HomeMy WebLinkAbout21-165CITY OF LAKEVILLE
DAKOTA COUNTY, MINNESOTA
RESOLUTION NO. 21-165
RESOLUTION APPROVING THE ACQUISITION OF REAL PROPERTY
WHEREAS, the City is proposing to acquire certain property ("Property") legally described
in and under the terms of the proposed purchase agreement attached as Exhibit "A" ("Purchase
Agreement") between the City of Lakeville ("Buyer") and 4 West Capital Holdings, LLC ("Seller");
and
WHEREAS, the planning agency has reviewed the acquisition and finds that it is consistent
with the City's comprehensive municipal plan.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lakeville that
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 Purchase Agreement.
ADOPTED this 6th day of December 2021 by the City Council of the City of Lakeville
CITY OF LAKEVILLE
BY:
Douglas' '. Anderson, Mayor
ATTEST:
Charlene Friedges, City
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made as of _ day of November,
2021 ("Effective Date"), between City of Lakeville, Minnesota ("Seller"), and 4 West Capital
Holdings, LLC, a Minnesota limited liability company ("Buyer").
WHEREAS, the Seller is the fee owner of property located in the City of Lakeville with
Property Identification Numbers 22-44371-01-010 and 22-41660-00-070, as legally described in
Exhibit A attached hereto ("Seller Property"); and
WHEREAS, it is the intent of Seller that a portion of the Seller Property together with a
portion of the abutting right of way platted as 1St Street in Antlers Park, Dakota County, Minnesota,
be platted by Seller prior to Closing (defined herein) as Kenwood Trail Business Park 2nd Addition,
which shall include one outlot to be legally described as Outlot A, Kenwood Trail Business Park
2nd Addition to be owned by the City ("City Outlot"), and one lot to be legally described as Lot
1, Block 1, Kenwood Trail Business Park 2nd, which Lot is generally depicted in Exhibit B attached
hereto ("Subject Property"); and
WHEREAS, the Buyer and the seller desire to enter into this Purchase Agreement for the
sale of the Property from Seller to Buyer.
NOW, THEREFORE, the Buyer and Seller agree as follows:
1. Sale of Property. Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller, the
following property (collectively, the "Property"):
1.1 Real Property. That portion of the Seller Property to be platted as the Subject
Property, together with Seller's interest, if any, under any recorded covenants,
conditions and restrictions or similar document(s) affecting the property, which the
parties acknowledge contains approximately 2.52 acres, or approximately
109,771.2 square feet of land, with a legal description to be verified by the Survey
and the Title Company (both as hereinafter defined) on or before Closing.
1.2 Contracts. All contracts and agreements which materially affect or relate to the Real
Property, including service contracts, supply contracts, management contracts and
maintenance contracts (collectively, the "Contracts"); provided, however, that
Buyer shall have the right to notify Seller prior to the expiration of the Due
Diligence Period (as hereinafter defined) as to which Contracts Buyer would
require Seller to cancel at Closing, and Seller would cause the cancellation of the
same on or prior to Closing, at Seller's sole cost and expense; and
1.3 Records. Seller's interests in any and all records pertaining to the Real Property,
including but not limited to those regarding real estate taxes, assessments, utilities
and other operating expenses, surveys, security deposits, wells, septic systems,
environmental matters or hazardous substances, plans, specifications, reports,
insurance, maintenance and repairs, services (collectively, the "Records").
2. Purchase Price and Manner of Payment. ONE MILLION ONE HUNDRED THOUSAND and
NO/ 100 DOLLARS ($1,100,000.00) (the "Purchase Price") which shall be paid to Seller, subject
to satisfaction of certain due diligence and other contingencies described herein. The Purchase
Price shall be paid as follows:
2.1 Earnest Money. $25,000 as earnest money ("Earnest Money"), which Earnest
Money shall be deposited in a trust account of DCA Title, 7373 147a` Street West,
Suite 161, Apple Valley, Minnesota 55124, ("Escrow Agent" or "Title
Company") within three (3) business days after full execution and delivery of this
Agreement. The Earnest Money shall be applied to the Purchase Price at Closing.
The Earnest Money shall become be non-refundable after expiration of the Due
Diligence Peri od described below, except as otherwise provided under Sections, 3,
4, 7.4, 11 and 17 of this Agreement.
2.2 Closing Payment. $1,075,000.00 in readily available funds at Closing (as
hereinafter defined) through financing on terms and conditions acceptable to Buyer
at Buyer's sole and absolute discretion; and
3. Buyer Contingencies. The following contingencies must be satisfied or waived (or deemed
waived) before the refundable Earnest Money becomes non-refundable and Buyer becomes bound
to close this transaction. Buyer shall have until the Contingency Date (defined below) to complete
the following contingencies. Buyer shall have the right to unilaterally waive any contingency by
written notice to Seller. The contingencies are as follows:
3.1 Title. Title shall have been found acceptable, or been made acceptable, in
accordance with the requirements and terms of Section 8 below.
3.2 Access and Inspection. Buyer being satisfied in its sole discretion with the results
of its due diligence investigation of the Property ("Due Diligence"), including
without limitation its review and analysis of the Property Information (as defined
below), to be completed within one hundred and twenty (120) days after the
Effective Date of this Agreement and with a right to one thirty (30) day extension
after first 120 days ("Due Diligence Period"). In connection therewith, at any
time from and after the Effective Date, Buyer and its representatives, agents and
contractors shall have the right to access the Property at all reasonable times for
the purpose of conducting physical and visual inspections, investigations, and
testing as Buyer deems necessary, including without limitation obtaining an
appraisal and survey of the Real Property. Buyer shall pay all costs and expenses
of appraisal, investigation and testing, shall repair any damage which it causes to
the Real Property, and shall defend, indemnify and hold Seller harmless from all
claims and liabilities relating to Buyer's activities (excluding liabilities arising
from discovery of any existing Hazardous Substances on the Real Property).
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3.3 Document Review. In connection with Buyer's Due Diligence, within 15 days after
the Effective Date Seller shall have provided Buyer with copies of the following
items ("Property Information"), to the extent such items exist and are in Seller's
possession, or are reasonably available to Seller:
a. existing ALTA survey of the Real Property ("Survey");
b. a copy of any Phase I and/or Phase Il Environmental Report, if any,
pertaining to the Real Property, as well as copies of any environmental
permits or reports and any geotechnical or soil reports pertaining to the
Real Property;
C. all documents, agreements, studies, reports, inspection reports, real and
personal property tax bills, utility bills, approvals of or from any
governmental authority, evidence of water rights, plats, maps and plans
and specifications;
d. documents pertaining to any conditions or restrictions on use of the
Property, including easements that burden and/or benefit the Real
Property;
e. CC&Rs recorded against the Real Property;
f. all documents relating to entitlements and/or governmental approvals for
the Property, including without limitation plats and records pertaining to
zoning information and use permits, if any; environmental constraints on
the Property; and certificates of occupancy, if any and as applicable;
g. identification of any litigation affecting the Property or of which Seller is
aware or should reasonably be aware; and
h. such other documentation in the possession or reasonable control of Seller
related to the ownership, maintenance or operation of the Property as
Buyer may reasonably request.
3.4 Plat. Seller completing final plat of Kenwood Trail Business Park 2nd Addition
("Plat") on or before the Closing Date at Seller expense with payment by Seller of
any City fees related to the Plat including park dedication, storm fees and platting
costs.
3.5 Financing. Buyer obtaining financing of its purchase of the Property on or before
Closing on terms and conditions satisfactory to Buyer in its sole discretion.
3.6 Survey. Seller providing an ALTA survey of the Property within the Contingency
Date ("Survey").
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3.7 Litigation. As of the Closing, there being no litigation or pending or threatened
claims which would limit, impede, threaten or prevent or seek to prevent the
consummation of the transaction or have or threaten to have a materially adverse
impact on the Property.
3.8 No Liens or Encumbrances; Title. The Property being free of all liens, claims or
encumbrances not acceptable to Buyer, including Buyer being able to obtain title
insurance coverage on the Real Property acceptable to Buyer.
3.9 Approvals. Buyer obtaining during the Due Diligence Period any necessary
approvals and required permits for Buyer's intended development of the Property
from all governmental authorities having jurisdiction over the Property
(collectively the "Approvals"). Buyer shall diligently prepare and submit all
applications for Approvals (including any required documentation and plans) and
pursue receipt of each Approval. Seller will cooperate with Buyer in connection
with seeking all Approvals; provided, however, there will be no document creating
or evidencing any encumbrance by Buyer on the Property filed until after Closing.
Such cooperation shall include, without being limited to, the signing of all
documents necessary or reasonably incident to the processing of such applications
and attendance at whatever meetings may be reasonably required in order that
Buyer may receive approval of such applications.
The "Contingency Date" shall be the date of expiration of the Due Diligence period or such other
date as expressly provided herein. Buyer shall have the right to terminate this Agreement by
written notice to Seller not later than the Contingency Date if any of the forgoing contingencies
have not been satisfied, in Buyer's sole and absolute discretion. Upon such termination, the Earnest
Money shall be immediately returned to Buyer and upon such return neither party will have any
further rights or obligations regarding this Agreement or the Property. If no such notice is delivered
by Buyer to Seller prior to the Contingency Date, then all contingencies shall be deemed waived.
The contingencies set forth in this Section 3 are specifically stated and agreed to be for the sole
and exclusive benefit of the Buyer and the Buyer shall have the right to unilaterally waive such
contingencies by written notice to Seller.
4. Seller's Contingencies. The obligations of Seller under this Agreement are expressly
contingent upon recording a final plat for Kenwood Trail Business Park 2°d Addition on or before
the Closing Date. Seller shall have the right to terminate this Agreement by written notice to Buyer
if the forgoing contingency has not been satisfied on or before the Closing Date. Upon such
termination, the Earnest Money shall be immediately returned to Buyer and upon such return
neither party will have any further rights or obligations regarding this Agreement or the Subject
Property.
5. Closing. The closing of the purchase and sale contemplated by this Agreement (the
"Closing") shall occur 15 calendar Days after expiration of the Due Diligence Period at offices of
the Title Company, unless otherwise mutually agreed in writing (the "Closing Date"). Seller
agrees to deliver possession of the Property to Buyer on the Closing Date.
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5.1 Seller's Closing Documents. On the Closing Date, Seller shall execute and deliver
to Buyer the following (collectively, "Seller's Closing Documents"), all in form
and content reasonably satisfactory to Buyer:
5.1.1 Deed. A Limited Warranty Deed conveying the Real Property to Buyer,
free and clear of all encumbrances except Permitted Exceptions.
5.1.2 Assignment of Records and Contracts. An Assignment of Records
assigning the Records (if any) and Contracts to Buyer in form reasonably
satisfactory to Buyer ("Assignment of Records and Contracts"); and
evidence of the termination of any and all Records or Contracts that cannot
be assigned or transferred to Buyer, or that Buyer requires to be terminated
as provided herein.
5.1.3 Bring Down Certificate. A certificate, signed by Seller and reasonably
acceptable to Buyer, certifying that (a) all Seller's representations and
warranties are true and correct as of the Closing Date, and (b) Seller has
performed all of the covenants and agreements required to be performed by
Seller under this Agreement ("Bring Down Certificate").
5.1.4 Authorizing Resolutions. Appropriate resolutions of Seller approving the
sale described herein and authorizing the signatory(ies) on this Agreement,
the Deed and other documents. Buyer shall also deliver such evidence of
Buyer's power and authority as Title Company may reasonably require.
5.1.5 FIRPTA Affidavit. A non -foreign affidavit, properly executed, containing
such information as is required by Internal Revenue Code Section
1445(b)(2) and its regulations.
5.1.6 Seller's Affidavit, Other Instruments. Seller shall deliver to Buyer an
owner's affidavit as to possession of the Real Property and confirming the
absence of liens, and such further instruments as reasonably may be
required by Title Company to vest in Buyer fee simple title to the Property,
as provided herein.
5.1.7 Well Certificate. If there are any "wells" on the Real Property within the
meaning of Minn. Stats. Chapter 1031, a Well Certificate in the form
required by law.
5.1.8 Storage Tanks. If the Property contains an underground or aboveground
storage tank, or contained an underground or aboveground storage tank that
had a release for which no corrective action was taken, an underground or
aboveground storage tank affidavit in the form required by law.
5.1.9 Platting Documents. The Plat and any documents and agreements related
thereto.
5. 10 Other Documents. All other documents reasonably determined by Buyer or
Title Company to be necessary to convey marketable title to the Property to
Buyer free and clear of all encumbrances except Permitted Exceptions.
5.2 Buyer's Closing Documents. On the Closing Date, Buyer will execute and deliver
to Seller the following (collectively, "Buyer's Closing Documents"), all in form
and content reasonably satisfactory to Seller:
5.2.1 Purchase Price. The Purchase Price less the Earnest Money;
5.2.2 Other Documents. All other documents reasonably determined by Seller or
Title Company to be necessary to convey marketable title to Property to
Buyer.
6. Prorations.
6.1 Title Evidence and Closing Fee. Seller will pay all costs of the Title Commitment
and UCC Searches. Buyer will pay all premiums required for the issuance of the
owner's or lender's title policy, any policy of title insurance, the issuance of any
endorsements Buyer may request to Buyer's policy or any policy and endorsement
costs that may be incurred by Buyer's lender, if any and the cost of any Updated
Survey (as hereinafter defined). Seller and Buyer will divide equally the closing
fee or charge imposed by any closing agent designated by the Title Company.
6.2 Taxes and Recording Costs. Seller shall pay state deed taxes regarding the Deed
and Buyer shall pay costs of recording the same and the conservation fees
attributable to the deed.
6.3 Real Estate Taxes and Special Assessments. There are currently no real estate taxes
on the Property. Buyer shall pay all real estate taxes and installments of special
assessments due and payable after the date of Closing.
6.4 Operating Expenses; Other Costs. All utility service charges for electricity, heat
and air conditioning service, other utilities, common area maintenance, taxes other
than real estate taxes and income taxes (such as rental taxes), other expenses
affecting the Property which are payable by Seller, and any other costs incurred in
the ordinary course of business or the management and operation of the Property
shall be prorated as of the Closing Date, such that Seller shall pay all such costs and
expenses that accrue prior to the Closing Date, and Buyer shall pay all such costs
and expenses accruing on and after the Closing Date.
All costs incidental to the Closing not otherwise specifically allocated under this Agreement
shall be allocated in accordance with the custom and practice for similar transactions in the area
in which the Property is located.
7. Title.
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7.1 Title to be Conveyed. At Closing, Seller shall convey to Buyer by limited warranty
deed, fee simple title in and to the Property, free and clear of any and all liens,
encumbrances, conditions, easements, assessments, restrictions and other
conditions except the following, which are referred to herein as the "Permitted
Exceptions": (i) matters indicated by the Title Commitment or the Survey (to
which Buyer either does not object, or if objected to, are not cured but are
subsequently waived by Buyer, as provided below; (ii) liens, encumbrances,
adverse claims or other matters which Buyer has created, suffered or permitted to
accrue; and (iii) public utility, road, drainage or other easements indicated by the
Title Commitment, Plat, or the Survey to which Buyer either does not object, or if
objected to, are not cured but are subsequently waived by Buyer, as provided below;
(iv) building and zoning laws, ordinances, state and federal regulations; (v)
reservation of minerals or mineral rights to the State of Minnesota; and (vi) the Plat.
7.2 Seller's Title Evidence. Seller shall, at its sole cost and expense, within five (5)
days after the Effective Date, furnish the following (collectively, "Title Evidence")
to Buyer: (a) a commitment for title insurance issued by the Title Company,
committing to insure title to the Real Property, properly certified, including proper
searches covering bankruptcies, state and federal tax liens, judgments, unpaid taxes,
assessments and pending assessments, in the amount of the Purchase Price, together
with copies of the recorded documents shown as exceptions therein ("Title
Commitment"); (b) a report of UCC Searches made of the Uniform Commercial
Code records of the Secretary of State of Minnesota and Dakota County,
Minnesota, showing no UCC filings regarding any of the Property ("UCC
Search"); and (c) Seller's most recent ALTA survey of the Property ("Survey").
Buyer may, at Buyer's sole cost and expense obtain an updated survey of the
Property prepared by a registered land surveyor selected by Buyer ("Updated
Survey"), which if obtained will be a part of the Title Evidence. A copy of any
updated survey shall immediately be provided to Seller without cost to Seller.
7.3 Buyer's Objections. Buyer shall have fifteen (15) days after the receipt of the last
document comprising the Title Evidence (or no more than 60 days after the
Effective Date if Buyer obtains an Updated Survey) (the "Review Period") to
complete its review and render any written objections to Seller as to matters shown
on the Title Evidence ("Objections"). Buyer shall be deemed to have automatically
made Objections to any mortgage, judgment, tax lien, mechanic's lien or any other
monetary lien against the Property, provided the same are not the result of any act
by Buyer or any of Buyer's members, directors, employees, agents, contractors, or
representatives s (collectively "Monetary Liens"). To the extent Buyer fails to give
written notice of Objections to Seller prior to the expiration of the Review Period,
then all matters not objected to shall be deemed accepted as Permitted Exceptions
as defined below.
7.4 Seller's Obligation to Cure. If Buyer shall have timely notified Seller in writing of
the Objections, then Seller may, but shall not be obligated to, within 10 days after
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receipt of the Objections ("Notice Period"), provide Buyer with written notice of
Seller's intention to cure the Objections ("Seller's Title Cure Notice") on or before
Closing (the "Cure Period"). Except for the Monetary Liens, Seller shall have no
obligation whatsoever to cure or attempt to cure any of Buyer's Objections. If
Seller fails to give to Buyer Seller's Title Cure Notice within the Notice Period, or
Seller notifies Buyer in writing that Seller is unable or unwilling to cure the
Objections, then Buyer shall have the option, within 7 days after the expiration of
the Notice Period to either (i) waive the unsatisfied Objections which shall be
deemed Permitted Exceptions, or (ii) terminate this Agreement by delivering
written notice to Seller, in which event the Earnest Money shall be returned to
Buyer and neither party shall have any further obligations hereunder, other than any
obligations herein that expressly survive termination. If Buyer fails to deliver to
Seller a written notice of its election within such 7 -day period, Buyer shall be
conclusively presumed to have made the election under clause (i) of the preceding
sentence.
7.5 Closing Commitment. No later than ten (10) days prior to the Closing, Seller shall
obtain an update of the Title Commitment (the "Closing Commitment"). An
exception to title or other title defect other than the Permitted Exceptions added to
the Closing Commitment subsequent to the date of the initial Title Commitment,
but prior to the Closing Date shall be deemed an "Unpermitted Exception." If an
Unpermitted Exception is the result of any act or omission by Seller subsequent to
the date hereof, but prior to the Closing Date, then, prior to the Closing Date, Seller
shall be affirmatively obligated to cure by deletion by the Title Company or the
Title Company's agreement to insure over any such Unpermitted Exception. If an
Unpermitted Exception is the result of any act by Buyer or any of Buyer's members,
directors, employees, agents, contractors, or representatives subsequent to the date
hereof, but prior to Closing, then, such Unpermitted Exception shall become and is
a Permitted Exception(s), and Buyer shall be obligated to take title to the Property
subject to such additional Permitted Exception(s).
7.6 Title Policy. At Closing, the Title Company shall furnish to Buyer a current
standard ALTA owner's policy of title insurance based on the Closing Commitment
or an irrevocable commitment ("mark-up commitment" or "proforma policy") to
issue same (the "Title Policy"). The Title Policy will be issued by the Title
Company, will be in the amount of the total Purchase Price and will insure Buyer's
fee simple title to the Property subject to no exceptions other than the Permitted
Exceptions.
8. Operation Prior to Closing. During the period from the Effective Date of this Agreement to the
Closing Date, Seller shall operate and maintain the Property in the ordinary course of operation in
accordance with prudent, reasonable standards applicable to Seller, including the maintenance of
adequate liability insurance and insurance against loss by fire, windstorm and other hazards,
casualties and contingencies, including vandalism and malicious mischief, and will not enter into
any leases of the Property without Buyer's prior written consent.
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9. Representations and Warranties b, Seller. eller. Seller represents and warrants to Buyer as follows:
9.1 Existence: Authority. Seller is duly organized, qualified and in good standing, and
has the requisite power and authority to enter into and perform this Agreement and
Seller's Closing Documents; such documents have been duly authorized by all
necessary action; and such documents are or will be valid and binding obligations
of Seller, enforceable in accordance with their terms.
9.2 Operation. Seller has received no notice of actual or threatened cancellation or
suspension of any utility services or certificate of occupancy for any portion of the
Real Property. To the best of Seller's knowledge, the Property is in compliance
with all applicable governmental laws, regulations, land use requirements, and
permits. Seller has received no notice or complaint from any governmental agency
or subdivision of a governmental agency of any legal or regulatory noncompliance
related to the Property, including but not limited to notices, orders, suits, judgment
or other proceedings relating to fire, building, zoning, air pollution or health violations
that have not been corrected.
9.3 Environmental Laws. Seller hereby represents and warrants that to the best of
Seller's knowledge, and except as may be disclosed in any environmental reports
included within the Property Information or obtained by Buyer, the Real Property
and its existing uses comply with, and Seller is not in violation of applicable federal,
state, county or municipal or local statutes, laws, regulations, rules, ordinances, codes,
standards, orders, licenses and permits of any governmental authorities relating to
environmental matters (being hereinafter collectively referred to as the
"Environmental Laws") and all other applicable environmental standards or
requirements. In addition, to the best of Seller's knowledge, and except as may be
disclosed in any environmental reports included within the Property Information or
obtained by Buyer:
(i) Neither Seller, its agents, employees and independent contractors nor any
tenant has used the Real Property for the purpose of receiving, handling,
using, storing, treatment, transporting and disposing of petroleum products
or any hazardous substance or material meaning asbestos, urea
formaldehyde, polychlorinated biphenyls, nuclear fuel or materials,
chemical waste, radioactive materials, explosives, known carcinogens,
petroleum products or other dangerous or toxic or hazardous pollutant,
contaminant, chemical material or other substance defined in said
Environmental Laws, or other toxic dangerous or hazardous chemicals,
materials, substances, pollutants and wastes, or any chemical, material or
substance exposure which is prohibited, limited or regulated by any federal,
state, county, regional or local authority (all the foregoing being hereinafter
collectively referred to as "Hazardous Materials") except in compliance
with Environmental Laws;
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(ii) There are no existing or pending remedial actions or other work, with respect
to the Real Property in connection with the Environmental Laws, nor will
Seller cause, nor has Seller received any notice of, any of the same;
(iii) No Hazardous Materials have been or will be released into the environment,
or have been or will be deposited, spilled, discharged, placed or disposed of
at, on, or, to the actual knowledge of Seller, adjacent to the Real Property,
nor has the Real Property been used at any time by any person as a landfill
or a disposal site for Hazardous Materials or for garbage, waste or refuse of
any kind;
(iv) There is no fact pertaining to the physical condition of the Real Property or
which materially adversely affects or will materially adversely affect the
Real Property or the use or enjoyment or the value thereof or Seller's ability
to perform the transactions contemplated by this Agreement; and
(v) The sale of the Real Property by Seller to Buyer does not require notice to
or the prior approval, consent or permission of any federal, state or
municipal or local governmental agency, body, board or official.
9.4 FIRPTA. Seller is not a "foreign person", "foreign partnership", "foreign trust" or
"foreign estate", as those terms are defined in Section 1445 of the Internal Revenue
Code.
9.5 Proceedings. There is no action, litigation, investigation, condemnation or
proceeding of any kind pending or, to the best knowledge of Seller, threatened
against Seller with respect to the Property.
9.6 Wells. Seller certifies and warrants that Seller does not know of any "wells" on the
Real Property within the meaning of Minn. Stats. Chapter 103I. This representation
is intended to satisfy the requirements of that statute.
9.7 Storage Tanks. To the best knowledge of Seller, and except as otherwise disclosed
in the environmental reports, no aboveground or underground tanks as defined in
Minn. Stats. Sec. 116.46 are located in or about the Real Property, or have been
located in or about the Real Property.
9.8 Wetlands. To the best of Seller's knowledge, and except as otherwise disclosed in
any the survey or environmental reports included in the Property Information or
obtained by Buyer, there does not exist on the Real Property any portion of a
wetland, watercourse, waterbody, floodplain or shoreland district, or tidelands or
coastal zone, which is regulated by the Army Corps of Engineers, the Minnesota
Department of Natural Resources or any other federal, state or local governmental
agency under any Environmental Law.
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9.9 Sewage Disposal. If sewage is generated at the Real Property, it goes to a facility
permitted by the Minnesota Pollution Control Agency. Seller has no knowledge
that any abandoned individual sewage treatment system on the Real Property.
9.10 Methamphetamine. To Seller's knowledge, no methamphetamine has been
manufactured on the Real Property.
9.11 Title to Real Property. Seller holds marketable title to the Real Property, free and
clear of all encumbrances except Permitted Exceptions and except those that will
be discharged by Seller on the Closing Date.
9.12 Rights of Others to Purchase Property. Seller has not entered into another contract
for the sale of the Property or any portion thereof, nor are there any rights of first
refusal or options to purchase the Property or any portion thereof, or any other rights
of others that might prevent the consummation of the transaction contemplated by
this Agreement.
9.13 Seller's Defaults. To the best knowledge of Seller, Seller is not in any material
default concerning any of its obligations or liability regarding the Property that
would have an adverse effect on the transaction contemplated herein. Seller has
received no notice of any default or breach of any covenants, conditions,
restrictions or easements affecting the Property. Seller has not received any notice
or complaint from any insurance underwriter relating to the condition or operation
of the Property. If Seller receives any such notice at any time prior to Closing,
Seller shall notify Buyer of such notice and, at Buyer's request, provide a copy of
such notice, if in writing, to Buyer.
Seller will indemnify Buyer, its successors and assigns, against, and will hold Buyer, its successors
and assigns, harmless from, any expenses or damages, including reasonable attorneys' fees and
costs, that Buyer incurs or that are asserted against Buyer resulting from or arising out of the breach
of any of the above representations and warranties. Buyer acknowledges that Buyer will be given a
reasonable opportunity to inspect and investigate the Property, either independently or through agents
of Buyer's choosing, and that in purchasing the Property, Buyer is not relying upon any
representations of Seller except as expressly provided herein.
10. As Is Sale. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. IT IS
UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY
TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESSED OR IMPLIED. WITH RESPECT TO THE PROPERTY.
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS
TO HABITABILITY. MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE.
TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE TO BE SET FORTH IN THE
DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR
ENVIRONMENTAL CONDITIONS UTILITIES ACCESS OPERATING HISTORY OR
PROJECTIONS VALUATION. GOVERNMENTAL APPROVALS, THE COMPLIANCE OF
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THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR
COMPLETENESS OF ANY PROPERTY DATA OR OTHER INFORMATION PERTAINING
TO THE PROPERTY DELIVERED TO BUYER BY SELLER OR ANY OTHER MATTER OR
THING REGARDING THE PROPERTY. BUYER ACKNOWLEDGES AND AGREES THAT
UPON THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT, SUBJECT TO SELLER'S EXPRESS REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS PURCHASE AGREEMENT SELLER SHALL SELL
AND BUYER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL
FAULTS". BUYER HAS NOT RELIED AND WILL NOT RELY ON AND SELLER IS NOT
LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES
GUARANTIES. STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING
TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY. WITHOUT
LIMITATION PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT
TO THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGER OF THE
PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR
PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN. DIRECTLY
OR INDIRECTLY. ORALLY OR IN WRITING. UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT.
11. Casualty Condemnation. If all or any part of the Property is substantially damaged by fire,
casualty, the elements, or any other cause, Seller shall immediately give notice to Buyer, and Buyer
shall have the right to terminate this Agreement and receive back all Earnest Money by giving
notice thereof to Seller within thirty (30) days after Seller's notice. If Buyer shall fail to give the
notice, then the parties shall proceed to Closing, and Seller shall assign to Buyer all rights to
insurance proceeds resulting from such event. If eminent domain proceedings are threatened or
commenced against all or any part of the Real Property, Seller shall immediately give notice to
Buyer, and Buyer shall have the right to terminate this Agreement and receive back all Earnest
Money by giving notice thereof to Seller within thirty (30) days after Seller's notice. If Buyer
shall fail to give the notice, then the parties shall proceed to Closing, and Seller shall assign to
Buyer all rights to appear in and receive any award from such proceedings.
12. Broker's Commission. Seller and Buyer represent and warrant to each other that they have
dealt with no brokers, finders or the like in connection with this transaction to whom they owe an
obligation to compensate for such services, except for Frank Clark and John Raddatz with 360
Group, LLC representing the Buyer and Roz Peterson and Bruce Rydeen with Cerron Commercial
Properties, LLC representing the Seller ("Brokers"). Seller agrees to pay 6% of the Purchase
Price at Closing to Brokers to be split 50-50, which amount represents all commissions and fees
payable to Brokers as a result of the transaction described in this Agreement. Seller and Buyer
agree to indemnify each other and to hold each other harmless against all claims, damages, costs
or expenses of or for any other such fees or commissions resulting from their actions or agreements
regarding the execution or performance of this Agreement, and will pay all costs of defending any
action or lawsuit brought to recover any such fees or commissions incurred by the other party,
including reasonable attorneys' fees.
13. Assignment. Buyer may assign or otherwise transfer this Agreement without obtaining the
prior written consent of Seller in the following circumstances: (i) to an affiliate or other entity
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which is controlled by Buyer or Marlene Leiva, including any assignment of rights hereunder to
a related entity or for the purpose of implementing a tax-deferred exchange under Section 1031 of
the Internal Revenue Code; or (ii) to a qualified intermediary for the purpose of implementing a
tax-deferred exchange under Section 1031 of the Internal Revenue Code. Any other assignment
by Buyer of its interest in this Agreement will require the prior written consent of Seller. Any
assignment by Buyer will not relieve Buyer of its obligations under this Agreement.
14. Survival. All of the terms of this Agreement and warranties and representations herein
contained shall survive and be enforceable after the Closing for a period of one (1) year.
15. Notices. Any notice required or permitted hereunder shall be given by: (i) personal delivery
upon an authorized representative of a party hereto; (ii) mailing in a sealed wrapper by United
States mail, return receipt requested, postage prepaid; (iii) deposited cost paid with a nationally
recognized, reputable overnight courier, properly addressed as follows; or (iv) by email to the
following email addresses:
If to Seller: City of Lakeville, MN
Attn: David Olson
20195 Holyoke Ave
Lakeville, MN 55044
E-mail: dolson(a�lakevillemn.gov
With copies to: Seller's Attorney
Campbell Knutson
Grand Oaks Center I
Attn: Andrea McDowell Poehler
860 Blue Gentian Road Suite 290
Eagan, MN 55121
Email: apoehler@ck-law.com
If to Buyer: Marlene Leiva
4 West Capital Holdings, LLC.
6981 Washington Ave. S.
Edina, MN 55439
E-mail: marmarleiva(a gmail.com
With copies to: Buyer's Attorney
Matthew W. Simenstad
Sanford, Pierson, Thone & Strean
1905 E. Wayzata Blvd.
Suite 220
Wayzata, MN 55391
E-mail: matts(a-,ssmnlaw.com
Notices shall be deemed effective on date of receipt, the date of mailing or courier deposit as
aforesaid; provided, however, that if notice is given by mailing the time for response to any notice
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by the other party shall commence to run one (1) business day after any such mailing. Any party
may change its address by giving notice of such change at least ten (10) days prior to the effective
date of such change.
16. Captions; Choice of Law; Etc. The paragraph headings or captions appearing in this
Agreement are for convenience only, are not a part of this Agreement, and are not to be considered
in interpreting this Agreement. This Agreement constitutes the complete agreement between the
parties and supersedes any prior oral or written agreements between the parties regarding the
Property. There are no verbal agreements that change this Agreement. This Agreement binds and
benefits the parties hereto and their successors and assigns. This Agreement has been made under
the laws of the State of Minnesota, and such laws will control its interpretation.
17. Remedies. If either party defaults in any of its respective obligations under this Agreement,
the other party, by notice to such defaulting party specifying the nature of the default and the date
on which this Agreement shall terminate (which date shall not be less than 30 days after the giving
of such notice), may terminate this Agreement. For avoidance of doubt, notice to terminate by
Seller or Buyer given in accordance with Minnesota Statutes Section 559.21 shall be deemed to
satisfy the 30 -day notice requirement set forth above. Upon such termination date, unless the
default so specified has been cured, this Agreement shall terminate.
In the case of any default by Buyer, Seller may terminate this Agreement as provided above
and retain all Earnest Money as liquidated damages as Seller's sole and exclusive remedy (except
as provided below). Seller shall not be entitled to bring an action for damages; provided, however,
Seller retains the right to pursue damages for breach of Buyer's indemnification obligations set
forth in this Agreement.
In the case of any default by Seller, Buyer may terminate this Agreement and have all of
the Earnest Money refunded to Buyer. Except as otherwise provided in Section 10, in the event
of a Seller breach of representation or warranty after Closing, Buyer shall have all rights and
remedies available at law or in equity, provided, that Buyer commences action for such breach
within one (1) year after the Date of Closing.
18. Miscellaneous Provisions.
18.1 Waiver of Trial by Jury. To the extent permitted by law, Seller and Buyer each
acknowledge that it is aware of and had the advice of counsel of its choice with respect to
any rights to trial by jury, and, to the extent permitted by law, each party does hereby
expressly and knowingly waive and release all such rights to trial by jury in any action,
proceeding or counterclaim brought by either party hereto against the other (and/or against
its officers, directors, employees, agents or subsidiary or affiliated entities) on any matters
whatsoever arising out of or in any way connected with this agreement, Buyer's use or
occupancy of the Property, and/or any claim of injury or damage relating thereto.
18.2 Time of the Essence. Time is of the essence of each and every term, condition,
obligation and provision hereof.
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18.3 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which, together, shall constitute one and the
same instrument.
18.4 No Obligations to Third Parties. The execution and delivery of this Agreement
shall not be deemed to confer any rights upon, nor obligate any of the parties thereto, to
any person or entity other than the parties hereto.
18.5 Exhibits. The Exhibits attached hereto are hereby incorporated by reference.
18.6 Amendment. The terms of this Agreement may not be modified or amended except
by an instrument in writing executed by each of the parties hereto.
18.7 Severability. If any portion of this Agreement shall be adjudged by a court to be
void or unenforceable, such portion shall be deemed severed from this Agreement and shall
in no way affect the validity or enforceability of the remaining portions of this Agreement,
so long as the transaction contemplated hereby may be consummated in accordance with
the surviving provisions.
18.8 Time References. Any references in this Agreement to time for performance of
obligations or elapsed time shall mean consecutive calendar days, months, or years, as
applicable, unless otherwise explicitly indicated herein. In the event that the day on which
Buyer or Seller is required to take any action under the terms of this Agreement is not a
business day, such action shall be taken on the next succeeding business day. For purposes
of this Agreement the term "business day" shall mean all calendar days except for
Saturdays, Sundays and nationally observed holidays.
18.9 pdf or Facsimile Sign. In order to expedite the transaction contemplated
herein, signatures sent by facsimile or by .pdf via e-mail may be used in place of original
signatures on this Agreement or any other document or agreement in this transaction, other
than those to be recorded in the public records. Seller and Buyer intend to be bound by the
signatures on each .pdf document, are aware that the other party will rely on the .pdf
signatures, and hereby waive any defenses to the enforcement of the terms of this
Agreement or any other such document based on the form of signature.
18.10 1031 Trade by Bum Seller acknowledges that Buyer may conduct an IRC Section
1031 Tax -Deferred Exchange and that all or a portion of Buyer's funds will be paid by a
Qualified Intermediary to facilitate such exchange. However, any warranties that may be
expressed in this Agreement shall remain and be enforceable between the parties executing
this document. Seller agrees to cooperate with Buyer and/or its assigns in a manner
necessary to enable Buyer to complete said exchange at no additional cost or liability. This
Agreement is part of an integrated, interdependent, mutual and reciprocal plan intended to
effectuate an exchange by Buyer of a like -kind real property pursuant to and in accordance
with the provisions of Section 1031 of the Internal Revenue Code. Seller shall execute and
provide to Buyer prior to closing, an acknowledgement, that Seller has received written
notice of the expected participation by the Qualified Intermediary.
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18.11 Prevailing Party Attorney Fees. In connection with any litigation (including, but
not limited to, any appellate proceedings) arising out of this Agreement, the prevailing
party shall be entitled to recover from the non -prevailing party all costs incurred by such
party, including, but not limited to, reasonable attorneys' fees and court costs. The terms
of this Section 17.6 shall survive Closing or any earlier termination of this Agreement
18.12 Entire Agreement. This Agreement embodies the entire agreement between the
parties and cannot be varied except by the written agreement of the parties. This
Agreement supersedes any prior oral or written agreements between Seller and Buyer
regarding the Property.
18.13 Authoriiy. Each individual signing this Agreement hereby represents and warrants
to the other party that he or she is fully authorized and empowered to sign this Agreement
on behalf of the party for whom he or she is signing, and that this Agreement shall be fully
binding on such party.
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Seller and Buyer have executed this Agreement as of the Effective Date.
BUYER:
4 *%C-aHoldings C
a, President/Chief Manager
Date: AmXZOZ
SELLER:
City Of Lakeville, Minnesota
Charlene Friedges,
Date:
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EXHIBIT A
Legal description of Seller Property
Parcel l:
Lot 1, Block 1 Lakeville Elementary 2nd Addition, Dakota County, Minnesota, according to the
recorded plat thereof;
Parcel 2:
Outlot G, Kenwood Trail Business Park
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