HomeMy WebLinkAbout16-158CITY OF LAKEVILLE
DAKOTA COUNTY, MINNESOTA
RESOLUTION 16-158
RESOLUTION APPROVING THE ACQUISITION OF REAL PROPERTY
AND DISPENSING WITH STATUTORY REQUIREMENTS FOR
REVIEW BY PLANNING COMMISSION OF DISPOSAL OF PROPERTY
WHEREAS, the City is proposing to acquire certain property ("Property') legally described
as:
That part of the North Half of Section 12, Township 114 North, Range 21 West, Dakota County,
Minnesota, described as follows:
Beginning at the center of said Section 12; thence on an assumed bearing South 89 degrees 11
minutes 17 seconds East, along the south line of the North Half of said Section 12, a distance of
117.29 feet; thence North 34 degrees 48 minutes 28 seconds East a distance of 311.76 feet to the
southwesterly right-of-way line of Minnesota State Highway No. 50; thence northwesterly, along
said southwesterly right-of-way line, on a non-tangential curve concave to the southwest, having a
radius of 1379.43 feet, a central angle of 5 degrees 37 minutes 27 seconds, a chord bearing of North
44 degrees 25 minutes 19 seconds West, a distance of 135.40 feet to the southeasterly right-of-way
line of Interstate Highway 35; thence southwesterly along said southeasterly right-of-way line on a
non-tangential curve, concave to the northwest, having a radius of 446.10 feet, a central angle of 0
degrees 59 minutes 37 seconds, a chord bearing of South 34 degrees 26 minutes 24 seconds West, a
distance of 7.74 feet; thence South 34 degrees 56 minutes 13 seconds West, tangent to the last
described curve and along said southeasterly right-of-way line of Interstate Highway 35, a distance
of 419.59 feet to the south line of said North Half of Section 12; thence South 89 degrees 11 minutes
17 seconds East along said south line, a distance of 44.16 feet to the point of beginning.
WHEREAS, Burger King Corporation and the City have negotiated terms for the
acquisition of the Property as provided in the proposed purchase agreement attached hereto as
Exhibit "A" ("Purchase Agreement");
WHEREAS, Minn. Stat. § 462.356, subd. 2 requires that the Planning Commission review
the City's proposed acquisitions and dispositions of property, and;
WHEREAS, Minn. Stat. § 462.356, subd. 2 provides for an exception from the Planning
Commission review requirement upon 2/3 vote of the City Council dispensing with the requirement
and finding that the acquisition or disposal of the property has no relationship to the
comprehensive municipal plan.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lakeville that:
1. The Purchase Agreement is hereby approved.
2. The acquisition of the Property under the Purchase Agreement has no relationship to
the comprehensive municipal plan.
3. Review by the Planning Commission of the acquisition of the Property is hereby
dispensed with, the proposed transaction is hereby approved, and the City Administrator is
authorized and directed to execute the Purchase Agreement and Addendums and all documents
necessary to complete the transaction.
ADOPTED this 21st day of November, 2016, by a 2/3 vote of the City Council of the City of
Lakeville
CITY OF LAKEVILLE
BY:
Matt Little, Mayor
ATTEST:
—4 1�&-
Charlene Friedges, City Cler
CONTRACT FOR SALE OF REAL ESTATE
THIS CONTRACT (the "Contract") is made this L day of , 2016, between
BURGER KING CORPORATION ("Seller"), a Florida corporation, w ose address is 5505 Blue
Lagoon Drive, P. O. Box 020783, Miami, Florida 33102-0783, and CITY OF LAKEVILLE
("Purchaser"), whose address is 20195 Holyoke Avenue, Lakeville, MN 55044.
1. Sale of Real Property. Seller agrees to sell and Purchaser agrees to buy that
certain parcel of real properly located at 17395 Kenwood Trail, Lakeville, MN together with the
building(s), and improvement(s) located thereon, if any, situated, lying and being in Dakota
County, State of Minnesota and more particularly described on Exhibit A attached hereto and made
a part hereof (the "Property"), commonly known to Seller as BK No. 4438.
2. Purchase Price. Purchaser agrees to purchase the Property for the sum of SEVEN
HUNDRED THOUSAND DOLLARS ($700,000.00) (the "Purchase Price"). The Purchase Price
is to be paid as follows:
2.1 Deposit. Concurrently with the execution of this Contract by Purchaser,
Purchaser has delivered to the Title Company (as hereinafter defined) as escrow agent a check in
the sum of FIFTEEN THOUSAND DOLLARS ($15,000.00), representing a deposit towards the
Purchase Price (the 'Deposit"). if the check does not represent immediately available funds by
the end of business the day which is five (5) business days after the Effective Date (defined below),
Seller shall have the right to terminate this Contract without recourse to Purchaser and both parties
shall be released from any further obligations hereunder. The Deposit shall be held by the Title
Company, and shall be considered as a portion of the Purchase Price.
2.2 Balance Payable. Purchaser shall pay the balance of the Purchase Price
(adjusted for prorations in accordance with this Contract) to Seller on the Closing Date (as
hereinafter defined) by Federal Reserve wire transfer in accordance with Seller's written
instructions.
3. Title to the ProRerty Seller represents title to the Property to be insurable and
agrees to convey title to the Property by Limited Warranty Deed (the "Deed"), subject to all taxes
not yet due and payable, all restrictions, conditions, reservations, limitations of record, and
easements of record and in place, current zoning, and any condition which a physical inspection
of the Property and an accurate and complete survey of the Property would disclose (collectively,
the "Permitted Exceptions").
4. Inspection Period.
4.1 Time Period; &ht to Terminate. Purchaser shall have the right, which
may be exercised at any time from and after the "Effective Date" (as herein defined), to that date
which is sixty (60) days after the Effective Date (the "Inspection Period"), to conduct such
investigations, at Purchaser's sole cost and expense, with respect to the Property as Purchaser
deems appropriate to evaluate the suitability of the Property for Purchaser's intended use
("Purchaser's Inspection"), including the right to survey and inspect the Property. Seller
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acknowledges that Purchaser and Purchaser's agents shall have access to the Property without
charge and at reasonable times for the purpose of Purchaser's Inspection, which may include, but
is not limited to environmental studies and appropriate soil borings; Rrovide that Purchaser shall
not bore or drill any holes in the soil or any improvement located on the Property without Seller's
prior written consent. Seller's failure to provide consent to soil borings shall be a basis by
Purchaser to terminate this Contract and to retain the Deposit, less one-half of any escrow fee.
Within ten (10) business days ofthe execution of this Contract, to the extent in Seller's possession,
Seller agrees to provide Purchaser with copies of any surveys of the Property.
4.2 No Warranties. Except as otherwise provide in Paragraph 8, Seller does
not warrant, either expressly or impliedly, the condition or fitness of the Property, including the
building(s), fixture(s) or improvement(s), if any, to be conveyed hereunder, or any use as to which
any of the foregoing may be put. Any such express or implied warranty is hereby expressly
disclaimed and negated. Purchaser further acknowledges that except as otherwise provided under
Paragraph 8: (i) neither Seller, nor any officer, director, shareholder, employee, agent, attorney,
broker or other representative of Seller, has made any representations or warranties of any kind
whatsoever, either express or implied, with respect to the Property; and (ii) Purchaser is not relying
on any representation, warranty or other statement or covenant, express or implied, of Seller or
any officer, director, shareholder, employee, agent, attorney, broker or other representative of
Seller, with respect to the Property or any component thereof, regarding: Seller's occupancy, use,
maintenance, ownership and operation thereof and the physical and structural condition and state
of repair thereof; the adequacy or fitness thereof for any contemplated use or purpose; the location
thereof and the ability to obtain access thereto; compliance with applicable local, municipal,
regional, state, federal or other statutes, laws, codes, ordinances, regulations, rules or requirements,
including, without limitation, any of same relating to leasing, zoning, subdivision, planning, land
use, building, fire, safety, health, environmental, hazardous waste, hazardous or toxic substances
or other injurious materials; the use or existence or prior use or existence of any hazardous waste,
hazardous or toxic substances or other injurious materials on, under or above the Property, or the
migration of such materials and substances to or from the Property.
4.3 AS IS. Purchaser acknowledges that it is acquiring the Property "AS IS"
without any, warranties or representations except as otherwise provided herein. Purchaser
represents that it is knowledgeable in real estate matters. The provisions of this Paragraph 4.3
shall survive closing or termination of this Contract.
4.4 Indemnification. Purchaser shall indemnify and hold Seller harmless from
and against any damage to the Property or any claims or liens against Seller and/or the Property
caused by or arising from Purchaser's Inspection, excepting, however, that Seller shall not be
indemnified, saved, defended or kept free and harmless from any loss or liability resulting from its
own negligence or the negligence of the Seller's contractors, employees or agents. The provisions
of this Paragraph 4.4 shall survive closing or termination of this Contract.
5. Condemnation or Casualty. If, prior to closing, any part of the Property is
condemned or appropriated by a public authority or any party exercising the right of eminent
domain and/or if the building(s), fixture(s) and/or improvement(s) on the Property, if any, shall be
destroyed, then this Contract, at the election of either Purchaser or Seller, may be terminated by
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written notice to the other party, and the Deposit paid by Purchaser shall be returned, less any
escrow fee, and neither party shall have any obligations to the other except as to those obligations
which specifically survive termination. Should the parties elect not to terminate this Contract, the
Purchase Price shall be reduced by the amount of any compensation received by Seller.
6. Title Examination. Purchaser shall within fifteen (15) days from the Effective
Date (the "Title Examination Period") obtain a commitment for an ALTA Owner's Form title
insurance policy (the "Commitment") issued by Dakota County Abstract and Title ("Title
Company") and examine title to the Property at Purchaser's sole cost and -expense. Purchaser shall
have fifteen (15) days after receipt of the Commitment to deliver to Seller written objections to
title based on marketability of the Property ("Objections"). Seller, upon receipt of written
notification of such defect, shall have the right, but not the obligation to: (i) satisfy, release or cure
same at any time prior to or concurrently with, the Closing; (ii) cause such defect to be removed
from Purchaser's title insurance commitment or affirmatively insured against by Purchaser's title.
insurance company; or (iii) if such defect is a liquidated claim or judgment, Seller may cause such
claim or judgment to be removed from the Property to a surety bond or other security, all at Seller's
sole option and expense. If Seller fails to or is unable to have such Objections removed prior to
Closing, Purchaser may, at its sole election, do any of the following: (i) accept title to the Property
in its existing condition without adjustment or abatement in the Purchase Price; or (ii) Purchaser
may terminate this Contract, whereupon both parties shall be released from further performance
hereunder, except as to those obligations which specifically survive termination, and the Deposit,
less any escrow fee, shall be returned to Purchaser. Purchaser shall not have the right to object to
title or to terminate this Contract by reason of any defect which is caused by Purchaser or any party
claiming by, through or under Purchaser.
7. Closing. Closing (the "Closing") shall take place within fifteen (15) days following
the expiration of the inspection Period specified in paragraph 4.1 hereof (such date, or any date to
which such date may be extended pursuant to other provisions of this Contract, is the '}Closing
Date"). The Closing shall take place at the offices of the Title Company and shall be through an
escrow. The parties agree to execute such escrow instructions as may be appropriate to enable the
Title Company to comply with the terms of this Contract. At Closing, Seller and Purchaser shall
disclose their Social Security Numbers or Federal Tax Identification Numbers for the purpose of
completing state and federal tax forms. Any closing or escrow fees charged by the Title Company
shall be divided equally between the parties and paid at Closing.
8. Seller's Representations and Warranties. Seller represents and warrants to
Purchaser as follows:
8.1 Authorizations. That Seller has the requisite power and authority to enter
into this Contract and the closing documents relating thereto to be signed by it; that the execution,
delivery and performance by Seller of such documents does not conflict with or result in violation
of any judgment, order or decree of any court to which Seller is a party; such documents are valid
and binding obligations of Seller.
8.2 Claims. At Closing, there will be no existing claims, actions, suits or other
proceedings pending, or to the actual knowledge of Seller, threatened by any governmental
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department or agency, or any other corporation, partnership or entity or person whomsoever
against Seller or the Property, which in any manner or to any extent may detrimentally affect the
Property or Purchaser's right, title or interest in and to any part or all of the Property after Closing.
8.3 Tenants. Other than Seller, there are no other tenants or occupants of the
Property.
8.4 Outstanding Agreements. On the date of Closing there will be no (i)
outstanding leases or occupancy agreements, or (ii) outstanding contracts made by Seller for any
improvements to the Property which have not been fully paid for or for which Seller shall not have
made arrangements to pay off at Closing, or that will affect the Property or be binding upon
Purchaser or upon the Property subsequent to Closing without Purchaser's written consent; and
Seller shall cause to be discharged all mechanic's or materialmen's liens arising from any labor or
materials furnished to the Property that were made at the request of Seller, its agents, or
contractors, prior to the Closing.
8.5 FIRPTA. Seller is not a foreign person; as such term is defined in Section
1445(f) (3) of the Internal Revenue Code of 1986, as amended, and shall deliver an affidavit to
that effect at closing, which shall be in form and substance sufficient to comply with the Internal
Revenue Code.
8.6 Wells. It is unknown to the Seller whether there are any wells on the
Property. In the event the Purchaser determines, as part of the Purchaser's Inspection of the
Property, that there is a well on the Property that must be sealed, then the Purchaser shall be
responsible for the cost of sealing the well.
8.7 Individual Sewage Treatment Systems. Solely for purposes of satisfying
the requirements of Minn. Stat. § l 15.55, Seller certifies that, to Seller's actual knowledge, there
is no "individual sewage treatment system" (within the meaning of that statute) on or serving the
Property, and that, to Seller's actual knowledge, sewage generated on the Property goes to a facility
permitted by the Minnesota Pollution Control Agency. In the event the Purchaser determines, as
part of the Purchaser's Inspection of the Property, that there is a subsurface sewage treatment
system on the Property and Purchaser does not elect to terminate the Contract prior to the
expiration of the Inspection Period, then the Purchaser shall be responsible for the costs relating
to bringing the system into compliance with the subsurface sewage treatment system rules.
9. Purchaser's Representations and Warranties. Purchaser represents and
warrants to Seller as follows:
9.1 Authorization. Purchaser has the full power and authority to execute,
deliver and perform the terms and conditions of this Contract and has taken all necessary action to
do so, that the execution, delivery and performance by Purchaser of such documents does not
conflict with or result in violation of any judgment, order or decree of any court to which Purchaser
is a party; such documents are valid and binding obligations of Purchaser.
9.2 No Violation. The consummation of the transactions contemplated by this
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Contract will not result in any violation of any contractual provision to which the Purchaser is a
party or otherwise is or may be bound.
9.3 Ability to Perform. Purchaser represents and warrants that Purchaser has
the financial ability to perform the terms and conditions of this Contract and, specifically, to pay
the Purchase Price, subject to the proration herein described, on the date of Closing.
10. Closing Costs, Proration's and Credits.
10.1 Transfer Taxes; Title Insurance and Closing Fees. All municipal,
county, state and federal transfer taxes, including documentary stamps (if .any) and surtaxes (if
any) on the Deed shall be paid by Seller. The cost of recording the Deed, shall be paid by Purchaser
at the time of closing. Purchaser shall pay the cost of abstracting and the title insurance cost and
risk premium for the owner's title insurance policy as described in Paragraph 6 of this Contract.
Seller shall pay for the cost of recording any curative title instruments that Seller has agreed to
provide pursuant to Paragraph 6 of this Contract.
10.2 Property Taxes and Assessments. Real estate and personal property taxes
for the current year shall be prorated as of midnight preceding the Closing Date. Real estate and
property taxes shall be prorated based on amounts for the current year, unless, for any reason, the
amounts for the current year are unknown, in which event real estate and personal property taxes
shall be prorated based on tax amounts for the prior year, with maximum early payment discount
taken.
Seller shall pay current installments of all certified assessments as of midnight
preceding the Closing Date. Purchaser shall assume installments of all certified assessments as of
and subsequent to the Closing Date. Purchaser shall assume all pending assessments which
represent work which is actually in progress or completed on the Closing Date, but which have not
yet been certified as an assessment. Purchaser will assume all pending assessments representing
improvements which have not as yet commenced at Closing.
10.3 Municipal Services. All waste and garbage charges, if any, and all other
similar charges shall be prorated as of midnight preceding the Closing Date. Meters for water,
sewer, electric and other utility services will be read on the day preceding the Closing Date.
11. Seller's Obligations at Closing. On or prior to the date of Closing, Seller shall:
11.1 Execute, acknowledge and deliver to Purchaser, via delivery in escrow to
the Title Company, the Deed to the Property conveying to Purchaser fee simple title to the Property
subject only to the Permitted Exceptions.
11.2 Execute and/or deliver to Purchaser, via delivery in escrow to the Title
Company, such other documents as may be required by this Contract or as may be reasonably
required by Title Company, including well disclosures and sewage treatment system disclosures,
if applicable.
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11.3 Deliver to Purchaser, via delivery in escrow to the Title Company, a
standard form affidavit by the 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.
11.4 Deliver to Purchaser, via delivery in escrow to the Title Company, a "bring -
down" certificate, certifying that all of the representations made by Seller in this Contract remain
true as of the date of Closing, subject to exceptions or events occurring subsequent to this Contract
that are acceptable to Purchaser.
12. Purchaser's Obligations at Closing. At Closing and subject to the terms,
conditions, and provisions hereof and the performance by Seller of its obligations as set forth
above, Purchaser shall:
12.1 Deliver to Seller, via delivery in escrow to the Title Company, by wire
transfer the Purchase Price, less any adjustments.
12.2 Execute and/or deliver to Seiler, via delivery in escrow to the Title
Company, such other documents as may be required by this Contract or as may be reasonably
required by Title Company.
13. Default. In the event either party defaults under the terms and conditions of this
Contract, whereby the other has a right of termination, the party not in default shall provide the
defaulting party with written notice of the grounds for declaring default. The defaulting party shall
have five (S) days after receipt of notice of default to cure the default. If the default has not been
cured within the prescribed period of time, the party not in default may terminate this Contract. In
the event this Contract is terminated as aforesaid and if Seller is the defaulting party, the parties
have agreed that Purchaser shall be entitled, as Purchaser's sole and exclusive remedy, to the return
of its Deposit. In no event shall Purchaser have a right to recover damages for Seller's breach of
its obligations hereunder. In the event Purchaser is the defaulting party, the parties have agreed
that the Deposit may be retained by Seiler as agreed upon liquidated damages, which shall be
Seller's sole remedy for Purchaser's default, and thereafter neither Purchaser nor Seller shall have
any further obligation or liability hereunder or in connection herewith. This provision for
liquidated and agreed upon damages contained herein is a bona fide provision as such and it is not
a penalty, the parties understanding that by reason of Seller binding itself to the sale of the
Property, and withdrawing it from the market, that Seller will have sustained a damage if Purchaser
defaults, which will be substantial but which will be difficult, if not incapable of determination
with mathematical precision, and therefore, as aforesaid, the provision for liquidated and agreed
upon damages has been incorporated in this Contract as a bona fide provision beneficial to both
parties. Neither parry shall have the right to specific performance.
14. No�hWes.
14.1 All notices or other communications required or permitted under this
Contract must be given in writing, as follows: (i) by actual delivery of the notice into the hands of
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the party specified hereunder, in which case such notice will be deemed given on the date of
delivery or the date delivery is rejected by the recipient; (ii) by Federal Express, UPS, DHL, or
any similar overnight carrier, in which case such notice will be deemed given on the date of
delivery or the date delivery is rejected by the recipient; or (iii) by registered or certified mail,
return receipt requested, in a postage prepaid envelope, in which case such notice shall be deemed
given upon receipt.
14.2 All notices concerning this Contract must be addressed as follows, or in
each case to such other address as either parry may from time to time designate by giving written
notice thereof to the other party:
Seller: BURGER KING CORPORATION
5505 Blue Lagoon Drive
Miami, Florida 33126
Attention: General Counsel - Real Estate Law
Department
c/o Jeff Grill, Esq.
with a copy to: P.O. Box 020783
General Mail Facility
Miami, Florida 33102-0783
Attention: General Counsel - Real Estate Law
Department
Purchaser: CITY OF LAKEVILLE
20195 Holyoke Avenue
Lakeville, Minnesota 55044
c/o City Administrator
with a copy to: Andrea McDowell Poehler
Campbell Knutson, Professional Association
Grand Oak Office Center I
860 Blue Gentian Road, Suite 290
Eagan, Minnesota 55121
15. Possession. Possession of the Property shall be delivered to Purchaser at the time
Seller receives the Purchase Price (adjusted for prorations in accordance with this Contract) in
immediately available funds.
16. tisk of Loss. Risk of loss to the building(s), fixture(s) and improvement(s), if any,
located upon the Property shall remain with Seller prior to Closing.
17. Waiver; Prior Aareements; Successors and Assiens. No term or condition of
this Contract will be deemed to have been waived or amended unless expressed in writing and the
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waiver of any such condition or the breach of any term will not be a waiver of any subsequent
breach of the same or other term or condition. This Contract constitutes the entire agreement
between the parties, which incorporates all prior written and/or oral understandings. This Contract
shall be binding upon the parties, their heirs, successor or assigns.
18. Purchaser's Contingencies. The obligation of Purchaser to close under this
Contract is expressly contingent upon the following.
18.1 Purchaser shall be satisfied with the results of any Purchaser Inspection
conducted by Purchaser on the Property prior to the termination of the Inspection Period, provided
this contingency shall be deemed waived unless Purchaser shall have given written notice to Seller
no later than the last day of the Inspection Period that Purchaser has elected to terminate the
Contract pursuant to this contingency.
18.2 Purchaser obtaining proceeds from the Metropolitan Council Right -of -Way
Acquisition Loan Fund to fund the Purchase Price, in addition to attorney fees and administrative
expenses incurred by Purchaser on or before the expiration of the Inspection Period, which serves
to secure Purchaser's funding of the purchase described herein, provided this contingency shall be
deemed waived unless Purchaser shall have given written notice to Seller no later than the last day
of the Inspection Period that Purchaser has elected to terminate the Contract pursuant to this
contingency.
If the contingencies set forth herein have not been satisfied or waived by Purchaser by the
expiration of the Inspection Period, then Purchaser shall have the right to terminate this Contract
by giving written notice to Seller no later than the last day of the Inspection Period. The
contingencies set forth in this paragraph are for the sole and exclusive benefit of Purchaser, and
Purchaser shall have the right to waive the contingencies by giving notice to Seller, provided
Purchaser abides by the time requirements set forth above. Upon receipt by Seller of such notice
and accompanying documentation in accordance with the foregoing prior to the expiration of the
Inspection Period, this Contract shall terminate, except as to those provisions which specifically
survive termination, the Deposit, less one-half (1/2) of any escrow fee, shall be returned to
Purchaser, and the parties shall be released from any further obligations hereunder, except as to
those obligations which expressly survive termination of this Contract. In the event such notice
of termination is not timely given by the expiration of the Inspection Period, the foregoing
contingencies shall be deemed waived and satisfied in full.
19. Assiznment. This Contract shall not be assigned by Purchaser without the express
written consent of Seller first had and obtained.
20. Brokers. Each party represents and warrants to the other that there are no
brokers involved in this transaction. Seller shall indemnify, defend and hold Purchaser harmless
from any claims for fees or commissions made upon Purchaser by any broker representing Seller
if other than the broker disclosed herein. Purchaser shall indemnify, defend and hold Seller
harmless from any claims for fees and/or commissions made upon Seller by any broker
representing Purchaser if other than the broker disclosed herein. The provisions of this Paragraph
20 shall survive Closing or termination of this Contract -
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21. Relationship of Parties. Nothing contained in this Contract or in the activities
contemplated hereby shall be construed to create the relationship of principal and agent,
partnership, joint venture, trust, tenants in common or any other relationship between the parties
hereto, other than separate and distinct entities dealing at arm's length as Seller and Purchaser,
respectively, for their own separate interests and benefit.
22. Like -Kind Exchanges. In connection with this transaction, the parties agree to
cooperate in effecting IRC 1031 tax free exchanges (by Seller or Purchaser, or both) provided that
there is no assumption of additional liability and no delay in the Closing of this transaction. Such
cooperation may include the execution of an assignment of this Contract to an exchange facilitator
and any other documents reasonably requested.
23. Headings. All descriptive headings of sections and paragraphs in this Contract are
inserted for convenience only and shall not affect the construction or interpretation hereof.
24. Time is of the Essence. Time is of the essence of each provision hereof. Failure
of either party to close the transaction on the date of Closing, without default on the part of the
other, shall be considered a default in this Contract.
25. Effectiveness of Agreement. This Contract shall be made and effective as of the
date that the last of Purchaser and Seller to execute this Contract shall have done so ("Effective
Date").
26. Attorneys' Fees. The prevailing party in a suit to enforce the terms of this Contract
shall be entitled to reimbursement from the losing party of all costs associated with such suit,
including without limitation, reasonable attorneys' fees and paralegal fees through appellate
proceedings.
27. Survival. Except as expressly set forth herein, no warranties, representations,
covenants, obligations or other agreements contained in this Contract shall survive the Closing.
28. Construction. Should any provision of this Contract require judicial interpretation,
it is agreed that the Court interpreting or construing the same shall not construe this Contract
against one party more strictly by reason of any rule of interpretation which relates to the source
of preparation of a document, it being agreed that the agents of all parties have participated in the
preparation of this Contract and that legal counsel was consulted by each party prior to its
execution hereof.
29. Exclusivity of Agreement. This Contract is made for the sole protection of
Purchaser and Seller, and no other person shall have any benefit or right of action hereunder.
30. No Recording. Purchaser shall not record this Contract in the Public Records, and
upon any such recording, Purchaser's rights and interests hereunder (including any right Purchaser
may have to the return of the Deposit) shall automatically terminate, without further notice to or
action of any party.
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31 . Internal Revenue Code. Purchaser and Seller agree to cooperate with each other
to insure compliance with the provisions of the Internal Revenue Code, as amended, regarding the
filing of an information return and providing of a statement to the Seller with respect to the
transactions contemplated by this Contract.
32. Governing Law/Jurisdiction. This Contract shall be governed by and construed
in accordance with the laws of the State of Minnesota. The parties hereto acknowledge and agree
that the United States District Court for the District of Minnesota, or if such court lacks jurisdiction,
the district court in and for Dakota County, shall be the exclusive venue and proper forum in which
to adjudicate any case or controversy arising, either directly or indirectly, under or in connection
with this Contract or related documentation and any other agreement between the parties, and the
parties further agree that in the event of litigation arising out of or in connection with this Contract
or related documentation or any other agreement between the parties in these courts, they will not
contest or challenge the jurisdiction or venue of these courts.
33. Time Periods. If any time period prescribed in the Contract ends on a Saturday,
Sunday or legal holiday, such time period shall be extended to 5:00 p.m. E.S.T. of the next full
day upon which national banks are open in the State of Florida.
34. Representations, Warranties and Covenants with respect to the USA Patriot
Act. Purchaser and Seller hereby represent and warrant, each to the other, that neither of them,
nor to their knowledge, any of their respective officers, directors, shareholders, partners, members
or associates, and no other direct or indirect holder of any equity interest in Purchaser or Seller, is
an entity or person: (i) that is listed in the Annex to, or is otherwise subject to, the provisions of
United States Presidential Executive Order 13224 issued on September 24, 2001 (the "Executive
Order"); (ii) whose name appears on the U.S. Department of the Treasury, Office of Foreign Assets
Control's ("OFAC") most current list of "Specifically Designated National and Blocked Persons"
(which list may be published from time to time in various mediums including, but not limited to,
the OFAC website, www.treas.gov/ofac); (iii) who commits, threatens to commit or supports
"terrorism" (as such term is defined in the Executive Order); or (iv) who is otherwise affiliated
with any entity or person listed above.
35. Counterparts. This Contract may be executed in one or more counterparts, each
of which shall constitute an original, but all of which taken together shall constitute one and the
same document. Facsimile and/or electronic counterpart copies of this Contract shall be
considered for all purposes, including delivery, as originals.
(SIGNATURES ARE ON THE FOLLOWING PAGE)
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IN WITNESS WHEREOF, Seller has executed this Contract the
, 2016.
day of
BURGER KING CORPORATION,
a
IN YVITNESS WHEREOF, Purchaser has executed this Contract the day of
2016.
CITY OF LAKEVILLE
By:
M Little, Mayor
By:
Charlene Frideges, City
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That part of the North Half of Section 12, Township 114 North, Range 21 West, Dakota County,
Minnesota, described as follows: Beginning at the center of said Section 12; thence on an assumed
bearing South 89 degrees 11 minutes 17 seconds East, along the south line of the North Half of
said Section 12, a distance of 117.29 feet; thence North 34 degrees 48 minutes 28 seconds East a
distance of 311.76 feet to the southwesterly right-of-way line of Minnesota State Highway No. 50;
thence northwesterly, along said southwesterly right-of-way line, on a non-tangential curve
concave to the southwest, having a radius of 1379.43 feet, a central angle of 5 degrees 37 minutes
27 seconds, a chord bearing ofNorth 44 degrees 25 minutes 19 seconds West, a distance of 135.40
feet to the southeasterly right-of-way line of Interstate Highway 35; thence southwesterly along
said southeasterly right-of-way line on a non-tangential curve, concave to the northwest, having
a radius of 446.10 feet, a central angle of 0 degrees 59 minutes 37 seconds, a chord bearing of
South 34 degrees 26 minutes 24 seconds West, a distance of 7.74 feet; thence South 34 degrees 56
minutes 13 seconds West, tangent to the last described curve and along said southeasterly right-
of-way line of Interstate Highway 35, a distance of 419.59 feet to the south line of said North Half
of Section 12; thence South 89 degrees 11 minutes 17 seconds East along said south line, a distance
of 44.16 feet to the point of beginning.
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