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HomeMy WebLinkAbout17-060CITY OF LAKEVILLE RESOLUTION NO. 17-60 RESOLUTION APPROVING THE ACQUISITION 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 acquire and convey certain property ("Property") legally described in and under the terms of the proposed land exchange agreement attached as Exhibit "A" between White Funeral Homes, Inc. ("White"), and the City of Lakeville ("Land Exchange Agreement") for the purpose of expanding County State Aid Highway (CSAH) 50 (Kenwood Trail) to a four -lane divided highway; 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: The City Council finds that the acquisition and disposition of the Property under the Land Exchange Agreement has no relationship to the comprehensive municipal plan and approves the Land Exchange Agreement; 2. Review by the Planning Commission of the disposition of the Property is hereby dispensed with; and 3. The Mayor, City Administrator and City Clerk are authorized and directed to execute all documents, and take all appropriate measures to convey the Property under the terms of the Land Exchange Agreement. ADOPTED by the Lakeville City Council this 15th day of May 2017 WV �• oMayor Charlene Friedges, City erk LAND EXCHANGE AGREEMENT This Land Exchange Agreement (the "Agreement") is made thisday of f ti1a , 2017 by and between the CITY OF LAKEVILLE, a Minnesota municipal corporation ("City") and WHITE FUNERAL HOMES, INC., a Minnesota corporation ("White"). RECITALS A. White is the fee owner of the real property located at 20134 Kenwood Trail, Lakeville, MN 55044 and legally described in Exhibit A attached hereto ("White Property"). B. The City desires to acquire portions of the White Property for right of way purposes as legally described in Exhibit B attached hereto ("White Exchange Parcels"); C. White agrees to convey the White Exchange Parcels to the City in exchange for 2 City parcels legally described in Exhibit C attached hereto ("Parcels 1 and 2," individually referred to herein as "Parcel" and collectively, the "City Parcels"); D. The City agrees to convey Parcel 1 to White at an initial closing and will later convey Parcel 2 upon future City acquisition of Parcel 2; E. The White Exchange Parcels and City Parcels 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, White agrees that it will convey to the City the White Exchange Parcels and the City agrees that it will convey the City Parcels to White in accordance with the terms of this Agreement. 2. PURCHASE PRICE. A. The parties agree that in addition to the conveyance of the City Parcels, the City will pay White Two Hundred Forty -Three Thousand and no/100 ($243,000.00) Dollars based on the following: Land Value of White Exchange Parcels: $ 34,000.00 Loss of Parking: $ 30,000.00 Cost to Cure: $150,000.00 Construction Interference: $ 14,000.00 Landscaping and Irrigation Relocation $ 10,000.00 Relocation of Existing Light Fixtures $ 5,000.00 Total $243,000.00 1 1921720 The foregoing payment, subject to pro rations and adjustments set forth in this Agreement, shall be made in cash or by wire transfer of immediately available funds at the Initial Closing (as hereinafter defined). B. If the Second Closing does not occur prior to September 30, 2017, the City will pay White $44,255.00, unless this time period is otherwise extended by approval of White, which extension will not be unreasonably denied, provided reasonable efforts and progress on acquisition of Parcel 2 by the City have been made. Payment under this provision is contingent upon White providing a quit claim deed to Parcel 2. 3. ENVIRONMENTAL ASSESSMENT. As soon as possible after the execution hereof, the City and White 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 White 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 White 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. White 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 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 White 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: 2 1921720 (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 Commitments. (ii) Title Objections. The City and White 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 White 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 White 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, White 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 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. 3 1921720 (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. CLOSINGS. (a) Unless terminated earlier or extended as provided herein, the date for closing the sale and purchase of the White Exchange Parcels and Parcel 1 (the "Initial Closing") shall be on a date mutually agreed to by the parties but not later than May 19, 2017 (the "Initial Closing Date"). Each transaction occurring on the Initial Closing Date is contingent upon the successful closing of the other transaction. (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 30, 2017, unless otherwise extended by the parties (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. WHITE'S CLOSING OBLIGATIONS. On the respective closing date for each transaction, White shall execute and deliver to City: (a) The duly executed limited warranty deed to the White Exchange Parcels ("Initial Closing") conveying title to the City 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 the City is responsible; (iii) Those items approved by the City pursuant to Paragraph 5 of this Agreement; and (iv) 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 White, and no labor or materials have been furnished to the respective White Exchange Parcels for which payment has not been made, and that to the best of White's knowledge there are no unrecorded interests relating to the White Exchange Parcels. 4 1921720 (c) Such other documents required under Paragraph 13 of this Agreement. (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 White: (a) The Purchase Price as required by Paragraph 2; (b) On the Initial Closing Date, the duly executed limited warranty deed to Parcel 1 conveying title to White 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 White is responsible; (iii) The Kenwood Trail Business Park plat; (iv) Those items approved by White pursuant to Paragraph 5 of this Agreement; and (v) Reservation of any minerals or mineral rights in the State of Minnesota. (c) On the Second Closing Date the duly executed limited warranty deed to Parcel 2 conveying title to White 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 White is responsible; (iii) The Kenwood Trail Business Park plat; (iv) Those items approved by White pursuant to Paragraph 5 of this Agreement; and (v) Reservation of any minerals or mineral rights in the State of Minnesota. (d) 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 Parcel to be conveyed for which payment has not been made, and that to the best of City's knowledge there are no unrecorded interests relating to the Parcel to be conveyed. 5 1921720 (e) Such other documents required under Paragraph 13 of this Agreement. (fl Such other documents as may be reasonably required by the Title Company. 9. PRORATIONS. The City and White 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 White Property and the City Parcels. 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) White Exchange Parcels. General real estate taxes payable in the years prior to the year of closing and installments of special assessments will be paid by White. General real estate taxes payable in the year of closing, if any, shall be prorated by White and the City, on the land value only, as of the respective closing date on a per diem basis based upon a calendar year. White shall be responsible for the General real estate taxes on the building value in the year of closing. The City shall pay on or before the Closing Date all pending special assessments that are due prior to the Closing. White 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. (ii) City Parcels. 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 White 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. White 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 of all deeds. (e) Fees by Title Company. The City will be responsible for any and all fees charges by the Title Company for the Closings. 6 1921720 10. CITY'S REPRESENTATIONS. On information and belief, the City hereby represents to White, 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) Except as otherwise provided herein, on the respective closing date for each transaction, there will be no (i) outstanding leases or occupancy agreements, or (ii) outstanding contracts made by City for any improvements to the Parcels to be conveyed 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 Parcels to be conveyed or be binding upon White or upon the Parcels to be conveyed subsequent to the respective Closing without White'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 Parcels to be conveyed that were made at the request of the City, its agents, or contractors, prior to the respective 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 White. (e) The City certifies that the City does not know of any "Wells" on the described Parcels within the meaning of Minn. Stat. Chapter 103I, except as disclosed 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 Parcels, nor has any activity been undertaken on the Parcels that would cause or contribute to (i) the Parcels 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 Parcels 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 Parcels 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 Parcels is a "Wetland", as defined by law. The City will disclose 7 1921720 to White all environmental reports and studies with respect to the Parcels 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 Parcels. 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 Parcels. The City certifies that sewage generated on the Parcels goes to a facility permitted by the Minnesota Pollution Control Agency. (i) The City shall be responsible for processing the administrative subdivision of the White Exchange Parcels from the White Property and for the costs as provided in this Agreement. 0) The City will reimburse White for the costs of the Improvements further identified under Paragraph 11(g). The City will reimburse on a "cost incurred" basis. White must provide the City with its written payment requests and documentation that shows the Improvements have actually been completed consistent with the contracts for the Improvements and this Agreement. Subject to verification of a reimbursement request (and appropriate documentation), the City will reimburse within thirty-five (35) days. Except as herein expressly stated, White is acquiring the Parcels 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 Parcels "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 respective closing date 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. 11. WHITE'S REPRESENTATIONS. On information and belief, White 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 White is a party so as to adversely affect the consummation of such transactions. (b) On the Closing Date there will be no (i) outstanding leases or occupancy agreements, or (ii) outstanding contracts made by White for any improvements to the White 8 1921720 Exchange Parcels which have not been fully paid for or for which White shall not have made arrangements to pay off, at the Closing, or that will affect the White Exchange Parcels or be binding upon the City or upon the White Exchange Parcels subsequent to the Closing without the City's written consent; and White shall cause to be discharged all mechanic's or materialmen's liens arising from any labor or materials furnished to the White Exchange Parcels that were made at the request of White, its agents, or contractors, prior to the Closing Date and any mortgages or other such similar encumbrances. (c) White 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 White. (d) White confirms that White does not know of any "wells" on the White Exchange Parcels within the meaning of Minn. Stat. ch. 103I, except as disclosed herein. This representation is intended to satisfy the requirements of that statute. (e) To the best of White'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 White Exchange Parcels, nor has any activity been undertaken on the White Exchange Parcels that would cause or contribute to (i) the White Exchange Parcels 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 White Exchange Parcels 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 White's knowledge, there are no toxic or hazardous substances or wastes, pollutants or contaminants or other environmental conditions in or on the White Exchange Parcels 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 White's knowledge, no part of the White Exchange Parcels is a "Wetland", as defined by law. White will disclose to the City all environmental reports and studies with respect to the White Exchange Parcels which are in White's possession or control. (f) To the best of White's knowledge, there are no above ground tanks in or about the White Exchange Parcels. 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 White's expense. To the best of the White's knowledge there are no underground storage tanks on the White Exchange Parcels. (g) Prior to June 1, 2018, White shall complete the following work with estimated costs as follows: 9 1921720 (i) Construct a new parking lot within Outlot F, Kenwood Trail Business Park, together with curb and gutter, consisting of 3.5" of bituminous and 8" of Class 5 aggregate base ($50,000); (ii) Resurface existing parking lot on the remnant White Property consisting of a 1.5" bituminous mill and overlay ($50,000); and (iii) Relocate the existing business sign on the White Exchange Parcels to property to be owned by White following the Closings ($30,000); (collectively referred to herein as the "Improvements"). Payment for the Improvements by the City shall be contingent upon the work being consistent with a contract entered into by White and approved by the City prior to execution. White agrees to obtain two estimates for the Improvements to ensure competitive pricing. White will pay for any desired betterments or improvements. Except as herein expressly stated, the City is purchasing the White Exchange Parcels based upon its own investigation and inquiry and is not relying on any representation of White or other person and is agreeing to accept and purchase the White Exchange Parcels "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 White Exchange Parcels and shall be true and correct as of the Closing Date for the White Exchange Parcels with the same force and effect as if made at that time and shall survive the 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 White Exchange Parcels and Parcel 1 or the actual Second Closing Date for the City'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 the Initial Closing Date that it is satisfied, in its sole discretion, with the results of any environmental/soil investigations and tests of the White Exchange Parcels to be conducted by the City, the costs of which shall be the responsibility of the City. By executing this Agreement, White hereby authorizes the City, its contractors, and agents to enter upon the White Exchange Parcels for purposes of conducting environmental, engineering and soil tests. (ii) The City shall have determined on or before the Initial Closing Date, that it is satisfied, in its sole discretion, with the title to the White Exchange Parcels to be conveyed. 10 1921720 (iii) All of the representations made by White shall be true and correct as of the Initial Closing Date for the White Exchange Parcels. (iv) City acquired fee title to Parcel 2 prior to the Second Closing Date. If the City's Contingencies in (i) — (iii) above have not been satisfied on or before the Initial Closing Date, then the City may, at the City's option, terminate this Agreement by giving notice to White on or before the Initial Closing Date. If the City's Contingency in (iv) has not been met, then the City shall be obligated to make the payment pursuant to the terms of Paragraph 2B. 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 White. (b) White's Contingencies. The obligations of White under this Agreement are expressly contingent upon each of the following ("White Contingencies"): (i) White shall have determined on or before the respective closing date, that it is satisfied, in its sole discretion, with the results of any environmental/soil investigations and tests of the Parcels conducted by White, the costs of which shall be the responsibility of White. By executing this Agreement, the City hereby authorizes White, its contractors, and agents to enter upon the Parcels for purposes of conducting environmental, engineering and soil tests. (ii) White shall have determined on or before the respective closing date that it is satisfied, in its sole discretion, with the title to the Parcel to be conveyed. (iii) All of the representations made by the City shall be true and correct as of the respective closing date for the Parcel to be conveyed. If the White Contingencies have not been satisfied on or before the respective closing date, then White may, at White's option, terminate this Agreement by giving notice to the City on or before the respective closing date. The contingencies set forth in this section are for the sole and exclusive benefit of White, and White 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 which the warranting party has negotiated or to whom the warranting party has agreed to pay a broker commission. Each 11 1921720 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; 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 With a copy to: Andrea McDowell Poehler Campbell Knutson, Professional Association Grand Oak Office Center I 860 Blue Gentian Road, Suite 290 Eagan, MN 55121 (ii) If to White: White Funeral Homes, Inc. 20134 Kenwood Trail Lakeville, MN 55044 With a copy to: 12 1921720 (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. tures. 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 White Exchange Parcels 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 1921720 [Signature Page for City] CITY OF LAKEVILLE 1• • • • Charlene Friedges, City 14 1921720 [Signature Page for White] WHIT FUNERAL HOMES, INC. lam' By: Its: Its: 15 1921720 EXHIBIT A Legal Description of the White Property That part of the Northwest Quarter of Section 29, Township 114 North, Range 20 West of the 5th Principal Meridian, Dakota County, Minnesota, described as follows: Commencing at the intersection of the northeasterly right-of-way line of State Highway No. 50 and the west line of said Northwest Quarter, said intersection being 297.65 feet south of the northwest corner of said Northwest Quarter; thence southeasterly along said right-of-way line, a distance of 475.00 feet to the point of beginning of the parcel to be described; thence continue along said right-of-way line, a distance of 250.00 feet; thence northeasterly, at right angles, a distance of 300.00 feet; thence northwesterly and parallel to said right-of-way line, a distance of 250.00 feet; thence southwesterly, a distance of 300.00 feet to the point of beginning. EXCEPT those parts thereof lying within MINNESOTA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY PLAT NO. 19-120 and DAKOTA COUNTY ROAD RIGHT OF WAY MAP NO. 469, according to the recorded plat and map thereof, said Dakota County. 16 1921720 EXHIBIT B Legal Description of White Exchange Parcels The northeasterly 50.00 feet, as measured at a right angle, of the following described parcel: That part of the Northwest Quarter of Section 29, Township 114 North, Range 20 West of the 5`h Principal Meridian, Dakota County, Minnesota, described as follows: Commencing at the intersection of the northeasterly right-of-way line of State Highway No. 50 and the west line of said Northwest Quarter, said intersection being 297.65 feet south of the northwest corner of said Northwest Quarter; thence southeasterly along said right-of-way line, a distance of 475.00 feet to the point of beginning of the parcel to be described; thence continue along said right-of-way line, a distance of 250.00 feet; thence northeasterly, at right angles, a distance of 300.00 feet; thence northwesterly and parallel to said right-of-way line, a distance of 250.00 feet; thence southwesterly, a distance of 300.00 feet to the point of beginning. EXCEPT those parts thereof lying within MINNESOTA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY PLAT NO. 19-120 and DAKOTA COUNTY ROAD RIGHT OF WAY MAP NO. 469, according to the recorded plat and map thereof, said Dakota County. AND Parcel 63 on DAKOTA COUNTY ROAD RIGHT OF WAY MAP NO. 469. 17 1921720 EXHIBIT C Legal Description of Parcels 1 and 2 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. 18 1921720 N W . W �2 N r-4 n0 d W muiN z ~ < o j 0 Y _ oo�r 0 `ono u F n N 3 a w a a ca - V r Z �o o LL 6 u Z°a � o W s b V v m V) ^ z 0;E rg >ra 0 Y u a W"•z A E a V wio ° o J m CL E v o 1¢ LnLn Ln _ a 7f 7 Z aim �� n> CO w z J OJ 2J xW W y 0 Z. 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