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HomeMy WebLinkAboutContract 1797PURCHASE AGREEMENT THIS AGREEMENT, made and entered into this day, 2004, by and between ("Seller") the Nath Property Corporation, L.P. and the City of Columbia Heights Economic Development Authority (EDA), a political subdivision of the State of Minnesota ("Buyer"). WITNESSETH: 1. Description of Land Sold. Seller, in consideration of the covenants and agreements of Buyer hereinafter contained, hereby sells and agrees to convey unto the Buyer, its successors and assigns, by warranty deed, accompanied by a Seller's affidavit, upon the prompt and full performance by the Buyer of its part of this Agreement, the real property, known as the Burger King Site, consisting of a parcel of property containing approximately 1.09 acres, and a building of approximately 2,581 square feet, and all furniture, fixtures, and equipment, located at 3939 Central Avenue NE, Columbia Heights, Minnesota and legally described in Exhibit A attached hereto (the "Property"); 2. Purchase Price. Buyer, in consideration of the covenants and agreements of Seller, hereby agrees to pay to Seller as and for the purchase price of the Property, Eight Hundred Thousand and no/Dollars ($800,000), subject to adjustment as hereinafter provided, in the manner and at the times following, to wit: $20,000.00 Earnest money, the receipt of which is hereby acknowledged by Seller, but which shall be applied to the purchase price hereunder and said $20,000.00 earnest money shall be non-refundable, all except in the event of termination of this Agreement by Buyer pursuant to paragraph(s) 7, 8, or 10 hereof; and $780,000.00 Cash or immediately available funds at Closing. 3. Deed. It is agreed that the Warranty Deed executed and delivered by Seller to Buyer at the Closing Date (accompanied by all customary affidavits and certificates) shall be subject only to the following exceptions: (a) Building, zoning and platting laws, ordinances and state and federal regulations; (b) Reservation of any minerals Minnesota; or mineral rights to the State of (c) Utility and road easements of record that do not interfere materially with the use or development of the Property by Buyer, as disclosed by visual inspection of the easement on the Survey; (d) The lien of current taxes not yet due and payable, if any; MTN-240090vl 0. CL205-24 (e) The lien of special assessments of record and all levied assessments; Said Deed shall be accompanied by all required well disclosures. 4. Taxes and Special Assessments. Seller shall pay all real estate taxes, interest, and penalties, and all installments of special assessments, relating to the Property due and payable in 2004 and the years prior thereto. Provided that the transaction contemplated by this Agreement shall close, Buyer warrants that the Property will be exempt from property taxes upon purchase pursuant to Minn. Stat. §272.02, subd, 39. Seller shall pay all special assessments pending or levied as of the Closing Date. Buyer shall be responsible for all other assessments, levied after closing. 5. Buyer's Undertakings. Buyer represents that it will undertake the following activities at its option, and expense: (a) Complete a current Phase I Environmental report prepared in accordance with ASTM standards E-1527-000 covering the Property within sixty (60) days after acceptance of this Agre. ement by Buyer and Seller. Seller will provide soil tests, if available. (b) Complete the process of securing quotations of the cost of demolition of the building on the Property by firms or entities qualified to perform such services, within sixty (60) days after acceptance of this Agreement by Buyer and Seller. (c) Complete the process of securing an asbestos removal estimate for the building on the Property within sixty (60) days after acceptance of this Agreement by Buyer and Seller. (d) Complete the process of securing an engineering inspection and report which documents to Buyer's satisfaction that the structures on the Property are structurally substandard within the meaning of Minn. Stat. § 469.174, subd. 10, within sixty (60) days after acceptance of this Agreement by Seller and Buyer. 6, Preliminary Ins[~ection bv Buyer. Upon prior notice and coordination with Seller, Buyer shall have the right, prior to the Closing Date, to enter upon the Property for the purpose of taking soil tests, borings, making surveys and maps and performing other preliminary investigative work, provided, however, that Buyer shall indemnify and hold harmless Seller from any mechanic's liens, claims, injuries or other damages arising out of such preliminary development work by Buyer, including, but not limited to, any environmental liability resulting from Buyer's activities on the Property. Prior to the Closing Date, Buyer shall not construct or cause the construction of any improvements on the Property. MTN-240090v 10. CL205-24 7. Buyer's Conditions Precedent to Closing. The obligation of Buyer to close on the purchase of the Property is subject to and contingent upon the satisfaction prior to the Closing of the following conditions, any of which may be waived in whole or in part by Buyer on or prior to the Closing Date: (a) Buyer, at its option, shall have obtained soil tests, percolation tests, and similar engineering reports that confirm to the Buyer the satisfactory condition of the soils; (b) Buyer shall have obtained assurances satisfactory to Buyer that sewer and water utility services are available to the Property, including necessary easements to provide sewer and water trunk mains to the Property; (c) Buyer shall have obtained at its expense environmental inspection reports and other items described in paragraph 5 of this Agreement, disclosing the satisfactory condition of the Property to Buyer. (d) Buyer shall have obtained financing for the purchase of the Property from the City of Columbia Heights under terms mutually agreeable to Buyer and the City. In the event that Buyer is unable to satisfy any of the foregoing conditions by the Closing Date, or any of the respective reports or tests permitted by paragraphs 5, 6 or 7 of this Agreement disclose a condition or conditions of the Property unsatisfactory to Buyer, Buyer may, by written notice to Seller, either waive such conditions, or at Buyer's option, terminate this Purchase Agreement, whereupon Seller shall refund all earnest money paid by Buyer and neither party shall have any further liability hereunder, provided that Buyer shall deliver an executed quit claim deed to the Property to Seller and further provided that Buyer shall remain liable for matters arising out of Buyer's activities pursuant to paragraph 6 above. Buyer agrees to diligently proceed to satisfy the conditions of this paragraph. 8. Examination of Title. Seller shall, within fifteen (15) days after the date hereof, furnish Buyer a commitment for an Owner's Policy of Title Insurance ("Commitment") covering the Property, which shall include proper searches covering bankruptcies, state and federal judgments and liens. Buyer shall be allowed thirty (30) I~;;~t~.m~;~lJ~/I. t. Sl I. I1~;~ k./UIIIIIIIl, lll~;:;lll. I~/I ~;~AI2;IIIIIII~I, IglI I, Ilglg~..~l all~.~ i. iIg iiir...tl/lll~ all,~, objections thereto, said objections to be made in writing or deemed to be waived. The Seller shall use its best efforts to make such title marketable within six (6) months from its receipt of Buyer's written objection. Marketability of title shall be determined according to Minnesota statues, Minnesota case law decisions, and the standards of Minnesota title standards. Pending correction of title, the payments hereunder required shall be postponed, but upon correction of title and within ten (10) days after written notice, Buyer shall perform as provided in this Agreement. If said title is not marketable and is not made so within six (6) months from the date of written objections thereto as above provided, Buyer may either MTN-240090v10. CL205-24 (i) terminate this Purchase Agreement by giving written notice by registered mail to Seller, in which event this Purchase Agreement shall become null and void and neither party shall be liable for damages hereunder to the other party and the earnest money shall be returned to Buyer following expiration of 120 days after the last work was performed on the'Property; or (ii) elect to accept title in its unmarketable condition by giving written notice by registered mail to Seller, in which event the warranty deed to be delivered at Closing Date shall except such objections. 9. ~. Buyer may at its option procure, at its sole expense, an ALTA survey of the Property prepared by a registered land surveyor (the "Survey"). 10. Default. If Seller, through no fault of Buyer, defaults in its obligations hereunder in any manner, Buyer may, by notice upon Seller, (i) terminate this Purchase Agreement, in which event all earnest money paid hereunder shall immediately be delivered to Buyer, or (ii) avail itself of an action for specific performance. If Buyer shall default in the performance of any of its obligations hereunder, then Seller shall be entitled to terminate this Agreement upon 30 days written notice to Buyer, pursuant to Minn. Stat. §559.21 and, upon such termination, Seller shall retain all earnest money theretofore paid hereunder, as and for its liquidated damages and sole remedy for said breach, and not as a penalty or forfeiture, actual damages being difficult or impossible to measure, and no party hereto shall have any further claim against the other hereunder. In such event, Buyer shall provide Seller with its quitclaim deed. Nothing herein shall relieve Buyer of any obligation to indemnify or hold Seller harmless as stated herein, including obligations of Buyer arising out of unsatisfied mechanic's liens which Seller would have to pay because of work performed on the Property at the request of Buyer. 11. Representations and Warranties by Seller. Seller represents and warrants to Buyer that: (a) There is no action, litigation, investigation, condemnation or proceeding of any kind pending against Seller or the Property which could adversely affect the Property, any portion thereof or title thereto. Seller shall give Buyer prompt written notice if any such action, litigation, condemnation or JJIL. JL.,Gt::;UIII~I I~ LIII~;;C;ILI;~II~::~U or k.~k./llllll~Z;llk.~i:~t,.l J,.,/I It~,)l Lk./ LII~;~ ~,,,Ik./OII I~:~ (b) To the best of Seller's knowledge, the Property has not been used for the generation, transportation, storage, treatment, or disposal of any hazardous waste, hazardous substance, pollutant, or contaminant, including petroleum, as defined under federal, state or local law, except farm fertilizer used in the ordinary course of farming. MTN-240090v 10, CL205-24 (c) If there is a well located on the Property, Seller will provide at Closing a well disclosure. There are no underground storage tanks located on the Property. To the best of Seller's knowledge, and except as disclosed in Seller's Environmental Documents (a list of which are attached hereto as Exhibit B), there is no septic system located on the Property. (d) To the best of Seller's knowledge, there has been no dumping or placement or burying of trash or construction debris in or on the Property. Seller hereby agrees that each of the foregoing representations and warranties shall survive closing hereunder and that the breach of any thereof shall constitute a default, whether said breach occurs prior to or after Closing, entitling Buyer to exercise any remedy provided to Buyer in this Agreement in the event of a default by Seller or any other remedy allowed by law. 12. ~. The Closing Date of this transaction shall take place no later than ninety (90) days after acceptance of this Agreement by Seller and Buyer. The Closing Date may be accelerated by mutual agreement of the parties if all contingencies contained herein are satisfied prior to conclusion of the 90 day period. At closing, Seller and Buyer shall deliver to one another the instruments specified herein. Subject to the provisions of Paragraph 6 hereof, possession of the Property shall be delivered to Buyer on the Closing Date. All expenses for the operation of the Property shall be prorated between Buyer and Seller as of the Closing Date. Seller shall pay for the preparation of the Commitment and any state deed tax payable in connection with the recording of the deed. Buyer shall pay the premium for a title insurance policy if Buyer elects to obtain such policy, and for the cost to record the deed. Each party will pay its own attorneys' fees and shall split equally any closing fee charged by a title insurance company to close this transaction. 13. Notices. All notices provided herein shall be given in person or be sent by United States mail, either certified or registered, postage prepaid, to Seller at 900 East 79th Street, Bloomington, MN 55420 and to Buyer at 590 40th Avenue NE, Columbia Heights, Minnesota 55421-3878. If notice is given by registered or certified mail, deposit in the United States mail of said notice on or before the date such notice is to be given shall be deemed timely and acceptable. 14 Broker, OrdUrdf ~II~U Duyul lupI LU each "--' ~ . usu, it ,,,m ,~,t,,u, h~ u,,u~u~u ~ real estate broker. Buyer shall not be responsible for the brokerage fee or commission due any real estate broker retained by Seller. Seller shall defend, indemnify and hold harmless the Buyer from any claims of any such broker. 15. ~. In the event that during the pendency of this Purchase Agreement the Property or any portion thereof is condemned or taken by a public authority, at Closing, Seller shall assign or deliver to Buyer all proceeds or compensation for such condemnation or taking (and all rights thereto) and Seller shall convey the Property to Buyer subject to such condemnation or taking without any reduction in the Purchase Price. MTN-240090vI0. CL205-24 16. Waiver of Relocation Benefits. Seller represents that it has requested that the Property be acquired by Buyer, that Buyer has taken no prior action to acquire the Property, that Seller is willing and eager to sell the Property to Buyer, that it has voluntarily negotiated this Agreement with Buyer, that Seller has exercised all rights of due diligence with respect to eligibility for relocation benefits, and that therefore, Seller specifically waives any claim to relocation benefits otherwise permitted by state or federal law described in Minn. Stat. § 117.52. Seller further warrants that at or prior to the Closing Date, Seller shall deliver to Buyer a waiver of relocation benefits agreement meeting the requirements of Minn. Stat. § 117.521, subd. 1, in a form to be approved by Buyer in its sole discretion. Seller further warrants and agrees that if Seller is later adjudged eligible for such relocation benefits, the value of all such benefits is included in the Purchase Price as described in Paragraph 2 of this Agreement. 17. Miscellaneous. The terms, covenants, indemnities and conditions of this Purchase Agreement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto, and shall survive the Closing Date. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first above written. SELLER: Nath ~ Date BUYER: City of Columbia Heights Economic Develo~en, t. Authority.¢ By g~.~.~../#~~4 ~, Don MurZyn/~' ¢' Its President Walt Fehst Its Executive Director ~/TDate MTN-240090vl0 CL205-24 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY (on following pages) MTN-240090v 10, CL205-24