. 180018v6 12 Legal Description of Property Lot 2, Block 1, Gateway East 2"d Addition, Carver County, Minnesota, according to the recorded plat thereof. 180018v6 13