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HomeMy WebLinkAbout17-033CITY OF LAKEVILLE DAKOTA COUNTY, MINNESOTA RESOLUTION NO. 17-33 RESOLUTION APPROVING THE A QUISITION AND CONVEYANCE OF REAL PROPERTY AND DISPENSING WITH STATUTORY REQUIREMENTS FOR REVIEW BY PLANNING COMMISSION OF DISPOSAL OF PROPERTY WHEREAS, the City is proposing to acc legally described in the land exchange agreemen proposed purchase agreement between Antho ("McDonalds") and the City of Lakeville ("Land connection with the Kenwood Trail Business Pat WHEREAS, Minn. Stat. § 462.356, review the City's proposed acquisitions and di; WHEREAS, Minn. Stat. § 462.356, su Commission review requirement upon 2/3 requirement and finding that the acquisition or comprehensive municipal plan. NOW, THEREFORE, BE IT Lakeville: 1. The City Council finds that the Land Exchange Agreement has no rely approves the Land Exchange Agreement; 2. Review by the Planning C Properties is hereby dispensed with; and .ire and convey certain properties ("Properties") attached as Exhibit "A," under the terms of the y M. McDonald and Patricia R. McDonald ixchange Agreement") to obtain right of way in plat and for property redevelopment purposes; ►d. 2 requires that the Planning Commission itions of property, and; 3 2 provides for an exception from the Planning e of the City Council dispensing with the i posal of the property has no relationship to the VED by the City Council of the City of m and disposition of the Properties under the to the comprehensive municipal plan and of the acquisition and conveyance of the 3. The Mayor, City Administrator, and C ty Clerk are authorized and directed to execute all documents, and take all appropriate measures to acquire and convey the Properties under the terms of the Land Exchange Agreement. 1 1915241 ADOPTED this 6th day of March, 2017, by a 2/3 vote of the City Council of the City of Lakeville CITY OF LAKEVILLE C'Anderson, AT/fEST:: zzldlt�- k 1 e Charlene Friedges, City k 2 191524vl LAND EXCHANGE AGREEMENT This Land Exchange Agreement (the "Agreement") is made this �1% day of �� , 20Z1 by and between the CITY OF LAKEVILLE, a Minnesota municipal corporation ("City") and ANTHONY M. MCDONALD and PATRICIA R. MCDONALD, husband and wife ("McDonald"). RECITALS A. McDonald is the fee owner of the real property located at 20094 Kenwood Trail, Lakeville, MN 55044 and legally described in Exhibit A attached hereto ("McDonald Property"). B. The City desires to acquire the McDonald Property for right of way purposes; C. McDonald agrees to convey the McDonald Property to the City in exchange for the property legally described in Exhibit B attached hereto ("Exchange Property"); D. McDonald is entitled to additional relocation and moving expenses pursuant to the Uniform Relocation Assistance and Land Acquisition Policies Act. E. The City intends to plat the McDonald Property and Exchange Property together with other property owned by the City as Kenwood Business Trail Park ("Plat"); F. The City intends to administratively subdivide a portion of the McDonald Property to be platted as Outlot F into two parcels legally described in Exhibit C attached hereto ("Parcels 1 and 2"), which are collectively referred to herein as "Parcels" and individually as "Parcel"; G. The City agrees to convey Parcel 2 to McDonald at an initial closing which will later be reconveyed by McDonald to the City following demolition of the structure located on Parcel 2; H. The McDonald Property and Exchange Property are collectively referred to hereunder as "Properties." NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. SALE AND PURCHASE OF PROPERTIES. In consideration of the agreements herein contained, McDonald agrees that it will convey to the City the McDonald Property and the City agrees that it will convey the Exchange Property to McDonald in accordance with the terms of this Agreement. In addition, the City will convey Parcel 2 to McDonald on the Initial Closing Date and McDonald will reconvey Parcel 2 to the City on the Second Closing Date in accordance with the terms of this Agreement. 2. PURCHASE PRICE. The parties agree that in addition to the conveyance of the 191172v10 Exchange Property, the City will pay McDonald Three Hundred Ninety -Four Thousand Three Hundred and no/100 ($394,300.00) Dollars' for the McDonald Property, subject to pro rations and adjustments set forth in this Agreement, in cash or by wire transfer of immediately available funds as follows A. At the Initial Closing (as hereinafter defined), the City shall pay McDonald Three Hundred Fifty Thousand Forty -Five and no/100 Dollars ($350,045.00) for the conveyance of the McDonald Property; the remainder of the Purchase Price ($44,255.00) shall be held by the Title Company (as hereinafter defined) in escrow ("Escrowed Payment") for the Second Closing (as hereinafter defined). B. At the Second Closing, the City will authorize the release to McDonald of the Escrowed Payment for the conveyance of Parcel 2. If the Second Closing does not occur prior to September 15, 2017, the Escrowed Payment shall be returned to the City, unless this time period is otherwise extended by approval of the City, which extension will not be unreasonably denied, provided reasonable efforts and progress on the Structure Demolition (as further defined herein) have been made by McDonald. 3. ENVIRONMENTAL ASSESSMENT. As soon as possible after the execution hereof, the City and McDonald shall have the right, if they desire, at their own expense to inspect the respective properties of the other party being exchanged or conveyed for the purpose of determining whether or not there are any environmental conditions that affect the parcel to be acquired. If the environmental inspection reveals any environmental conditions that are unsatisfactory to the respective party, said party may elect either of the following options: (a) Terminate this Agreement as provided by statute; or (b) Proceed with the terms of this Agreement by waiving the contingency relating to the environmental condition. 4. PHYSICAL INSPECTION. The City and McDonald shall each have the right from time to time prior to the Closings (as hereafter defined), to enter upon the respective property being exchanged or conveyed, to examine the same and the condition thereof and to conduct such surveys and to make such engineering and other inspections, tests and studies as they determine to be reasonably necessary for their use of the property. All physical inspections shall be at the sole cost and expense of the party making the same. The City and McDonald will conduct all examinations and surveys of the respective properties in a manner that will not harm or damage the respective properties so that it cannot be restored to its prior condition or cause any claim adverse to either party, and will restore the respective properties to the condition they were in prior to any such examination, immediately after conducting said examination. McDonald and the City shall indemnify, defend, and hold harmless each other from any and all claims for injury or death to persons, damage to property or other losses or damages or claims, including, in each instance, reasonable attorneys' fees and litigation costs, arising out of the action of any person or firm entering upon the respective properties, which indemnity will 1 The purchase price for the McDonald Property is $800,000.00; the purchase price for the Exchange Property is $405,700.00 thereby requiring a net payment by the City to McDonald of $394,300.00. 2 191172v10 survive the Closings and the termination of this Agreement for a period of one year. 5. TITLE EXAMINATION. Title Examination will be conducted as follows: (a) Title Evidence. The City and McDonald will, as soon as possible after the date of this Agreement, furnish the following (collectively, "Title Evidence") to the other party for the property being transferred by them under this Agreement: (i) Title Commitment. A Commitment for Title Insurance issued by DCA Title (the "Title Company" or "Title") for the Properties including proper searches covering bankruptcies and state and federal judgments, federal court judgment liens in favor of the U.S., liens, and levied and pending special assessments ("Title Commitment" or "Commitment"). The City shall be responsible for the cost of the Commitment. (ii) Title Objections. The City and McDonald shall have ten (10) business days after receipt of the Title Commitment from the other party to provide the other party with a copy of the Commitment and written objections. The City and McDonald shall be deemed to have waived any title objections not made within the 10 -day period above, except that this shall not operate as a waiver of either party's covenant to deliver a limited warranty deed under this Agreement. (iii) Title Corrections and Title Remedies. The City and McDonald shall have ten (10) days from receipt of written title objections by the other party to make title marketable for their respective property. Upon receipt of title objections, each party shall, within ten (10) business days, notify the other of their intention to make title marketable within the 10 -day period. Liens or encumbrances for liquidated amounts that can be released by payment or escrow from proceeds of closing shall not delay the closing. Cure of the defects by either party shall be reasonable, diligent and prompt. Pending correction of title, all payments required herein and the Closing shall be postponed. (iv) Updated Title Commitment. Within 15 business days prior to the Second Closing, the City may update title to Parcel 2 and title objections, corrections and remedies shall be addressed pursuant to the provisions of this Paragraph 5. The Second Closing may be extended to address these time frames, except as otherwise provided in this Agreement. (b) If notice is given and either party makes title marketable, then upon presentation to the other party of documentation establishing that title has been made marketable, and if not objected to in the same time and manner as the original title objections, the Closing shall take place within ten (10) business days or on the scheduled respective Closing Date for each transaction, whichever is later. (c) If notice is given and either party proceeds in good faith to make title marketable but the 10 day period expires without title being made marketable, the other party may 3 191172v10 declare this Agreement void by notice, and neither party shall be liable for damages hereunder to the other. (d) If either party does not give notice of intention to make title marketable, or if notice is given but the 10 day period expires without title being made marketable due to the other party's failure to proceed in good faith, the exclusive remedy is rescission of this Agreement by notice as provided herein. (e) If title is marketable, or is made marketable as provided herein, and either party defaults in any of the agreements herein, the other party's exclusive remedy is to cancel this Agreement as provided by statute and retain all payments made hereunder as liquidated damages. 6. CLOSING. (a) Unless terminated earlier or extended as provided herein, the date for closing the sale and purchase of the McDonald Property, Exchange Property, and Parcel 2 (the "Initial Closing") shall be on a date mutually agreed to by the parties but not later than March 20, 2017 (the "Initial Closing Date"). Each transaction occurring on the Initial Closing Date is contingent upon the successful closing of the other transaction and recording of the Plat. It is intended that documents will be recorded in the following order: i. McDonald Property conveyance; ii. Plat; iii. Recording of Administrative Lot Split of Outlot F, Kenwood Trail Business Park for Parcels 1 and 2; iv. Exchange Property conveyance; V. Parcel 2 conveyance. (b) Unless terminated earlier or extended as provided herein, the date for closing the sale and purchase of Parcel 2 (the "Second Closing") shall be on a date mutually agreed to by the parties but not later than September 15, 2017 (the "Second Closing Date"). The Second Closing is contingent upon the successful completion of the Initial Closing. Collectively the Initial Closing and Second Closing are referred to as the "Closings." (c) The Closings shall take place at the offices of the Title Company, or such other location as mutually agreed upon by the parties and may be completed through escrow of closing documents and funds with the Title Company. 7. MCDONALD'S CLOSING OBLIGATIONS. On the respective Closing Date for each transaction, McDonald shall execute and deliver to City: (a) The duly executed limited warranty deed to the respective McDonald Property ("Initial Closing") and Parcel 2 ("Second Closing") conveying title to the City free and clear of all liens and encumbrances except the following items (allowable encumbrances): 4 19117200 (i) Building and zoning laws, ordinances, state and federal statutes or other governmental regulations; (ii) Real estate taxes for which the City is responsible; (iii) The Kenwood Trail Business Park plat (Parcel 2 conveyance) (iv) Those items approved by the City pursuant to Paragraph 5 of this Agreement; and (v) Reservation of any minerals or mineral rights in the State of Minnesota. (b) A customary affidavit that there are no unsatisfied judgments of record, no actions pending in any state or federal courts, no tax liens, and no bankruptcy proceeding filed against McDonald, and no labor or materials have been furnished to the respective McDonald Property or Parcel 2 for which payment has not been made, and that to the best of McDonald's knowledge there are no unrecorded interests relating to the McDonald Property or Parcel 2. (c) Such other documents required under Paragraph 13. (d) Such other documents as may be reasonably required by the Title Company. 8. CITY'S CLOSING OBLIGATIONS. On the respective Closing Date for each transaction, the City shall execute and deliver to McDonald: (a) The Purchase Price as required by Paragraph 2 or authorization to release the Escrowed Payment in accordance with the terms of this Agreement; (b) On the Initial Closing Date a relocation reimbursement — the sum of $50,000.00 as a business reestablishment payable to "Robert W. Anderson, O.D. and Anthony M. McDonald O.D. Ltd. d/b/a McDonald Eye Care Associates;" (c) On the Initial Closing Date, a Business Reestablishment payment — the sum of $2,500.00 representing search expenses payable to "Anthony M. McDonald and Patricia R. McDonald;" (d) On the Initial Closing Date, the duly executed limited warranty deed to the Exchange Property conveying title to McDonald free and clear of all liens and encumbrances except the following items (allowable encumbrances): (i) Building and zoning laws, ordinances, state and federal statutes or other governmental regulations; (ii) Real estate taxes for which McDonald is responsible; 5 191172v10 (iii) The Kenwood Trail Business Park plat; (iv) Those items approved by McDonald pursuant to Paragraph 5 of this Agreement; and (v) Reservation of any minerals or mineral rights in the State of Minnesota. (e) On the Initial Closing Date the duly executed quit claim deed to Parcel 2 conveying title to McDonald; (f) A customary affidavit that there are no unsatisfied judgments of record, no actions pending in any state or federal courts, no tax liens, and no bankruptcy proceeding filed against City, and no labor or materials have been furnished to the Exchange Property or Parcel 2 for which payment has not been made, and that to the best of City's knowledge there are no unrecorded interests relating to the Exchange Property or Parcel 2. (g) Such other documents required under Paragraph 13 of this Agreement. (h) Such other documents as may be reasonably required by the Title Company. (i) Reimbursement of McDonald's cost of the Structure Demolition, as hereinafter defined, in accordance with the demolition contract and cost approved by the City. 9. PRORATIONS. The City and McDonald agree to the following prorations and allocation of costs regarding this Agreement: (a) Title Commitment. The City will be responsible for the costs associated with providing a title commitment for the McDonald Property and the Exchange Property. If a party desires a title policy for the parcel the party is acquiring, that cost shall be assigned to the party acquiring the property. (b) Deed Tax. The City shall be responsible for payment of any deed tax. (c) Real Estate Taxes and Special Assessments. (i) McDonald Property. General real estate taxes payable in the years prior to the year of closing and installments of special assessments will be paid by McDonald. General real estate taxes payable in the year of closing, if any, shall be prorated by McDonald and the City as of the respective Closing Date on a per diem basis based upon a calendar year. The City shall pay on or before the Closing Date all pending special assessments that are due prior to the Closing. McDonald shall pay at the respective Closing for each Parcel any deferred real estate taxes or special assessments payment of which is required as a result of the closing of this Agreement. The City shall pay real estate taxes due and payable in the year following closing and thereafter. 6 191172v10 (ii) Exchange Property. General real estate taxes payable in the years prior to the year of closing and installments of special assessments will be paid by the City. General real estate taxes payable in the year of closing, if any, shall be prorated by the City and McDonald as of the Initial Closing Date on a per diem basis based upon a calendar year. The City shall pay on or before the Initial Closing Date all pending special assessments that are due prior to the Initial Closing. The City shall pay at the Initial Closing any deferred real estate taxes or special assessments payment of which is required as a result of the closing of this Agreement. McDonald shall pay real estate taxes due and payable in the year following closing and thereafter. (d) Recording Costs. The City will pay the cost of recording all documents necessary to place record title to the property the party is conveying in the condition warranted by the parties in this Agreement. The City will pay the cost of recording any deed. (e) Fees by Title Company. The City will be responsible for any and all fees charges by the Title Company for the Closings. 10. CITY'S REPRESENTATIONS. On information and belief, the City hereby represents to McDonald, as of the date of this Agreement and as of the Closing Dates, as follows: (a) The consummation of the transactions contemplated by this Agreement will not constitute a default or result in the breach of any term or provision of any contract or agreement to which the City is a party so as to adversely affect the consummation of such transactions. (b) The execution, delivery and performance of this Agreement by the City has been authorized and approved by the City, and the person executing this Agreement on behalf of the City has full authority to bind the City to the terms hereof. (c) On the Initial Closing Date there will be no (i) outstanding leases or occupancy agreements, or (ii) outstanding contracts made by City for any improvements to the Exchange Property which have not been fully paid for or for which City shall not have made arrangements to pay off, at Closing, or that will affect the Exchange Property or be binding upon McDonald or upon the Exchange Property subsequent to Closing without McDonald's written consent; and the City shall cause to be discharged all mechanic's or materialmen's liens arising from any labor or materials furnished to the Exchange Property that were made at the request of the City, its agents, or contractors, prior to the Closing Date and any mortgages or other such similar encumbrances. (d) The City 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 reasonably acceptable to McDonald. (e) The City certifies that the City does not know of any "Wells" on the described Exchange Property within the meaning of Minn. Stat. Chapter 103I, except as disclosed 7 191172v10 herein. This representation is intended to satisfy the requirements of that statute. (f) To the best of the City's knowledge, no toxic or hazardous substances or wastes, pollutants or contaminants (as defined in applicable federal or state laws or local ordinances) have been generated, treated, stored, released or disposed of, or otherwise placed, deposited in or located on the Exchange Property, nor has any activity been undertaken on the Exchange Property that would cause or contribute to (i) the Exchange Property to become a treatment, storage or disposal facility as defined in any federal or state law or local ordinance, (ii) a release or threatened release of toxic or hazardous substances or wastes, pollutants or contaminants, from the Exchange Property as prohibited by any federal or state law or local ordinance, or (iii) the discharge of pollutants or effluents into any water source or system, the dredging or filling of any waters or the discharge into the air of any emissions, that would require a permit under any federal or state law or local ordinance. To the best of the City's knowledge, there are no toxic or hazardous substances or wastes, pollutants or contaminants or other environmental conditions in or on the Exchange Property that may support a claim or cause of action under federal or state law or local ordinances or other environmental regulatory requirements. To the best of the City's knowledge, no part of the Exchange Property is a "Wetland", as defined by law. The City will disclose to McDonald all environmental reports and studies with respect to the Exchange Property which are in the City's possession or control. (g) To the best of the City's knowledge, there are no above ground or underground tanks in or about the Exchange Property. To the extent such storage tanks exist, each will be duly registered with all appropriate regulatory and governmental bodies and will be removed or brought into compliance with applicable federal, state and local statutes, regulations, ordinances and other regulatory requirements at the City's expense. (h) Solely for purposes of satisfying the requirements of Minn. Stat. § 115.55, the City certifies that, to the City's knowledge, there is no "individual sewage treatment system" (within the meaning of that statute) on or serving the Exchange Property. The City certifies that sewage generated on the Exchange Property goes to a facility permitted by the Minnesota Pollution Control Agency. (i) The City shall be responsible for processing the Plat and the administrative subdivision of Outlot F, Kenwood Trail Business Park for Parcels 1 and 2 and for the costs as provided in this Agreement. 0) The City will reimburse McDonald for the cost of the demolition further identified under Paragraph 11(g) provided the demolition is consistent with the representations provided under Paragraph 11(g). The City will reimburse on a "cost incurred" basis. McDonald must provide the City with its written payment requests and documentation that shows the demolition activities have actually been completed consistent with the demolition contract and this Agreement. Subject to verification of a reimbursement request (and appropriate documentation), the City will reimburse within thirty-five (35) days. 8 191172v10 Except as herein expressly stated, McDonald is purchasing the Exchange Property based upon its own investigation and inquiry and is not relying on any representation of the City or other person and is agreeing to accept and purchase the Exchange Property "as is, where is" subject to the conditions of examination herein set forth and the express warranties herein contained. The representations set forth in this section shall be continuing and shall be true and correct as of the Initial Closing Date with the same force and effect as if made at that time and shall survive the Initial Closing Date for a period of two (2) years. 11. MCDONALD'S REPRESENTATIONS. On information and belief, McDonald hereby represents to the City, as of the date of this Agreement and as of each respective Closing Date, as follows: (a) The consummation of the transactions contemplated by this Agreement will not constitute a default or result in the breach of any term or provision of any contract or agreement to which McDonald are a party so as to adversely affect the consummation of such transactions. (b) On the respective Closing Date for each transaction there will be no (i) outstanding leases or occupancy agreements, or (ii) outstanding contracts made by McDonald for any improvements to the McDonald Property or Parcel 2 which have not been fully paid for or for which McDonald shall not have made arrangements to pay off, at the respective Closing, or that will affect the McDonald Property or Parcel 2 or be binding upon the City or upon the McDonald Property or Parcel 2 subsequent to the respective Closing without the City's written consent; and McDonald shall cause to be discharged all mechanic's or materialmen's liens arising from any labor or materials furnished to the McDonald Property and Parcel 2 that were made at the request of McDonald, its agents, or contractors, prior to the respective Closing Date and any mortgages or other such similar encumbrances. (c) McDonald 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 reasonably acceptable to McDonald. (d) McDonald discloses that there is a well located on the McDonald Property. On the respective Closing Date for each parcel to be conveyed, McDonald shall provide a Well Disclosure Certificate. The City shall be responsible for any and all costs associated with capping and/or sealing the well. (e) To the best of McDonald's knowledge, no toxic or hazardous substances or wastes, pollutants or contaminants (as defined in applicable federal or state laws or local ordinances) have been generated, treated, stored, released or disposed of, or otherwise placed, deposited in or located on the McDonald Property, nor has any activity been undertaken on the McDonald Property that would cause or contribute to (i) the McDonald Property to become a treatment, storage or disposal facility as defined in any federal or state law or local ordinance, (ii) a release or threatened release of toxic or hazardous substances or wastes, 9 19117200 pollutants or contaminants, from the McDonald Property as prohibited by any federal or state law or local ordinance, or (iii) the discharge of pollutants or effluents into any water source or system, the dredging or filling of any waters or the discharge into the air of any emissions, that would require a permit under any federal or state law or local ordinance. To the best of the McDonald's knowledge, there are no toxic or hazardous substances or wastes, pollutants or contaminants or other environmental conditions in or on the McDonald Property that may support a claim or cause of action under federal or state law or local ordinances or other environmental regulatory requirements. To the best of McDonald's knowledge, no part of the McDonald Property is a "Wetland", as defined by law. McDonald will disclose to the City all environmental reports and studies with respect to the McDonald Property which are in McDonald's possession or control. (f) To the best of McDonald's knowledge, there are no above ground tanks in or about the McDonald Property. To the extent such storage tanks exist, each will be duly registered with all appropriate regulatory and governmental bodies and will be removed or brought into compliance with applicable federal, state and local statutes, regulations, ordinances and other regulatory requirements at McDonald's expense. To the best of the McDonald's knowledge there are no underground storage tanks on the McDonald Property. McDonald discloses that there was a private septic system on the McDonald Property. The septic system was filled by a licensed professional. (g) Prior to September 15, 2017, McDonald shall demolish the structure located on Parcel 2, which shall include removal of footings and backfilling with sand ("Structure Demolition"). McDonald shall obtain prior City approval of the contract and cost for the Structure Demolition. Except as herein expressly stated, the City is purchasing the McDonald Property and Parcel 2 based upon its own investigation and inquiry and is not relying on any representation of McDonald or other person and is agreeing to accept and purchase the McDonald Property and Parcel 2 "as is, where is" subject to the conditions of examination herein set forth and the express warranties herein contained. The representations set forth in this section shall be continuing for the McDonald Property and Parcel 2 and shall be true and correct as of the Closing Date for the McDonald Property and Parcel 2 with the same force and effect as if made at that time and shall survive the respective Closing Date for a period of two (2) years. 12. POSSESSION. The parties shall deliver possession of the Properties no later than the Initial Closing Date for the McDonald Property, the Exchange Property and the City's conveyance of Parcel 2 or the actual Second Closing Date for McDonald's conveyance of Parcel 2. 13. CONTINGENCIES. (a) City's Contingencies. The obligations of the City under this Agreement are expressly contingent upon each of the following (the "City's Contingencies"): (i) The City shall have determined on or before each Closing Date, that it is satisfied, in its sole discretion, with the results of any environmental/soil 10 191172v10 investigations and tests of the McDonald Property and Parcel 2 to be conducted by the City, the costs of which shall be the responsibility of the City. By executing this Agreement, McDonald hereby authorizes the City, its contractors, and agents to enter upon the McDonald Property and Parcel 2 for purposes of conducting environmental, engineering and soil tests. (ii) The City shall have determined that it is satisfied, in its sole discretion, and Parcel 2 to be conveyed. Dn or before the relevant Closing Date, with the title to the McDonald Property (iii) All of the representations made by McDonald shall be true and correct as of the relevant Closing Date for the McDonald Property and Parcel 2. (iv) City Council approval and recording of the Plat on the Initial Closing Date that will include the Exchange Property and McDonald Property simultaneously with the conveyances contemplated under this Agreement. (v) Approval and recording of the administrative subdivision of Outlot F, Kenwood Trail Business Park for Parcels 1 and 2 on the Initial Closing Date. (vi) Completion of the Structure Demolition on or before the Second Closing. If the City's Contingencies have not been satisfied on or before the relevant Closing Date, then the City may, at the City's option, terminate this Agreement by giving notice to McDonald on or before the Closing Date. The contingencies set forth in this section are for the sole and exclusive benefit of the City, and the City shall have the right to waive the contingencies by giving notice to McDonald. (b) McDonald's Contingencies. The obligations of McDonald under this Agreement are expressly contingent upon each of the following ("McDonald Contingencies"): (i) McDonald shall have determined on or before the Initial Closing Date, that it is satisfied, in its sole discretion, with the results of any environmental/soil investigations and tests of the Exchange Property conducted by McDonald, the costs of which shall be the responsibility of McDonald. By executing this Agreement, the City hereby authorizes McDonald, its contractors, and agents to enter upon the Exchange Property for purposes of conducting environmental, engineering and soil tests. (ii) McDonald shall have determined on or before the Initial Closing Date, that it is satisfied, in its sole discretion, with the title to the Exchange Property. (iii) All of the representations made by the City shall be true and correct as of the Initial Closing Date. (iv) Recording of the Plat and City payment or waiver of Connection Charges 11 19117200 and Development Fees for the Exchange Property on the Initial Closing Date, including the following: • Storm Sewer Area Charge • Sanitary Sewer Unit Charge • Watermain Unit Charge • Park Dedication Fee • Cash Fee for Icenic Way and Trail (v) City approval and recording of the administrative subdivision of Outlot F, Kenwood Trail Business Park for Parcels 1 and 2 on the Initial Closing Date. If the McDonald Contingencies have not been satisfied on or before the respective Closing Date, then McDonald may, at McDonald's option, terminate this Agreement by giving notice to the City on or before the Closing Date. The contingencies set forth in this section are for the sole and exclusive benefit of McDonald, and McDonald shall have the right to waive the contingencies by giving notice to the City. 14. MISCELLANEOUS. (a) No Partnership or Joint Venture. Nothing in this Agreement shall be interpreted as creating a partnership or joint venture among the parties. (b) No Broker Commissions. Each party represents and warrants to the other parties that there is no broker involved in this transaction with whom the warranting party has negotiated or to whom the warranting party has agreed to pay a broker commission. Each party agrees to indemnify the other parties for any and all claims for brokerage commissions or finders' fees in connection with negotiations for the purchase and sale of the Properties arising out of any alleged agreement or commitment or negotiation by the indemnifying party. (c) No Merger. The provisions of this Agreement shall not be merged into any instruments or conveyance delivered at Closing, and the parties shall be bound accordingly. (d) Entire Agreement; Amendments. This Agreement constitutes the entire agreement among the parties and no other agreement prior to this Agreement or contemporaneous herewith shall be effective except as expressly set forth or incorporated herein. Any purported amendment shall not be effective unless it shall be set forth in writing and executed by the parties or their respective successors or assigns. (e) Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns. (f) Notice. Any notice, demand, request or other communication which may or shall be given or served by the parties shall be deemed to have been given or served on the date the same is deposited in the United States Mail, registered or certified, postage prepaid; 12 191172v10 delivered by a nationally recognized overnight delivery company, or actually received by the recipient and addressed as follows: (i) If to City: City Administrator City of Lakeville 20195 Holyoke Avenue Lakeville, MN 55044 (ii) If to McDonald: Anthony M. McDonald Patricia R. McDonald 20094 Kenwood Trail Lakeville, MN 55044 With a copy to: Robert B. Bauer, Esq. Dougherty, Molenda, Solfest, Hills & Bauer P.A. 14985 Glazier Avenue, Suite 525 Apple Valley, MN 55124 (g) Headings. The headings of the sections and subsections of this Agreement are for convenience of reference only and does not form a part hereof, and in no way interpret or construe such sections and subsections. (h) Survival of Covenants, Representations, Warranties and Agreements. All covenants, representations, warranties and agreements contained herein shall survive the closing. Nevertheless, any claim that either party has breached a representation or warranty must be in writing and must be given by the non -breaching party within two years of the Initial Closing Date or be deemed waived. (i) Governing Law. This Agreement shall be governed by the laws of the State of Minnesota. 0) Counterpart signatures. The parties agree that this Agreement may be executed in two or more counterparts, all of which when taken together shall comprise one and the same instrument. Each party agrees that the other party may rely upon facsimile copies of the signatures of such party. 15. INVOLUNTARY CONVERSION. The acquisition by the City of the McDonald Property is in lieu of eminent domain and is deemed an involuntary conversion pursuant to 26 U.S. Code § 1033. IN WITNESS WHEREOF, the parties have executed this agreement as of the date written above. [Signature pages to follow.] 13 191172v10 [Signature Page for City] CITY OF LAKEVILLE By: Doug s P. Anderson, Mayor By: Charlene Friedges, CitTv 14 19117200 [Signature Page for McDonald] 19117200 15 EXHIBIT A Legal Description of the McDonald Property That portion of the property legally described as follows: Commencing at the intersection of the Northeasterly Right of Way line of State Highway No. 50 and the west line of the Northwest Quarter (NW '/) of Section Twenty-nine (29), Township One hundred fourteen (114), Range Twenty (20), said intersection being 297.65 feet South of the Northwest corner thereof; thence Southeasterly along said Right of Way line a distance of 275 feet to the actual point of beginning; thence continue along said Right of Way 200 feet; thence Northeasterly at right angles a distance of 150 feet; thence Northwesterly and parallel to said Right of Way line a distance of 200 feet; thence Southwesterly a distance of 150 feet to the point of beginning, according to the Government Survey thereof. And That part of the Northwest Quarter of the Northwest Quarter (NW '/ NW '/) of Section Twenty- nine (29), Township One Hundred and Fourteen (114), Range Twenty (20), described as follows: Commencing at the intersection of the Northeasterly right-of-way line of State Highway No. 50 and the West line of the Northwest quarter (NW '/) of Section Twenty-nine (29), Township One Hundred Fourteen (114), Range Twenty (20), said intersection being 297.65 feet South of the Northwest corner of said northwest quarter (NW '/); thence Southeasterly along said right-of- way line for a distance of 275 feet; thence Northeasterly at right angles for a distance of 150 feet to the actual point of beginning of tract to be described; thence continue on the last described line for a distance of 150 feet; thence Southeasterly and parallel to said right-of-way for a distance of 200 feet; thence Southwesterly and at right angles for a distance of 150 feet; thence Northwesterly and parallel to said right-of-way line a distance of 200 feet to the point of beginning, according to the Government Survey thereof, Dakota County, Minnesota. Except parcel 75 on Minnesota Department of Transportation Right of Way Plan No. 19-120, (Abstract Property) 16 19117200 EXHIBIT B Legal Description of Exchange Property That part of the property legally described as follows: Lot 1, Block 2, Viking Square, Dakota County, Minnesota. AND Commencing on the West line of Section 29, Township 114, Range 20, at a point 104.74 feet South of the Northwest corner of said Section 29; thence continuing South on the West line of said Section a distance of 192.91 feet to the North right of way line of State Highway No. 50; thence Southeasterly along said North right of way line a distance of 90 feet; thence Northeasterly at right angles a distance of 150 feet; thence angle left 90 degrees and parallel to said North right of way line a distance of 211.32 feet more or less to point of beginning, Dakota County, Minnesota. Except part shown as Parcel 73 of Minnesota Department of Transportation Right of Way Plat Numbered 19-120. AND Commencing at the intersection of the Northeasterly right of way line of State Highway No. 50 and the West line of the Northwest 1/4 of Section 29, Township 114, Range 20, (said point of intersection being 297.65 feet South of the Northwest corner of said Section 29) thence Southeasterly along said Northeasterly right of way line of said Highway No. 50 a distance of 90 feet to the actual point of beginning, thence continuing along said right of way line 185 feet; thence Northeasterly at right angles to said right of way line a distance of 150 feet; thence Northwesterly and parallel to said Northeasterly right of way line a distance of 185 feet; beginning, except Parcel 74 as shown on Minnesota Department of Transportation Right of Way Map No. 19-120. AND All that part of the Northwest 1/4 of Northwest 1/4 of Section 29, Township 114, Range 20 described as follows: Commencing at the Northwest corner of the Northwest 1/4 of Section 29, Township 114, Range 20; thence South along the West line of said Northwest 1/4 for a distance of 104.74 feet; thence Southeasterly along a line that is parallel to and distant 150 feet Northeasterly (measured at right angles) of the Northeasterly right-of-way line of State Highway No. 50 for a distance of 396.32 feet; thence Northeasterly and at right angles for a distance of 150 feet; thence North and parallel to the West line of said Northwest 1/4 a distance of 239.68 feet to the 17 19117200 North line of the Northwest 1/4 of Section 29, Township 114, Range 20; thence West along the North line of said Northwest 1/4 a distance of 402.47 feet to the Northwest corner, according to the United States Government Survey thereof and situate in Dakota County, Minnesota. /:.ri 7 Commencing at the intersection of the Northeasterly Right of Way line of State Highway No. 50 and the west line of the Northwest Quarter (NW 1/4) of Section Twenty-nine (29), Township One hundred fourteen (114), Range Twenty (20), said intersection being 297.65 feet South of the Northwest corner thereof; thence Southeasterly along said Right of Way line a distance of 275 feet to the actual point of beginning; thence continue along said Right of Way 200 feet; thence Northeasterly at right angles a distance of 150 feet; thence Northwesterly and parallel to said Right of Way line a distance of 200 feet; thence Southwesterly a distance of 150 feet to the point of beginning, according to the Government Survey thereof. I:�i7 That part of the Northwest Quarter of the Northwest Quarter (NW 1/4 NW 1/4) of Section Twenty-nine (29), Township One Hundred and Fourteen (114), Range Twenty (20), described as follows: Commencing at the intersection of the Northeasterly right-of-way line of State Highway No. 50 and the West line of the Northwest quarter (NW 1/4) of Section Twenty-nine (29), Township One Hundred Fourteen (114), Range Twenty (20), said intersection being 297.65 feet South of the Northwest corner of said northwest quarter (NW 1/4); thence Southeasterly along said right-of-way line for a distance of 275 feet; thence Northeasterly at right angles for a distance of 150 feet to the actual point of beginning of tract to be described; thence continue on the last described line for a distance of 150 feet; thence Southeasterly and parallel to said right-of-way for a distance of 200 feet; thence Southwesterly and at right angles for a distance of 150 feet; thence Northwesterly and parallel to said right- of-way line a distance of 200 feet to the point of beginning, according to the Government Survey thereof, Dakota County, Minnesota. Except Parcel 75 on Minnesota Department of Transportation Right of Way Plat No. 19- 120. AND The Southeasterly Half of Lot 2, AND All of Lots 3 and 4, Block 1, Antlers Park, Dakota County, Minnesota. 18 191172v10 EXCEPT that part thereof lying within Parcel 72 on MINNESOTA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY PLAT NO. 19-120, according to the recorded plat thereof, said Dakota County. :m Lot 1, AND the Northwesterly Half of Lot 2, Block 1, Antlers Park, Dakota County, Minnesota. EXCEPT that part thereof lying within Parcel 71 on MINNESOTA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY PLAT NO. 19-120, according to the recorded plat thereof, said Dakota County. AND Lot 1, Block 2, and the West 20 feet of Lot 2, Block 2, Lenihan's Lots, Antlers Park, Except Parcel 66 Minnesota Department of Transportation Right of Way Plat No. 19-120, Dakota County, Minnesota. Together with that part of the Alley, as delineated and dedicated in "ANTLERS PARK", according to the recorded plat thereof, said Dakota County, accruing thereto by reason of vacation. V Lots 2, Block 2, except the West 20 feet, and Lot 3, Block 2, Lenihan's Lots, Antlers Park, Except Parcel 67 Minnesota Department of Transportation Right of Way Plat No. 19-120, Dakota County, Minnesota. Together with that part of the Alley, as delineated and dedicated in "ANTLERS PARK", according to the recorded plat thereof, said Dakota County, accruing thereto by reason of vacation. AND Lot 4, Block 2, Lenihan's Lots, Antlers Park, except that part thereof described as Parcel 68 on Minnesota Department of Transportation Right of Way Plat No. 19-120, according to the recorded plat thereof, and situate in Dakota County, Minnesota. Together with that part of the Alley, as delineated and dedicated in "ANTLERS PARK", according to the recorded plat thereof, said Dakota County, accruing thereto by reason of vacation. to be platted as Lot 1, Block 1, Kenwood Trail Business Park, Dakota County, Minnesota, according to the plat to be recorded in Dakota County, Minnesota. 19 19117200 EXHIBIT C Legal Description of Parcels 1 and 2 Those portions of the McDonald Property to be further subdivided as follows: Parcel 1 The northeasterly 135.00 feet, as measured at a right angle, of Outlot F, KENWOOD TRAIL BUSINESS PARK, according to the recorded plat thereof, Dakota County, Minnesota. Parcel 2 Outlot F, KENWOOD TRAIL BUSINESS PARK, according to the recorded plat thereof, Dakota County, Minnesota, EXCEPT therefrom the northeasterly 135.00 feet, as measured at a right angle, of said Outlot F. 20 19117200