HomeMy WebLinkAbout2014 10-14 EDAP Special EmergencyEDA EMERGENCY SPECIAL MEETING
City of Brooklyn Center
October 14, 2014 AGENDA
Call to Order
—The EDA requests that attendees turn off cell phones and pagers during the meeting. A
copy of the full City Council packet, including EDA (Economic Development Authority),
is available to the public. The packet ring binder is located at the front of the Council
Chambers by the Secretary.
2.Roll Call
3.Approval of Agenda
4.Commission Consideration Items
a. Purchase Agreement between Economic Development Authority and U.S. Bank
National Association for Real Property Located at 5939 John Martin Drive,
Brooklyn Center
Requested Commission Action:
—Motion to approve and authorize execution of purchase agreement.
5.Adjournment
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made and entered into as of this10th day of October, 2014 (the "Effective Date") between, U.S. Bank National
Association ("Seller"), and Economic Development Authority of Brooklyn Center
Minnesota, ("Buyer").
In consideration of the covenants and agreements contained herein, the parties agree as
follows:
1. PREMISES. Subject to compliance with the terms and conditions of this Agreement,
Seller shall sell to Buyer and Buyer shall purchase from Seller, the following (collectively,
the "Premises"):
A.The real property located 5939 John Martin Drive Brooklyn Center, County
of Hennepin, State of Minnesota, comprising PID # 02-118-21-21-0014,
legally described in EXHIBIT A attached hereto and depicted on EXHIBIT A-
1 attached hereto, together with all easements, tenements, hereditaments, and
appurtenances belonging thereto (the "Land"); and
B.All buildings, structures and other improvements erected or placed on the land
(the "Improvements").
C. The forklift currently on the premises.
2. PURCHASE PRICE. The purchase price shall be $475,000.00 Buyer will pay
upon the following terms:
A.$10,000.00 Earnest money, the Earnest Money shall be placed and held by
Escrow Agent in its commercial interest bearing account in accordance with the
terms of this Agreement and shall be credited against the Purchase Price in
favor of Buyer at closing. Any and all interest accruing on the Earnest Money
pursuant to this Agreement shall be paid to Buyer and shall accrue solely for
Buyer's benefit. If Buyer provides Seller with written notice of Buyer's waiver
or satisfaction of all the conditions to closing set forth in Section 5 of this
Agreement, then the Earnest Money shall be deemed non-refundable to Buyer,
except as otherwise provided in Sections 3.1), 5, 6, 9, 16, 18, 19, 28.A or
elsewhere in this Agreement.
B.$465,000.00 Cash, the balance of the Purchase Price shall be paid (subject to
prorations, reductions and credits as provided below) by wire transfer, certified
check or cashier's check at the closing.
3. TITLE TO BE DELIVERED: COMMITMENT: SURVEY: TITLE
OBJECTIONS.
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A.Title To Be Delivered. At closing, Seller agrees to convey Marketable Fee
Simple Title to the Premises. For purposes of this Agreement, the term
"Marketable Fee Simple Title" means title to the Premises that, when acquired
by Buyer, will be insurable by the Title Company under its current form ALTA
Owner's Title Insurance Policy and is also free and clear of all liens,
encumbrances, easements, covenants, conditions restrictions adverse claims and
other matters, other than the Permitted Exceptions (defined on Exhibit B
attached hereto and made a part hereof).
B.Commitment. As soon hereafter as reasonably possible, Seller, at its sole cost
and expense, shall cause to be issued and delivered to Buyer, a Commitment
covering the Premises issued by the Title Company wherein the Title
Company agrees to issue to Buyer upon the recording of the Deed, (defined
herein) and the conveyance documents described herein, a current form of
ALTA Owner's Title Insurance Policy ("Commitment"), with standard
coverage, in the full amount of the purchase price. The Commitment shall be
accompanied by copies of all recorded documents affecting the Premises, and
shall include searches for real estate taxes and pending and levied special
assessments. Seller shall deliver a copy of the Survey (defined herein) to
Title Company so that the initial Commitment may be amended or
supplemented to contain any survey exceptions to title.
C.Survey. Buyer may obtain, at its sole cost and expense, a current ALTAIACSM
Land Title Survey ("Survey") of the Premises prepared by a duly licensed land
surveyor in the State of Minnesota.
D.Title Objections. Buyer shall have until twenty (20 days from the date it
receives the latter of the Commitment or Survey (or any update or supplement
thereto) to make its objections to matters disclosed in the Commitment or
Survey (or any update or supplement thereto) in writing to Seller. Any
exception disclosed in the Commitment or Survey (or any update or supplement
thereto) and not timely objected to by Buyer within the twenty (20) day period
shall be deemed a "Permitted Exception" hereunder. Seller shall have until
twenty (20) days after it receives such objections to have the same removed or
satisfied, using commercially reasonable efforts, or Title agree to insure over
said defect based on Seller's Letter of Undertaking. If Seller shall fail to have
such objections removed within that time, then Buyer may, as its sole remedy,
either (a) terminate this Agreement without any liability on its part and receive
the Earnest Money (together with any accrued interest) back, (b) waive such
objections in writing and proceed to closing with the understanding that such
uncured objections shall be deemed Permitted Exceptions at closing, or (c)
attempt to cure such uncured objections, in which event Buyer shall have an
additional twenty (20) days to attempt to cure such objections, and if Buyer is
not successful in curing such objections, Buyer shall then have the right to
either terminate this Agreement pursuant to clause (a) above, or waive such
objections pursuant to clause (b) above. Seller shall use reasonable efforts to
cure or have Title insure over (i) mortgage or deed of trust financing or similar
liens given for security or collateral purposes, (ii) state, federal or local tax liens
or liens for the nonpayment of special assessments, and (iii) any other judgment
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liens or non-consensual monetary liens (collectively, "Liens"), it being the
understanding and agreement that any such Liens will be satisfied out of Seller's
proceeds at closing, if not sooner paid.
4. REPRESENTATIONS AND WARRANTIES. As an inducement to Buyer to
enter into this Agreement, and as part of the consideration therefore, Seller represents and
warrants to and covenants with Buyer that:
A.Seller has Marketable Fee Simple Interest to the Premises.
B.Each of the persons executing this Agreement on behalf of Seller does hereby
represent and warrant that the execution and delivery of this Agreement by
Seller will not constitute a default under any indenture, agreement, contract,
mortgage or other instrument to which Seller is a party.
C.Seller warrants that there are no underground storage tanks on the Premises.
D.Seller has not used the Premises for storage or disposal of hazardous
substances and Seller has no actual knowledge that any other persons have so
used the Premises.
E.Seller has received no notice of any violation of any zoning, building, health
and safety, fire safety and environmental codes and laws from the City of
Brooklyn Center, or other local authority.
F.Seller has received no notice of a violation of any statutes, ordinances,
regulations, judicial decrees or orders, or the pendancy of any lawsuits,
administrative or arbitration hearings or governmental investigations or
proceedings affecting the Premises.
G.To the Seller's knowledge, there are no environmental proceedings,
applications, petitions, resolutions, or other matters pending before any
governmental agency, which would affect the Premises in any manner.
H.To Seller's knowledge there are no environmental proceedings, applications,
petitions, court pleadings, resolutions, investigations, by public or private
agencies, or other matters pending which could prohibit, impede, delay, or
adversely, affect the use of the Premises.
I.The Premises will, as of the date of closing, be free and clear of all liens,
security interests, encumbrances, leases or other restrictions or objections to
title other than the Permitted Exceptions.
J.The Premises is not within a flood zone.
K.The buildings are entirely within the boundary lines of the Premises.
L.Seller is not a "foreign person", "foreign partnership", "foreign trust", or
"foreign estate" as defined in Section 1445 of the Internal Revenue Code.
M.The sale of the Premises is not subject to any withholding requirements
imposed by the Internal Revenue Code, including, without limitation, Section
1445(F)(3).
N.To the best of Seller's knowledge, the buildings, structures, and improvements
included within the Premises are structurally sound and in good repair and
condition and all mechanical, electrical, HVAC, sewer, water and plumbing
systems are in proper working order.
0. The Premises is served by city water and city sewer. Gas, electric, and
telephone service, lines and systems (collectively, "Utilities") are or will be
available and installed to the property line of the Premises through public right
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of ways, public utility easements or valid private, perpetual, appurtenant,
irrevocable easements assignable to Buyer, on Or before closing at Seller's
sole expense.
P. There are no management, maintenance or service contracts, leases, licenses,
purchase agreements, purchase options, rights of first refusal, or other
unrecorded agreements affecting the Premises that will survive closing. Seller
agrees not to enter into any new, or modify any existing, written or oral service
contracts, leases, licenses or other recorded or unrecorded agreements affecting
the Premises hereafter without Buyer's prior written consent which may be
withheld in Buyer's reasonable discretion.
The representations and warranties set forth in this Section .4 shall be continuing and shall
be true and correct on and as of the closing date with the same force and effect as if made at
that time and all such representations, warranties and covenants shall survive closing for a
period of six (6) months and shall not be affected by any investigation, verification or
approval by any party. hereto or by anyone on behalf of any party hereto and shall not
merge into Seller's deed being delivered at closing. Seller agrees to indemnify and hold
Buyer harmless from and against and to reimburse Buyer with respect to any and all
claims, demands, causes of action, loss, damage, liabilities, and costs (including attorney's
fees and court costs) asserted against or incurred by Buyer by reason of or arising out of the
breach of any representation, warranty or covenant asset forth in this Section 4 for a period
of six (6) months after closing.
5.BUYER'S CONTINGENCIES. Unless waived by Buyer in writing, Buyers
obligation to purchase the Premises shall be subject to Buyer being able to satisfy the
following contingencies on or before closing. The sufficiency of the contingencies will be
determined by Buyer, in Buyer's sole discretion. If any of these conditions is not
satisfied by the date herein, Buyer, has the option to terminate this Agreement by giving
written notice of termination to Seller by 5:00 p.m. on the date thereof, time being of the
essence, in which case Buyer and Seller must sign a Cancellation of Purchase Agreement
and all earnest money will be returned to the Buyer within five (5) business days. Buyer
may waive any condition in Buyer's sole and absolute discretion. The failure of Buyer to
terminate the Agreement by the. date provided in each of the following contingencies
shall be a waiver of the condition:
A. The ability of Seller to convey marketable fee title to the Premises, free and
clear of any and all liens.
B Buyer shall review all the documentation required from the Seller as detailed in
Paragraph 14 within thirty (30) days after actual receipt of requested
materials.
6.PERMITTED. ACCESS AND INSPECTION. Buyer's performance of this
Agreement is expressly conditioned upon Buyer's inspection and approval of the
Piemises,, which inspection shall be made within 30 days after the "Effective" Date.
During the term of such inspection, Buyer and its authorized representatives shall be
permitted access to the Premises at reasonable times for the purposes of architectural
inspection and design studies, and such soil borings and environmental assessment as are
deemed necessary by Buyer. Buyer agrees to indemnify and defend Seller from, and to
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• •' :."''. hold Seller harmless against, any and all claims, causes of action or expenses, .including
attorney's fee, relating to or arising from Buyer's presence on the Premises prior to the
• Closing Date. Buyer agrees to repair any damage to the Premises caused by such
• inspections and to return the Premises to substantially the same condition -as existed prior
• 'to Buyer's inspection. If said inspection is, in Buyer's sole discretion, unsatisfactory to
" •• 'Buyer; Buyer shall notify. Seller 'of the same in writing priOr to five (5) d qys from date
•.' thereof and this Agreement 'shall be null and void 'and. all Earnest Money shall be
refunded to Buyer'within five (5) business days of such notice. Failure of the Buyer to
- provide this written'ñotice within the prescribed time shall be a waiver'of this condition.
- 7. •. REAL ESTATE FEES. Seller agrees to pay real estate commissions, at closing,
in the amount of six percent (6%) of the purchase price to Prethier Commercial- Properties, Inc.
S. 'DUAL AGENCY. PLEASE CHECK ONE OF THE,FOLLOW1NG SELECTIONS:
Dual Agency representation DOES NOT apply in this transaction.
Dual Agency representation DOES apply in this transaction
Broker represents both the Seller(s) and the Buyer(s) of the' Premises involved in this
transaction, which creates a dual agency. This means that 'Broker and its salespersons
owe fiduciary duties to both Seller(s) and Buyer(s). Because the parties may have
conflicting interests, Broker and its salespersons are prohibited from advocating- exclusively for either party. Broker cannot act as a dual agent in this transaction
without the 'consent 'of both Seller(s) and 'Buyer(s). Seller(s) and Buyer(s)acknowledge that:
(1)confidential information communicated to Broker which regards price, termsor motivation to buy' or sell will remain, confidential unless Seller(s) or
Buyer(s) instructs Broker, in writing, to, disclose this information. Otherinformation will be shared;
(2)Broker and its salespersons will not represent the interest 'of either party to thedetriment of the other; and(3) within the' limits of dual agency, Broker and its salespersons will work
diligently to facilitate the mechanics of the sale. •
With the knowledge and understanding of the explanation above, Seller(s) and
Buyer(s) authorize and instruct Broker and its salespersons to act as dual agents in
this transaction.
(Seller) (Buyer)
(Seller) (Buyer)
(Date) (Date)
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9.HAZARDOUS WASTE AND TOXIC SUBSTANCES. Seller will provide copies
all information to Buyer, within 10 days, of any Phase I and(or .Phase.II or any other
Environmental tests that have been performed on the Premises within the last twenty four
(24) months of the Effective Date. -
The Buyer, at its' own expense, may perform additional environmental testing to confirm '.
that the Premises are free and clear of any hazardous wastes or toxic substances. If such
tests determine that said Premises are contaminated and Seller does not correct said
contamination, this Agreement shall be voidable, at Buyer's option, by written notice by
Buyer to Seller of 'same prior to the Closing Date and all earnest money 'refunded to the
Buyer and Buyer shall have no further recourse against Seller.
10.LIKE KIND EXCHANGE. Buyer acknowledges that Seller may elect to
structure the sale of the Premises as part of a tax deferred exchange under Section 1031
of the Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder. Buyer further acknowledges and agrees that Seller may assign all of Seller's
rights and obligations hereunder to an exchange intermediary; provided, such assignment
shall not be deemed a release of Seller from any obligations hereunder. Buyer agrees to
cooperate with Seller in response to Seller's reasonable requirements in connection with
such exchange; provided that Buyer shall not be required to incur-, additional cost or
liability, in connection therewith.
11.REPRESENTATIONS OF BUYER. The party signing this Agreement on
behalf of Buyer, hereby represent and warrant to Seller that such persons have all
authority to sign this Agreement on behalf of Buyer.
12.REPRESENTATIONS OF SELLER. The party signing this Agreement on
behalf of Seller, hereby represent and warrant to Buyer that such persons have all
authority to sign this Agreement on behalf of Seller.
13.PERSONAL PROPERTY. Included in this sale is all of the personal property
currently located on the premises including hood, coolers, freezers and racking.
14.DOCUMENTATION TO BUYER. Within ten (10) days after the Effective
Date, Seller shall deliver to Buyer, at no cost to Buyer, complete and accurate copies of
the following:
A.A copy of the current property tax statement year 2014.
B.A true, correct and complete copy of any and all leases and rental agreements,
with current occupants, including security deposits on file. Seller warrants that
such Leases are in full force and effect and neither Landlord nor Tenant are in
default under such Lease.
C.A true, correct and complete copy of all contracts or services performed at said
Premises over the previous twelve (12) month time period. This shall include, but
not be limited to the following: snow removal, lawn care, trash removal, roof,
furnace repair service.
D.A true, correct and complete copy of any and all leases, rental agreements or
maintenance contracts with all vendors serving the Premises.
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15.SECURITY DEPOSITS. This paragraph is intentionally omitted.
16.LEAD AND ASBESTOS DISCLOSURE. A risk assessment or inspection for
possible lead-based paint hazards and presence of Asbestos may be. performed at Buyers
expense. Buyers will have 14 days after the Effective. Date to schedule a site inspection
for the presence of these substances. Any and all inspections will be done at the expense
of the Buyers. If Buyers determine that the Premises does not meet Buyer's approval, for
any reason, then Buyer may void this Agreement and if voided, all earnest money shall
be returned to the Buyer.
17.SELLER'S DUTY OF MAINTENANCE AND REPAIR. Between the date
hereof and the date of closing, except for Buyer's indemnification obligations set forth in
Section 6, Seller shall have the full responsibility and the entire liability for any and all
damages or injury of any kind whatsoever to the Premises, the Improvements thereon, and
all persons, whether employees or otherwise, and all property from and connected to the
Premises. Seller agrees to keep the Premises continually insured during the term of this
Agreement under a policies of (i) commercial general liability insurance with policy limits
of not less than $1,000,000 per incident, and (ii) fire, hazard and all risk property insurance
in amount equal to one hundred percent (100%) of the replacement value of the
Improvements. Until the closing, Seller shall have the full responsibility for the continued
operation, maintenance and repair of the Premises, normal wear and tear excluded.
18.CONDEMNATION. If, prior to the closing, the Premises shall be the subject of
an action in eminent domain or a proposed taking by a governmental authority, whether
temporary or permanent, Buyer, at its sole discretion, shall have the right to terminate this
Agreement upon written notice to Seller without liability on its part by so notifying Seller
and the Earnest Money (with ant accrued interest) shall be refunded to Buyer. If Buyer
does not exercise its right of termination, (i) any and all proceeds arising out of any such
eminent domain or taking shall be held in trust by Seller for the benefit of Buyer and paid
to Buyer at closing; and (ii) the "Premises" shall thereafter be defined to mean the Premises
less the portion taken by eminent domain or condemnation. . In no event shall the Purchase
Price be increased by the amount of any such proceeds.
19.CASUALTY. If, prior to the closing, the Premises or the Improvements are
materially damaged or destroyed, Buyer, at its sole discretion, shall have the right to
terminate this Agreement upon written notice to Seller without liability on its part by so
notifying Seller and the Earnest Money (with any accrued interest) shall be refunded to
Buyer. If the Premises or Improvements are not materially damaged or destroyed or Buyer
does not exercise its right of termination, Seller shall proceed forthwith to repair the
damage to the Premises and Improvements and any and all proceeds arising out of such
damage or destruction, if the same be insured, shall be held in trust by Seller for the benefit
of such repair. In no event shall the Purchase Price be increased by the amount of any such
proceeds. The words "materially damaged or destroyed" for the purposes of this Section
19 shall mean the Premises incurs damage in excess of $50,000.00 and saiddamage cannot
be repaired on or prior to closing.
20.AS IS PURCHASE. Buyer acknowledges that the Premises being purchased by
Buyer, together with the other improvements, fixtures, appliances and other items of
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Personal Property that will remain with the Premises are not new, and are being
purchased "AS IS". Buyer has the right and duty to inspect the Premises and Personal
Property being purchased with the Premises, or have them inspected by a person of
Buyer's choice, at Buyer's expense. It is understood by the Buyer that the Buyer accepts
the Premises and Personal Property "AS IS" without any Representations or Warranties
by the Seller except as expressly stated in this Agreement. Except as expressly provided
in this Agreement, the Seller shall have no further responsibility or liability with respect
to the condition of the Premises or Personal Property being sold with the Premises. This
provision shall survive the delivery of the General Warranty Deed at Closing.
21.DISCLOSURE. This paragraph is intentionally omitted.
22.INVENTORY. This paragraph is intentionally omitted.
23.PATRIOT ACL Buyer is not named, and is not acting, directly or indirectly, for
or on behalf of any person, group, entity, or nation named by the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub L 107-56, 115 Stat 272 ("USA Patriot Act"),
Executive Order # 13224 or any other Executive Order or the United States Treasury
Department as a terrorist, "Specially Designated Nation and Blocked Person," or other
banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or
regulation that is enforced or administered by the Office of Foreign Assets Control.
Buyer is not engaged in this transaction, directly or indirectly on behalf of, or instigating
or facilitating this transaction, directly or indirectly on behalf of, any such person, group
entity, or nation.
Buyer's full, legal, and complete name(s) is/are Economic Development Authority of
Brooklyn Center, Minnesota. Buyer is not known as, and does not employ any other
names or aliases. Buyer shall deliver to Seller such proof of identity that Seller may
reasonably require.
24.CLOSING DATE. Subject to the fulfillment or waiver of the conditions hereof,
and provided that all of the covenants, representations and warranties of Seller are true
and correct on the closing date as though made on such date, the closing of the purchase
and sale shall take place on or before November 19thg 2014. The closing shall take
place at the offices of Title Company or at such other place as Seller and Buyer may
mutually determine. Actual possession of the Premises shall be delivered to Buyer on the
Closing Date.
25. SELLERS OBLIGATION AT CLOSING. At or prior to the Closing date,
Seller shall:
A. Deliver to Buyer, Seller's duly recordable General Warranty Deed (the "Deed") to
the Premises (in a form reasonably satisfactory 1 to Buyer) conveying to Buyer
Marketable Fee Simple Title to the Premises and all rights appurtenant thereto,
subject only to the Permitted Exceptions.
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B.Cause to be furnished and delivered to Buyer the ALTA (Form 6/17/06) Owner's
Title Insurance Policy in conformity with the requirements of this Agreement, or a
"marked-up" Commitment in form acceptable to Buyer.
C.Deliver to Buyer, Title Company's standard affidavit of Seller, confirming that
Seller is not a "foreign corporation" within the meaning of Section 1445 of the
Internal Revenue Code.
D.Deliver to Buyer, Title Company's standard affidavit of Seller, in form and content
sufficient to allow Title Company to delete the standard exceptions contained in
Buyêfs Owners Title Insurance Policy relative to (i) parties in possession, (ii) liens
for labor, materials, or services, (iii) unrecorded easements or other instruments and
(iv) the gap between date of title commitment and the recording date of the Deed.
E.Deliver to Buyer, a certificate confirming that the representations and warranties set
forth in Section 4 of this Agreement are true and correct as of the Closing Date as
though made as of such date.
F.Deliver to Buyer, such other documents as may be reasonably required by this
Agreement (including, without limitation, authorizing resolutions of Seller), all in a
form reasonably satisfactory to Buyer, Seller and Title Company.
G.An assignment, in a form and substance acceptable to Buyer, of all assignable
warranties, guarantees, permits, licenses, certificates and franchises applicable or
relating to the Premises.
26. CLOSING COSTS. The following costs and expenses shall be paid as follows in
connection with the closing:
A. Seller shall pay:
The cost to prepare and deliver to Buyer the Commitment
(including, without limitation, the cost of any title search and exam
by Title Company); all fees to record all of the documents necessary
to permit Seller to convey Marketable Fee Simple Title to the
Premises to Buyer (other than the fee to record the Deed); the cost of
any endorsements necessary to convey Marketable Fee Simple Title
to Buyer; and one-half (1/2) of the closing fee charged by Title
Company.
2.Any state, county or municipal deed tax, excise tax or transfer fee
imposed on the conveyance, and any fees and costs incurred by
Seller or necessary to subdivide the Premises from other real
property into a separate tax parcel.
3.Any deferred or delinquent real estate taxes or utilities and Seller's
pro-rata share of those costs and expenses set forth in Section 27.
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4 . All special assessments existing through and including the Closing
Date, whether levied, pending, deferred or assessed, including
without limitation, the unpaid balance of special assessments and/or
installments of special assessments certified for payment to the real
estate taxes, except all special assessments that become levied or
pending after the Closing Date.
5.The brokerage fee of Broker pursuant to Section 7.
6.Attorneys' fees and costs of Seller's attorneys.
B. Buyer shall pay:
The documentary fee necessary to record the Deed.
2; The premium for the Owners Title Insurance' Policy, any Lenders
policy of title insurance.
3.One-half (1/2) of the closing fee. and all of the escrow fee charged
by Title Company.
4.All special assessments levied or pending after the Closing Date.
5.Attorneys' fees and costs of Buyer's attorneys.
6.Balance of the purchase price.
C. The terms of this Section 26 shall survive the closing of the transaction
contemplated herein.
27. PRORATIONS. The following prorations shall be made as of the Closing Date:
A. Real estate taxes (excluding any outstanding special assessments and/or
installments of special assessments certified to the real estate taxes for payment
Seller is obligated to pay pursuant to Section 26 hereof) allocable to the
Premises that are due and payable in the year of closing shall be prorated
between Seller and Buyer to the Closing Date. Seller shall pay all such real
estate taxes due and payable in years prior to the year of closing. Buyer shall
assume responsibility for the payment of all such taxes due and payable in years
subsequent to the year of closing. If, as of the Closing Date, the Premises is not
assessed for purposes of property taxation separately from all other real
property, then the real estate taxes for the total tax parcel shall be paid in full at
closing, and the amount of taxes allocable to the Premises shall be determined
based upon the ratio that the square footage of the Premises bears to the square
footage of all the real property within the total tax parcel.
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B. The terms of this Section 27 shall survive the closing of the transactioncontemplated herein.
28. REMEDIES.
A.Seller Default. In the event Seller defaults under this Agreement and such
default is not cured within 15 days after the date Buyer provides Seller written
notice specifying such default, Buyer, as its sole and exclusive remedy, may
either (a) seek specific performance of this Agreement provided such action is
commenced within sixty (60) days after Seller's 15-day cure period, or (b)
terminate this Agreement and receive a refund of all Earnest Money and any
accrued interest thereon. In no event shall Seller be liable to Buyer for damages
under this Agreement, or liable to Buyer for other costs and expenses incurred
by Buyer in its investigation of the Premises.
B.Buyer Default. If Buyer defaults in the performance of this Agreement, Seller's
sole and exclusive, remedy shall be to cancel this Agreement by delivering
written notice of such default to Buyer ("Seller's Default Notice"), in which
event Buyer shall have the opportunity to cure such default within thirty (30)
days after receipt of Seller's Default Notice, and if Buyer falls to timely cure
such default after receipt of Seller's Default Notice, then this Agreement shall
be deemed canceled without further action between the parties and the Escrow
Agent shall deliver all of the Earnest Money to Seller as liquidated damages, it
being the understanding and agreement of the parties that it would be
impractical or extremely difficult to determine the actual damages to Seller in
the event of. Buyer's default, and that the Earnest Money is a reasonable
estimate of the damages which Seller would incur as a result of Buyer's default
hereunder.
29. ESCROW. . Escrow Agent is authorized and agrees by acceptance thereof to
promptly deposit the Earnest Money as provided herein and to hold same in escrow and to
disburse the same in accordance with the terms and conditions of this Agreement. The sole
duties of Escrow Agent regarding the Earnest Money shall be those described herein, and
Escrow Agent shall be under no obligation to determine whether the other parties hereto
are complying with any requirements of law or the terms and conditions of any other
agreements among said parties. Escrow Agent may conclusively rely upon and shall be
protected in acting upon any written notice, consent, order or other document believed by it
to be genuine and to have, been signed or presented by the proper party or parties to this
Agreement. Escrow Agent shall have no duty or liability to verify any such written notice,
consent, order or other document, and its sole responsibility shall be to act as expressly set
forth in this Agreement. Escrow Agent shall be under no obligation to institute or defend
any action, suit or. proceeding in connection with this Agreement. If Buyer and Seller
execute any separate escrow instructions or an escrow agreement with Escrow Agent, then
in the event of a conflict between the terms of such escrow instructions or escrow
agreement and the terms of this Agreement, the terms of this Agreement shall control.
Escrow Agent shall also execute this Agreóment solely for the purpose of acknowledging
its agreement with and understanding of the terms of this Section 29 and the other
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provisions of this Agreement relative to receipt, escrow, investment and disbursement of
the Earnest Money. Failure of Escrow Agent to execute this Agreement shall not affect the
validity of this Agreement as between Seller and Buyer.
30.TIME FOR ACCEPTANCE. The Agreement, when duly executed by all of the
parties hereto, shall be binding upon the parties hereto, their heirs, representatives,
successors and assigns. In the event this Agreement has not been duly executed by Seller
and delivered to Buyer or its agent on or before October 21, 2014 at 5:00 p.m. central
time, then the offer herein made by Buyer shall automatically and unconditionally
terminate and this Agreement shall be null and void, and Escrow Agent shall immediately
return to Buyer the Earnest Money.
31.MISCELLANEOUS. The following general provisions govern the Agreement:
A.No Waivers. The waiver by either party hereto of any condition or the breach
of any term, covenant or condition herein contained shall not be deemed to be a
waiver of any other condition or of any subsequent breach of the same or of any
other term, covenant or condition herein contained. Buyer, in its sole discretion
may waive any right conferred upon Buyer by this Agreement; provided that
such waiver shall only be made by Buyer giving Seller written notice
specifically describing the right waived.
B.Time of Essence. Time is of the essence of this Agreement.
C.Governing Law. This Agreement is made and executed under and in all
respects to be governed and construed by the laws of the State of Minnesota and
the parties hereto hereby agree and consent and submit themselves to any court
of competent jurisdiction situated in the State of Minnesota.
D.Notices. All notices and demands given or required to be given by any party
hereto to any other party shall be deemed to have been properly given if and
when delivered in person, the next business day after being sent by reputable
overnight commercial courier (e.g. U.P.S. or Federal Express), sent by facsimile
(with verification of receipt) or three (3) business days after having been
deposited in any U.S. Postal Service and sent by registered or certified mail,
postage prepaid, addressed as follows (or sent to such other address as any party
shall specify to the other party pursuant to the provisions of this Section):
TO SELLER: TO BUYER:
Economic Development Authority of
Brooklyn Center, Minnesota
Attn Curt Boganey
Executive Director
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota 55430
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In the event either party delivers a notice by facsimile, as set forth above, such
party agrees to deposit the originals of the notice in a post office, branch post
office, or mail depository maintained by the U.S. Postal Service, postage
prepaid and addressed as set forth above. Such deposit in the U.S. Mail shall
not affect the deemed delivery of the notice by facsimile, provided that the
procedures set forth above are fully complied with.
Any party, by notice given as aforesaid, may change the address to which
subsequent notices are to be sent to such party.
E.Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of each of the parties hereto. This
Agreement may be assigned or transferred by Buyer at any time without
consent of Seller, including, without limitation, to a lender of Buyer, provided
the assignee agrees to be bound by the terms of this Agreement. Provided,
however, any such assignment of this Agreement shall not release Buyer from
liability under this Agreement.
F.Invalidity. If for any reason any term or provision of this Agreement shall be
declared void and unenforceable by any court of law or equity it shall only
affect such particular term or provision of this Agreement and the balance of
this Agreement shall remain in full force and effect and shall be binding upon
the parties hereto.
G.Complete Agreement. All understandings and agreements heretofore had
between the parties are merged into this Agreement which alone fully and
completely expresses their agreement. This Agreement may be changed- only in
writing signed by both of the parties hereto and shall apply to and bind the
successors and assigns of each of the parties hereto and shall not merge with the
deed delivered to Purchaser at closing.
H.Counterparts. This Agreement may be executed in one or more counterparts
each of which when so executed and delivered shall be an original, but together
shall constitute one and the same instrument.
I.Calculation of Time Periods. Unless otherwise specifically provided herein, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the State
of Minnesota, in which event the period shall run until the end of the next day
which is neither a Saturday, Sunday or legal holiday. The final day of such
period shall be deemed to end at 5:00 p.m.
J.Attorneys' Fees. If any dispute arises between the parties regarding this
Agreement or the subject matter thereof, the prevailing party in any court
action, administrative proceeding or alternative dispute resolution commenced
or maintained to resolve such dispute, shall be entitled to an award of
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reasonable attorneys' fees, disbursements and court costs in addition to any
other remedy to which the parties are entitled.
K.Survival. All of the warranties, covenants, and representations made herein by
either Seller or Buyer shall survive closing and the delivery of the Deed to
Buyer, or the earlier termination of this Agreement.
L.Confidentiality. During the executory period of this Agreement, Seller,
including its agents and brokers, agrees not to negotiate with any third parties
for the sale of the Premises and agrees to keep the existence and the terms of
this Agreement confidential, except as is necessary for Seller's broker to
assemble Purchase Agreements with adjoining land owners and not alter
broker's duties to those clients.
By the signatures below, both the Buyer and Seller agree to the above terms.
SELLER: BUYER:
Economic Development Authority of
Brooklyn Center, Minnesota
date: date:
Its: President
date: date:
Curt Boganey, Eecutive Director
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
Legal Description to match legal address 5939 John Martin Drive Brooklyn Center,
Minnesota. Hennepin County PID# 02-118-21-21-0014
NOTE: The precise legal description of the Land is to be confirmed by the Title Evidence. It is
the intent of the parties that the Land consists of the real property owned by Seller commonlyknown as 5939 John Martin Drive Brooklyn Center, Minnesota. In the event that the correct
description of the Land established in the Title Evidence should differ from the description of the
Land set forth above in this Exhibit A, the description set forth in the Title Evidence shall be
deemed to govern and replace the description set forth above.
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EXHIBIT A-I
DEPICTION OF PREMISES
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EXHIBIT B
Permitted Encumberances
1)Building and zoning laws, ordinances, state and federal regulations:
2)Restrictions relating to use or improvement of the Property without effective
forfeiture provision;
3)Reservation of any minerals or mineral rights to the State of Minnesota;
4)Utility and other easements of record which do not adversely interfere with
Buyer's intended use of the Property;
5) Any exception to title or survey waived or approved by Buyer in writing.
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