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HomeMy WebLinkAbout03-13-2018 Worksession Packet T_ . City of Oak Park Heights Worksession Date: Tuesday, March 13, 2018 Time: 5:30 p.m. Location: Oak Park Heights City Hall 1. Call to Order 2. Madison Hospitality Group—Holiday Inn Express—Timeline Extension 3. Discuss Possible Bridge Photo for Council Chambers 4. Discuss Possible Plan with Just Transition Fund—Xcel Energy King Plant Site 5. Adjourn Page 1 of 24 THIS PAGE INTENTIONALLY LEFT BLANK Page 2 of 24 .4 p A i_ City of Oak Park Heights 14168 Oak Park Blvd. N•Box 2007.Oak Park Heights,MN 55082•Phone(651)439-4439•Fax(651)439-0574 3/9/18 MEMO TO: Mayor and City uncil FROM: Eric Johnson,C' Admi ' o RE: Madison Hospi lity Group— ay Inn press—Timeline Extension Dear Mayor and Council: As I have noted to you, Madison Hospita 1 up is seeking further extensions to their Due Diligence Process(DDP) timelines moving the default date from 4/23/1 to a date of 9/15/2018.These dates stem from the Purchase agreement completed in August 2017 and which outlines the conveyance of the Property to MHG at a price of$875,000 with requirements that a hotel facility is constructed. Specifically,the agreement-being Section 4.2-outlines that the Buyer(MHG)has up to 90 days to perform their due diligence investigations on the site and apply for(and potentially secure) related City permits—such as variances or Conditional use permit,building permits,etc. While we understand that the Buyer did perform the expected site investigations-and may still be ongoing, they did not apply for City permits nor secure city review permits within that first 90-day timeline. The Buyer did seek two consecutive sixty-day extensions which were automatically granted with a payment of$10,000 each to the earnest money fund.The City now holds$70,000 in earnest money. As we have now reached the end of those two extensions and the Buyer has not applied for nor secured the necessary permits, etc. and would likely be in default and would lose $70,000 in earnest monies if they do not withdraw their proposal and void the Purchase Agreement Staff would expect the buyer to withdraw from the purchase agreement prior to being found in default so as to prevent the loss of such funds. However, the Buyer is seeking another extension to the 9115118 date with their position being that their respective studies and feasibilities are taking longer than anticipated, vet they still desire to generally move forward with being open for business in Fall 2019. Please see the enclosed letter from the Buyer's attorney outlining their timeline extension request The Council at this time has basically two options: 1. Provide an extension to the 9/15/18 and continue to work with the Buyer to complete the transaction as outlined in the Purchase Agreement. (The Council might desire to consider an addition cash security—and perhaps a portion would not be refundable or applicable to the purchase price. The Buyer is expected to submit a development application on 3/13/18.) 2. Inform the Buyer that the City will not grant an extension,thus the Buyer will likely withdraw from the proposal -prior to the April 23rd,2018 deadline. The Council has a scheduled Worksession for 5:30 pm on 3113/18 where the Buyer will be present to answer any questions as to their timeline and to hopefully represent their continued good-faith on the project.The Council would need to take a formal action to extend any dates. I would of course defer to Mark Vierling if I have mis-stated any elements herein. Page 3 of 24 JOHNSTON LAW OFFICE, P.A. EASTON 510 2201 Avenue East,Suite 101 Attorneys at Law P.O.Box 1218 Alexandria,Minnesota 56308 r** Scott T. Johnston* Tele hone: C'ax:320-762-9111 Kelly L. Jenzen E-Mail: iohnston-(et) _,iohnstonlawoff.corn Lesal Assistants: iemcn(a iohnstonlawoff.com Lori A.Aaberg Alice A.Bosek * AbISBA Board Certified Real Lindsey C.Bruzek Property Specialist Kimberly J.Pfeffer Brittany E.Uselman March 8,2018 _VIA CERTIFIED MAIL,RETURN RECEIPT REQUESTED AND VIA EMAIL: eaiohnson(a)citvofoaki)arkheights.com and MVierling(a),eckberglammers.com — CITY OF OAK PARK HEIGHTS ECKBERG&LAMMERS ATTN CITY ADMINISTRATOR ATTN MARK VIERLING ESQ 14168 OAK PARK BLVD 1809 NORTHWESTERN AVENUE P 0 BOX 2007 STILLWATER MN 55082 OAK PARK HEIGHTS MN 55082 RE: City of Oak Park Heights—Madison Hospitality Group, LLC Our File No. 17-290STJ Pursuant to Section 4.3 of the Purchase and Sale Agreement dated August 29, 2017 ("PSA"), Madison Hospitality Group, LLC ("Buyer")has exercised its right to extend the Due Diligence Period("DDP") for the second of its two (2) sixty(60)day extensions to April 18,2018. Buyer has paid$70,000 in Earnest Money thus far. Buyer's architectural and engineering firm has provided the following estimated time lines in connection with additional Due Diligence to be performed by Buyer: + March 13,2018—Development Application due to the City + April 12, 2018—Planning Commission Public Hearing + Apr l 23, 2018 —City Council Meeting + May 1, 2018 —Start Construction Drawings(10 weeks) + July 10,2018—Release Plans for Bidding and Permit Review • August 2, 2018—Bids Due If,however, City Council approval of all necessary land use permits is not finalized at the April 23 City Council meeting, it is probable that these time lines will be delayed. Drafting and finalization of the Developer's Agreement may further delay these estimated time lines. Buyer has already invested$70,000 in Earnest Money together with significant additional engineering and architectural fees regarding Buyer's preliminary Site Plan and the relocation of the sewer and water lines on the Property. But the additional fees to be incurred by Buyer in connection with the development application, construction drawings and bidding process promise to exceed the investment already made. Page 4 of 24 City of Oak Park Heights Eckberg& Lammers Page 2 March 8,2018 Based on the foregoing time lines, it is clear there will be no land use permits issued for this project by the end of the DDP on April 18. Buyer finds it necessary to ask that the DDP be extended to provide Buyer with the necessary time to complete the additional Due Diligence facets as outlined above. If this additional time cannot be granted by the City,it is unrealistic for Buyer to incur the additional expense and effort in pursuit of this project. The PSA provides that the Earnest Money paid remains refundable at this time. Buyer is at a crossroads in determining whether it should continue to invest in the Due Diligence process for this project. Consequently, Buyer respectfully requests that the DDP be extended to September 15,2018,without the payment of additional sums of Earnest Money. We look forward to hearing from you. Thank you. Sincerely, JOHNSTON LAW OFFICE, P.A. By o . ohnst e�Vl STJ cc: Madison Hospitality Group, LLC (via email) Page 5 of 24 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT is effective as of this —ZJ__ day of Au 2017, by and among the City of Oak Park Heights, a municipal political subdivision in the State of Minnesota("Seller"),Madison Hospitality Group,LLC,a Minnesota limited liability company or its assign as specified in Section 12.7 ("Buyer"). RECITALS WHEREAS, Seller owns the Property(as hereinafter defined);and WHEREAS,Buyer desires to enter into this Agreement to establish the terms and conditions upon which Buyer will purchase the Property. NOW, THEREFORE, for good and valuable consideration, the receipt of sufficiency of which is hereby agreed and acknowledge by Seller and Buyer,the parties hereto agree as follows: I. SALE AND PURCHASE 1.1. Sale of Property. Subject to the terms and conditions of this Purchase Agreement ("Agreement"), Seller will sell and convey to Buyer, and Buyer will purchase and accept from Seller,the following(collectively,the"Property"): (a) the parcel of real property located at the intersection of Memorial Avenue North and 58h Street in Oak Park Heights,MN,which parcel is legally described on Exhibit A attached hereto (to be confirmed by the Commitment and Survey), with Tax Parcel Number 06.029.20.12.0020 together with all improvements thereon and all rights, privileges, easements, licenses, appurtenances and hereditaments relating thereto (herein referred to collectively as the"Real Property"); and (b) all interest of Seller in and to all permits, licenses and governmental registrations, filings, authorization or approvals regarding the Real Property to the extent assignable(the "Permits"). 1.2. Closing. The closing of the sale and purchase of the Property("Closing") will occur at 10:00 a.m.on the later of(a)forty-five(45)days after the expiration of the Due Diligence Period; or(ii)the date set forth in Section 3.4,in the offices of f S.4 Title Insurance Company,in 049&9 &WI Minnesota, or such other closing agent mutually acceptable to both Buyer and Seller(the"Title Company"),or at such other time or place as Buyer and Seller may agree. H. PURCHASE PRICE 2.1. Payment of Purchase Price. The purchase price for the Property will be Eight Hundred Seventy-five Thousand and No/100 Dollars ($875,000.00) (the "Purchase Price), paid in the following manner: (a) Fifty Thousand and No/100 Dollars($50,000.00),by Buyer depositing with the Title Company identified in Section 1.2 such amount by wire transfer upon the Page 6 of 24 Effective Date(as defined in Section 12.2)as earnest money(the"Earnest Money")to be held and disbursed to Seller at Closing;and (b) the remainder, less any CIosing proration and less any Additional Earnest Money deposited pursuant to Section 4.3, by Buyer paying such amount to Seller by wire transfer at Closing. 2.2. Method of Payment. All payments by Buyer will be in U.S. Dollars and in the form of wire transfers, certified checks or other immediately available funds. 2.3. Application of Earnest Money and Additional Earnest Money. Any Earnest Money deposited by Buyer under Section 2.1 and Additional Earnest Money deposited by Buyer under Section 4.3 will be deposited with the Title Company identified in Section 1.2.in an FDIC-insured non-interest bearing account. If Closing occurs, such Earnest Money and Additional Earnest Money will be paid to Seller as a part of the Purchase Price. 2.4. Additional Consideration Provided by Seller. In additional consideration for Buyer's agreement to purchase of the Property, Seller covenants and agrees,at its sole cost and expense: (a) prior to Closing,to vacate any portion of the Drainage and Utility Easement as dedicated on the Plat of Stillwater Motors Addition to the City of Oak Park Heights that impacts the foot print of Buyer's proposed hotel building,pursuant to Minn. Stat. Section 505.14,within the subject property. (b) within ninety (90) days after Closing, to physically relocate the Sanitary Sewer Line and Water Service Line within the subject property[as those terms are defined hereinafter in Section 6.2(i)]to a new alignment,location,and depth upon the Property as shall be reasonably approved in writing by Buyer, consistent with Section 6.2(i)and(j). III. TITLE 3.1, Title Commitment. Within two (2) business days after the Effective Date, Seller will order a commitment for an owner's policy of title insurance(ALTA Form 06-17-06)covering the Property(the"Commitment"),issued by Title Company,with standard exceptions for mechanic's lien,survey and parties in possession deleted,with searches for special assessments,and with an amount of coverage equal to the Purchase Price. The Commitment will include a copy of each instrument listed as an exception to title or referred to therein. The service charge for the Commitment will be paid by Seller and the premium for any policy issued pursuant to such Commitment will be paid by Buyer. 3.2. Survey. Within sixty(60)days after the Effective Date, Buyer, at its sole cost,will have an updated survey of the Property made by a registered land surveyor licensed in the State of Minnesota. Such survey shall be made in accordance with the Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys of 2016 as adopted by the American Land Title Association and National Society of Professional Surveyors,including items 1,2, 3,4,6(a)&(b), 8, 11, 14, 17 and 19 of Table A thereof and be certified and delivered to Buyer, Title Company, and such other party/ies as Buyer requests(the"Survey"). 2 Page 7 of 24 3.3. Examination of Title. Buyer will be allowed thirty (30) days after receipt of both the Commitment and Survey for examination of title to the Real Property and making of objections. Any matters Buyer does not object to within such thirty(30)day period shall be deemed waived. 3.4. Corrections to Title. If any objections to title to the Property are made as provided in Section 3.3, Seller will be allowed fifteen(15) days in which to notify Buyer whether Seller will cure any of Buyer's objections. If Seller notifies Buyer that Seller will not cure an objection, Buyer will have fifteen (15) days to notify Seller that Buyer will terminate this Agreement, in which event the Earnest Money and Additional Earnest Money will be returned to Buyer and neither Buyer nor Seller will have any further obligations under this Agreement, except those obligations that expressly survive such termination. If Buyer does not terminate this Agreement, Seller will proceed to endeavor in commercially reasonable good faith to cure those objections that Seller has agreed to cure. Pending correction of title, Closing will be postponed; but upon correction of title or waiver of the specified defects by Buyer, Closing will be held on the date scheduled for Closing under Section 1.2 or,if later,thirty(30)days after the objections are cured or waived. Notwithstanding anything to the contrary, Seller shall be obligated to discharge,prior to Closing, any monetary lien or other encumbrance not caused by Buyer that secures or seeks to enforce against the Property a specified sum of money; and, if at Closing there exists any lien or other encumbrance that seeks to enforce or secure a specified sum of money that has been discharged or satisfied by Seller, Buyer may, in addition to its other rights and remedies, elect to satisfy and discharge or assume the payment of said lien or other encumbrance at Closing,in which event Buyer shall,at Closing,receive a credit to the Purchase Price equal to the amount expended or assumed by Buyer. IV. REVIEW OF THE PROPERTY 4.1. Documents. On or before the Effective Date, Seller, at Seller's sole cost, will provide to Buyer copies of all due diligence materials with respect to the Property in its possession(or notice that Seller does not have such items), including the following items if available after diligent inquiry and copies of any other similar documents pertaining to the Property which Buyer may reasonably request in order to carry out its due diligence (collectively, the "Due Diligence Documents"): (i) all Permits (as defined in Section 1); (ii) Seller's most recent title insurance policy for the Property,and copies of all exception documents shown thereon that are available to Seller or in Seller's possession or control; (iii) all environmental assessment reports, soil, groundwater or vapor tests,wetland surveys,archeological and historical surveys,and engineering reports and materials pertaining to any improvements contained on,over or under the Property or to the physical condition of the Property in the possession of or available to Seller,(iv)any existing survey drawings depicting the Property including topographical elevation notations including all comers of the Real Property; (v) all development approvals and permits and existing audits or reports relating to the compliance with applicable governmental laws,ordinances and regulations with respect to the Property,if any(and with respect to any development approvals or permits that have been applied for but not yet issued,a copy of the application materials and all correspondence relating thereto), including without limitation, any development orders, plat approvals, site plan approvals,permits for installation of water and sewer facilities,and also including any conditions, restrictions, obligations, covenants, declarations or agreements that may exist or may have been submitted, received by, entered into or accepted by Seller pertaining to the development of the Property; (vi) all permits, reports, surveys, and other documents that evidence the location, 3 Page 8 of 24 capacity, and/or availability of utilities to the Property; (vii) all real estate and personal property tax bills for the Property for the past three (3) years, including any notices of assessments and information and documentation regarding any tax or assessment protests;and(viii)all agreements to which Seller is a party and/or that affect the Property; and any amendments or modifications to any of the foregoing. 4.2. Due Diligence. Buyer will be allowed ninety(90) days after the later of(i)the Effective Date or(ii)the date upon which Seller provides the last of the Due Diligence Documents to Buyer (the "Due Diligence Period"), to review the Due Diligence Documents, inspect the Property, perform such surveys,observations, soil borings,archeological and historical surveys, appraisals, tests and investigations as Buyer may reasonably deem appropriate, apply for all permits, conditional use permits,variances, building permits,licenses, assurances,and approvals as Buyer may reasonably deem appropriate for Buyer's intended use of the Property, determine whether Buyer's proposed construction on the Property can occur without the use of piling,extraordinary filling or other extraordinary land preparation steps, and otherwise satisfy itself regarding the condition, suitability and desirability of the Property for Buyer's intended purpose (collectively "Due Diligence"). If Buyer in its absolute and sole discretion is not satisfied with the Property or the results of its Due Diligence,Buyer may on or before the expiration of the Due Diligence Period (as extended pursuant to Section 4.3 and/or 4.4)terminate this Agreement by giving written notice to Seller. Upon such termination prior to the end of the Due Diligence Period and any extension thereof pursuant to Section 4.3 and/or 4.4,the Earnest Money and Additional Earnest Money will be retumed to Buyer and neither party will have any further obligations under this Agreement, except those obligations that expressly survive such termination. In the event that Buyer terminates this Purchase Agreement for any reason,Buyer shall promptly return the Due Diligence Documents to Seller. 4.3. Extension of Due Diligence Period Buyer shall be entitled to extend the Due Diligence Period for up to two (2), sixty (60) day extensions, upon the deposit by Buyer with the Title Company of the sum of$10,000 ("Additional Earnest Money') in consideration for each such sixty (60) day extension. All Earnest Money and Additional Earnest Money shall remain refundable to Buyer during the Due Diligence Period,as extended,or as otherwise provided for in this Agreement,except as provided for in Section 11.1. 4.4. Environmental Inspection. Buyer may provide its environmental consultant with a copy of any environmental report included in the Due Diligence Documents made available by Seller and,pursuant to Section 4.5,may at its cost conduct additional investigations of the environmental condition of the Property, including a walk-through to identify any hazardous substances stored on the Property. If Buyer conducts a Phase I environmental investigation and such report contains a recommendation for a Phase II investigation, Buyer will have the option of terminating this Agreement or ordering,at Buyer's cost,a Phase H investigation. If Buyer elects to terminate this Agreement, the Earnest Money and Additional Earnest Money will be returned to Buyer and neither party will have any further obligations under this Agreement,except those obligations that expressly survive such termination. In the event that Buyer elects to order a Phase II investigation, the Due Diligence Period may be extended an additional sixty(60) days upon written notice by Buyer for purposes of completing such investigation and obtaining a No Association Determination letter from the Minnesota Pollution Control Agency(MPCA),if deemed necessary by Buyer, without the payment of any Additional Earnest Money. 4 Page 9 of 24 4.5. Property Inspection. During the period from the Effective Date to Closing,Buyer and its representatives may enter the Real Property to inspect the Property and perform reasonable surveys, observations, soil borings, archeological and historical surveys, appraisals, tests and investigations at reasonable times with prior notice to Seller. Buyer shall request access to the Real Property for any invasive testing (other than soil borings) at least forty-eight (48)hours in advance of its desired time for conducting such testing, and Buyer will not commence invasive testing (other than soil borings) without Seller's prior written approval,which approval shall not be unreasonably withheld or delayed. Buyer will at Buyer's cost repair any resulting damage to the Property and will indemnify and hold harmless Seller from any injury or damage to persons or property. Buyer and its consultants shall carry liability insurance against damage or liability arising from any testing, and Buyer agrees to indemnify, defend, and hold Seller harmless from property damage and personal injury which may result from their activities on the Property. All indemnities of Buyer under this Section IV will survive the termination of this Agreement. V. CONDITIONS TO CLOSING 5.1. Buyer Conditions. The obligation of Buyer to perform and to purchase the Property under this Agreement is subject to the reasonable satisfaction of Buyer that: (a) at Closing,Buyer has received a bring-down certificate or certificates dated the day of Closing and signed by an authorized officer of Seller certifying that the representations and warranties of Seller contained in Section 8.1 are true as of the date of Closing; (b) the Title Company shall have committed to issue an ALTA fee owner's policy of title insurance issued by the Title Company in the amount of the Purchase Price and subject only to those exceptions approved by Buyer pursuant to Sections 3.3 and 3.4 above; (c) Buyer elects not to exercise its right to terminate this Agreement during the Due Diligence Period, as extended;and (d) Seller having satisfactorily complied with its obligations pursuant to this Agreement including but not limited to the Seller Closing Documents specified in Section 6.2. (e) Buyer having received from the City of Oak Park Heights all land use permits(i.e.Conditional Use, Interim Use,Variances)that are required for its hotel project to be located upon the Property. 5.2. Seller Conditions. The obligation of Seller to perform and to sell the Property under this Agreement is subject to the reasonable satisfaction of Seller that: (a) the representations and warranties of Buyer contained in Section 8.2 are true and correct in all material respects as of Closing; 5 Page 10 of 24 (b) Buyer has in all material respects performed and observed all covenants, agreements and conditions of this Agreement to be performed or observed by it on or before the times for such performance set forth herein; (c) at Closing, Seller has received a certificate or certificates dated the day of Closing and signed by an authorized officer of Buyer certifying as to the matters set forth in items(a)and(b)of this Section;and (d) Buyer having satisfactorily complied with its obligations pursuant to this Agreement. (e) Buyer having entered into a Developer's Agreement with the City of Oak Park Heights for the construction of a hotel upon the property by the Buyer and payment of fees and charges related to development of the property as required under the ordinances, policies and resolutions of the City. The Developer's Agreement will be non-assignable until the terms and provisions thereof have been fully performed and executed by Buyer, except as provided for in Section 12.7. 5.3. Unsatisfied Conditions. Subject to the terms of Section 5.4 below,if any conditions set out in Section 5.1 and Section 5.2 are unsatisfied on the date(s) indicated therein, or, if no date is specified, as of Closing,then either Buyer or Seller may at their option: (a) waive the condition and proceed with Closing; or (b) terminate this Agreement, in which event, upon a failure of a Buyer condition under Section 5.1, Seller shall have the rights and remedies under Section 11.1, and upon a failure of a Seller condition under 5.2,Buyer shall have the rights and remedies under Section 11.2, and neither party will have any further obligations under this Agreement except for those provisions of this Agreement that expressly survive such termination. 5.4. Extension of Closing. Buyer and Seller may agree in writing to extend the deadline for the satisfaction of one or more unsatisfied conditions for a mutually acceptable period of time while the parties diligently proceed to satisfy such condition or conditions. VI. CLOSING 5.1. Buyer Closing Documents. Buyer will deliver to Seller at Closing: (a) the portion of the Purchase Price specified in Section 2.1(b); (b) a resolution of the authorized officers of Buyer authorizing and approving the transaction contemplated by this Agreement, certified as true and correct by the Secretary of Buyer; (c) a closing settlement statement prepared by the Title Company and duly executed by Buyer; 5 Page 11 of 24 (d) information necessary to complete the electronic Certificate(s) of Real Estate Value to be filed with the County Assessor's Office by the Title Company, and (e) Executed Developer's Agreement with the City of Oak Park Heights. (f) Final Land use permits as required by the City of Oak Park Heights to permit Buyers use of the Property for a Hotel operation. (g) any other items required by this Agreement. 5.2. Seller Closing Documents. Seller will deliver to Buyer at Closing: (a) a general warranty deed duly executed by Seller conveying good and marketable fee simple title to the Real Property to Buyer, free and clear of all encumbrances. (b) an assignment of Seller's interest in the Permits,duly executed by Seller; (c) a well disclosure statement as required under Minnesota Statutes section 103I.235, if appropriate disclaimer language is not contained in the deed delivered at Closing; (d) an affidavit satisfactory to Buyer that Seller is not a foreign person under Section 1445 of the United States Internal Revenue Code; (e) an affidavit satisfactory to Buyer and the Title Company that at Closing there are no outstanding, unsatisfied judgments, tax liens, or bankruptcies against Seller, no labor,services,materials,or machinery furnished to the Property for which mechanics' liens could be filed, and no unrecorded interests in the Property; (fl a resolution of Seller authorizing and approving the transaction contemplated by this Agreement, certified as true and correct by an officer of Seller; (g) a certificate or certificates dated the day of Closing in accordance with Section 5.1(a); (h) a closing settlement statement prepared by the Title Company, and duly executed by Seller; (i) an executed and recorded Amendment to Easement Agreement in form and substance reasonably approved by Buyer,executed(1)by Seller,as owner of the Property, (2) by the record owner("Lot 2 Owner")of Lot 2, Block 1, Stillwater Motors Addition to the City of Oak Park Heights("Lot 2"), and(3)by any lenders holding mortgages or other liens or encumbrances("Lot 2 Lenders")against Lot 2,whereby the cxecuting parties agree to the relocation of the Sanitary Sewer Line ("Sanitary Sewer Line') and Water Service Line ("Water Service Line") as defined in the Easement Agreement dated December 11, 2009,recorded December 17,2009 as Doc.No. 3772058 in the Office of the Washington County Recorder,between Seller,as Grantor,and Raduenz Dealership Properties, LLC,as 7 Page 12 of 24 Grantee, to a new alignment, location within the subject property, and depth upon the Property as reasonably approved in writing by Buyer; 0) an Escrow Agreement providing for the escrow at Closing of Seller's funds in an amount equal to 125%of the written bid of a qualified contractor to accomplish the relocation of the Sanitary Sewer Line and Water Service Line referenced in Sections 2.4 (b) and 6.2 (i), which relocation shall be substantially completed at Seller's sole cost and expense not later than ninety(90)days following Closing; (k) any other items required by this Agreement and such other documents as may be reasonably and customarily required in connection with the transaction contemplated by this Agreement. 6.3. 'DehverL of Possession. Seller will deliver possession of the Property to Buyer at Closing. 6.4. Further Actions. Subject to payment as required in Section 7.1 below, at Buyer's request from time to time after Closing,Buyer and Seller will execute and deliver such further documents of conveyance and take such other action as may reasonably be necessary to complete this transaction and perform the covenants undertaken by the respective parties hereto as contemplated by the terms of this Agreement. VII. CLOSING COSTS AND PROBATIONS 7.1. Closing Costs. Buyer and Seller will each be responsible for its legal, accounting and other expenses associated with the transaction contemplated by this Agreement up to and including the date final adjustments are made pursuant to this Agreement. Seller will be responsible for any document recording fees required for correction of title,preparation of the general warranty deed, costs incurred in obtaining the Commitment,and state deed tax and any other transfer fees required in connection with the transaction. Buyer will pay recording fees for filing the deed in the county real estate records and all other document recording fees, fees associated with the transfer or obtaining of licenses and permits required to operate the Property other than existing Permits, and any mortgage registry taxes required in connection with the transaction. Seller and Buyer will each pay half of the closing fee and any escrow fees imposed by the title insurer or its closing agent in connection with this transaction. 7.2. Taxes and Assessments. Real estate taxes and installments of levied special assessments certified to the current year's taxes with respect to the Property due and payable in the year in which CIosing occurs will be prorated on a per diem basis using a calendar year, to Closing, provided Seller will be responsible for any penalties and interest thereon. Seller will pay all special assessments that are assessed, levied, deferred,or pending,to the extent payment is not due as of Closing. Seller will also pay any other deferred real estate taxes and assessments now or hereafter due by virtue of the sale of the Property or otherwise accruing for the period prior to Closing. Buyer shall be responsible for any special assessments to be levied in conjunction with Buyer's proposed development of the Property. 7.3. Indemnification. Seller shall indemnify, defend and hold harmless Buyer from any liability, attorney's fees, and costs arising out of events on or about the Property which occurred prior to Closing other than those associated with Buyer's Due Diligence; and Buyer shall 8 Page 13 of 24 indemnify, defend and hold harmless Seller from any liability, attorney's fees, and costs arising out of events on or about the Property associated with Buyer's Due Diligence or which occurred after Closing. VIII. WARRANTIES AND REPRESENTATIONS 8.1. Seller Warranties. Seller warrants and represents to Buyer that: (a) Seller is currently the fee owner of the Property; (b) the Due Diligence Documents delivered to Buyer are true and correct copies,have not been amended or modified(except as noted when provided to Buyer),are in full force and effect and free from default or notice of default, and there are no oral agreements modifying, amending, extending, altering or in any way affecting the Due Diligence Documents; (c) other than as set forth in Section 12.3, below,no brokerage commission or other compensation is due and owing by Seller, and unpaid, in connection with the Real Property or any renewal thereof; (d) Seller has not received any notice of a violation of any building codes, fire codes, health codes, zoning codes, environmental laws, or other laws and regulations affecting the Property or the use thereof; (e) Seller has not received any notice of and has no knowledge of a condemnation,environmental,zoning or other regulation or proceeding being instituted or planned which would detrimentally affect the use and operation of the Property for Buyer's intended purpose as a hotel/lodging facility; (f) Seller has not received any notice of hearing from and has no knowledge of a public improvement project by any governmental assessing authority being instituted or planned,the costs of which may be assessed against the Property; (g) Seller does not know of any wells on the Property (this statement being made pursuant to the disclosure requirements of Minnesota Statutes section 103I.235); (h) Seller does not know of any individual sewage treatment systems on the Property or serving the Property (this statement being made pursuant to the disclosure requirements of Minnesota Statutes section 115.55); (i) Seller does not know of any underground or aboveground storage tanks currently on the Property, or any underground or aboveground storage tanks formerly on the Property that had a release for which no corrective action was taken (this statement being made pursuant to the disclosure requirements of Minnesota Statutes section 116.48); (j) No methamphetamine production has occurred on the Real Property; 9 Page 14 of 24 (k) No toxic or hazardous substances or wastes, pollutants or contaminants (including, without limitation, asbestos, urea formaldehyde, the group of organic compounds known as polychlorinated biphenyls, petroleum products including gasoline, fuel oil,crude oil and various constituents and such products,and any hazardous substance as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601-9657, as amended ("CERCLA") have been generated, treated, stored, released or disposed of, or otherwise placed, deposited in or located on the Property, nor has any activity been undertaken on the Property that would cause or contribute to (i) the Property to become a treatment, storage or disposal facility within the meaning of, or otherwise bring the Property within the ambit of,the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.G. Section 6901 et seq., or any similar state law or local ordinance, (ii) a release or threatened release of toxic or hazardous wastes or substances,pollutants or contaminants, from the Property within the ambit of, CERCLA, or any similar state law of local ordinance, or(iii) the discharge of pollutants or effluents into any water source or system,the dredging or filling of any waters or the discharge into the air of any emissions,that would require a permit under the Federal Water Pollution Control Act,33 U.S.C. Section 1251 et seq.,or the Clean Air Act, U.S.C. Section 7401 et seq., or any similar state law or local ordinance. To Seller's knowledge, no substances or conditions exist in or on the Property that may support a claim or cause of action under RCRA,CERCLA or any other federal,state or local environmental statutes, regulations,ordinances or other environmental regulatory requirements, including without limitation, the Minnesota Environmental Response and Liability Act, Minn. Stat. Section 115B("MERLA") and the Minnesota Petroleum Tank Release Cleanup Act, Minn. Stat. Section 115C; (1) Seller is political subdivision, duly organized, validly existing and in good standing under applicable laws and has all requisite power and authority to carry out its business as conducted, to execute and deliver this Agreement and the documents entered into pursuant to this Agreement,and to carry out its obligations under this Agreement and such documents; (m) This Agreement has been duly authorized,executed and delivered on behalf of Seller, constitutes the valid and binding agreement of Seller,enforceable in accordance with its terms under applicable law and has all requisite power and authority to carry out its business as conducted,to execute and deliver this Agreement and the documents entered into pursuant hereto, and to carry out its obligations under this Agreement and such documents; (n) the execution, delivery and performance of this Agreement by Seller will not result in a breach or violation of Seller or constitute a default by Seller under any agreement,instrument or order to which Seller is a party or by which Seller is bound; (o) Seller is not aware of any action, proceeding or investigation pending or threatened which might materially adversely affect the Property or the ability of Seller to perform its obligations under this Agreement; 10 Page 15 of 24 (p) Seller and the Property are not subject to any commitment, obligation, or agreement, including, but not limited to, any lease, right of first refusal, or option to purchase,granted to a third parry,which might prevent the consummation of the transaction contemplated herein,except for the Leases and any Contracts assumed by Buyer,or which might bind Buyer subsequent to consummation of this Agreement; (q) As of Closing,there will be no obligations or liabilities of any kind or nature whatsoever, including but not limited to, any tax liabilities, common interest community assessment obligations,contract liabilities or tort liabilities for which or to which Buyer or the Property will be liable or subject,except for non-delinquent real estate tax obligations. (r) The Property is not in a Special Flood Hazard Area as regulated by the Federal Emergency Management Agency;and (s) The Property is not affected by airport zoning regulations. (t) All utilities, including, but not limited to, city sanitary sewer, city storm sewer, city water, natural gas, electricity, internet and telephone, are available to a connection point at the exterior boundary of the Property. (u) Seller shall cooperate in all reasonable respects with Buyer in obtaining governmental approvals,and shall execute such applications,permits and other documents as may be reasonably required. Seller shall not be entitled to any compensation in connection with such cooperation. Seller shall not be required to expend any funds or monies to obtain governmental approvals for Buyer's intended use of the Property. (v) The Property is zoned consistent with Buyer's intended use for hotel/lodging purposes. (w) The Property contains 104,599 buildable square feet of area. 8.2. Buyer Warranties. Buyer warrants and represents to Seller that: (a) Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Minnesota,and has all requisite power to carry on its business as conducted, to execute and deliver this Agreement and the documents entered into pursuant hereto,and to carry out its obligations under this Agreement and such documents; (b) this Agreement has been duly authorized,executed and delivered on behalf of Buyer and constitutes the valid and binding agreement of Buyer, enforceable in accordance with its terms; (c) the execution, delivery and performance of this Agreement by Buyer will not result in a breach or violation by Buyer or constitute a default by Buyer under any agreement,instrument or order to which Buyer is a party or by which Buyer is bound;and 11 Page 16 of 24 (d) Buyer is not aware of any action, proceeding or investigation pending or threatened which might materially adversely affect the ability of Buyer to perform its obligations under this Agreement. IX. OPERATIONS PRIOR TO CLOSING 9.1. Operation. During the period from the Effective Date to Closing, Seller will cause the Property to be maintained and operated in substantially the manner in which it has been maintained and operated prior to the Effective Date. Except for agreements to maintain and operate the Property until Closing as required in the immediately preceding sentence, Seller will not without Buyer's written consent, permit any leases, contracts, or agreements or any amendment, modification, termination, surrender, extension or assignment or any waiver of Seller's rights under any of the same,affecting the Property. Seller will keep and comply with all requirements of encumbrances and will not without Buyer's written consent, which consent will not be unreasonably withheld,conditioned or delayed,permit any new encumbrance or any amendment, modification or termination of any encumbrance or any waiver of Seller's rights under any encumbrance on the Property. 9.2. Risk of Loss. Risk of loss to the Property shall be borne by Seller until title has been conveyed to Buyer or Buyer's designee at Closing. X. CASUALTY AND CONDEMNATION 10.1. Notice of Damage or Taking. Seller will give Buyer prompt notice of any casualty occurring between the Effective Date and Closing which involves damage to the Property and of any actual or threatened taking in condemnation affecting the Property of which Seller has knowledge. 10.2. Option to Terminate. If prior to Closing: (a) the Property sustains damage by any casualty or cause; (b) the Property or any portion or interest therein is taken in condemnation or by transfer in lieu of condemnation;or (c) condemnation proceedings are commenced or threatened against the Property, Buyer may terminate its obligations under this Agreement by written notice given to Seller within thirty (30) days after receipt of the notice referred to in Section 10.1. If so terminated, this Agreement will be void and of no effect, the Earnest Money and Additional Earnest Money will be returned to Buyer and neither party will have any further rights or obligations under this Agreement, except those obligations that expressly survive such termination. 10.3. Effect on Closing. If Buyer is not entitled to or does not timely make the election provided for in Section 10.2,this Agreement and the obligations of Seller and Buyer under this Agreement will remain in full force and effect except that: 12 Page 17 of 24 (a) Buyer will accept the Property with such damage or condemnation;and (b) Seller will at Closing, pay over to Buyer any insurance proceeds and condemnation awards received prior to Closing which have not been applied to repairs and restoration, and assign to Buyer Seller's interest in all unpaid insurance proceeds and condemnation awards. XI. REMEDIES 11.1. Default by Buyer. If Buyer defaults under this Agreement, Seller shall have the right as its sole and exclusive remedy to terminate this Agreement by giving written notice to Buyer. Upon such termination, and provided Seller is not in default of this Agreement,the Earnest Money will be paid to Seller as liquidated damages and Buyer and Seller will have no further rights or obligations under this Agreement, except those rights and obligations that expressly survive such termination. Seller and Buyer acknowledge the difficulty and inconvenience of ascertaining Seller's actual damages in the event of Buyer's default and agree that the Earnest Money paid to Seller is a fair and reasonable estimate of such damages. The termination of this Agreement and retention of the Earnest Money will be the sole remedy available to Seller for such default by Buyer, and Buyer will not be liable for damages or specific performance. 11.2. Default by Seller. If Seller defaults under this Agreement, Buyer may elect to: (ii) terminate this Agreement and be relieved of its obligations hereunder,in which event Buyer shall be entitled to the prompt return of the Earnest Money and Additional Earnest Money; 11.3. Survival. This Article 11 shall survive termination of this Agreement. XII. GENERAL 12.1. Notices. Any notice,demand or document which any party is required or any party desires to give or deliver to or make upon any other party shall, in the case of a notice or demand, be in writing, and may be personally delivered (provided a written receipt of delivery is obtained), delivered by Federal Express or other nationally recognized courier service guaranteeing overnight delivery, or given or made by United States registered or certified mail,return receipt requested, with postage prepaid,addressed as follows: (a) if to Seller: City of Oak Park Heights Attn: City Administrator 14168 Oak Park Blvd. P. O.Box 2007 Oak Park Heights,MN 55082 eajohnson@cityofoakparkheights.com with a copy to: Eckberg&Lammers Attn: Mark Vierling,Esq. 1809 Northwestern Avenue Stillwater,MN 55082 mvierling@eckberglammers.com 13 Page 18 of 24 (b) if to Buyer: Madison Hospitality Group,LLC 1914 South 7d'Street Brainerd,MN 56401 kirk@mhgmn.com with a copy to: Johnston Law Office, P.A. Attn: Scott T. Johnston,Esq. 510 22nd Avenue East, Suite 101 P. O. Box 1218 Alexandria,MN 56308 johnston@johnstonlawoff.com subject to the right of any party to designate a different address for itself by notice similarly given. Any such notice, demand or document so given,delivered or made by registered or certified mail as aforesaid, shall be deemed to be given, delivered or made (a)upon receipt of the same by the party or parties to whom the same is to be given, delivered or made, if delivered personally, (b) upon deposit with Federal Express or other nationally recognized courier service guaranteeing overnight delivery,(c)upon deposit in the United States mail,certified or registered mail,postage prepaid, or(d) upon delivery by e-mail (followed up on the next business day by either certified or registered mail or overnight delivery). 12.2. Effective Date. The effective date of this Agreement will be the date upon which it is executed by the last signatory hereto(the"Effective Date'). 12.3. Broker Commissions. Buyer and Seller each represents that no salesperson, broker, or agent has been retained by it in connection with this transaction. Buyer and Seller each hereby indemnifies the other from any real estate or other sales commissions arising out of any claim of any salesperson, broker or agent acting or claiming to have acted on behalf of the indemnifying party in connection with this transaction. 12.4. Entire Agreement. This Agreement and the Exhibits referenced herein embody the entire agreement and understanding between Buyer and Seller relating to the transaction contemplated by this Agreement and may not be amended, waived or discharged except by an instrument in writing executed by the party against whom enforcement of such amendment,waiver or discharge is sought. No warranties or representations have been given by either party to the other which are not fully embodied in this Agreement. If any term or provision of this Agreement is invalid or unenforceable,the remainder of this Agreement will not be affected and will remain in full force and effect. 12.5. Survival. Except as may otherwise be expressly provided in this Agreement,all covenants, agreements, obligations and undertakings made by Seller and Buyer in or pursuant to this Agreement will survive Closing, for a period of two (2) years after Closing, whether or not so expressed in the immediate context of any such covenant,agreement, obligation or undertaking. 14 Page 19 of 24 12.6. Construction. This Agreement will be construed and enforced in accordance with the laws of the State of Minnesota. 12.7.. _Assignment. Buyer may not assign its rights under this Agreement prior to Closing,except that Buyer shall be entitled to assign its rights and obligations one time hereunder to a separate entity to be formed for the purpose of consummating the purchase of the Property so long as the Members of such entity include Buyer or Steven J. Madison, William T. Schultz, and Kirk J. Schultz, among other members. No further assignments will be allowed without the approval of Seller. 12.8. Binding Agreement. This Agreement will be binding upon and inure to the benefit of Buyer and Seller and their respective heirs,representatives,successors and assigns. 12.9. Counterparts. This Agreement may be executed in any number of counterparts which together shall constitute the contract of the parties. 12.10. Section Headings. The section headings herein contained are for purposes of identification only and shall not be considered in construing this Agreement. 12.11. 'Exhibits. Any and all exhibits attached or to be attached hereto are hereby incorporated and made a part of this Agreement by reference. 12.12. Waiver. Except as herein expressly provided,no waiver by a party of any breach of this Agreement or of any warranty or representation hereunder by another party shall be deemed to be a waiver of any other breach of any kind or nature(whether preceding or succeeding and whether or not of the same or similar nature), and no acceptance of payment or performance by a party after any such breach by another party shall be deemed to be a waiver of any finther breach of this Agreement or of any representation or warranty hereunder by such other party whether or not the first party knows of such a breach at the time it accepts such payment or performance. No failure on the part of a party to exercise any right it may have by the terms hereunder or by law upon the default of another party, and no delay in the exercise thereof by the first party at any time when such other party may continue to be so in default, shall operate as a waiver of any default,or as a modification in any respect of the provisions of this Agreement. 12.13. Time Computations. In computing a period of days for performance or payment as provided hereunder,the first day shall be excluded and the last day shall be included. If the last day of any such period is a Saturday, Sunday or legal holiday, the period shall extend to include the next day which is not a Saturday, Sunday, or legal holiday. Any performance or payment which must be taken or made under this Agreement must be taken or made prior to 5:00 p.m. of the last day of the applicable period provided hereunder for such action, unless another time is expressly specified. All references to time shall be Minneapolis,Minnesota time. 12.14. Execution and Delivery. Seller and Buyer acknowledge that each of them and their counsel have had the opportunity to review this Agreement, and that this Agreement will not be construed against Buyer merely because Buyer's counsel has prepared it. This Agreement will be effective only upon execution and delivery by both parties. 15 Page 20 of 24 12.15. Electronic Signatures. Seller and Buyer each agree that the electronic signatures,whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record,including,without limitation,Adobe e- signature,DocuSign,E-sign, facsimile or e-mail electronic signatures. 12.16. OFAC Compliance. Seller warrants and represents that neither Seller nor any affiliate of Seller(i)is a Blocked Party; (ii)is owned or controlled by, or is acting,directly or indirectly, for or on behalf of, any Blocked Party; or (iii) has instigated, negotiated, facilitated, executed or otherwise engaged in this Agreement directly or indirectly on behalf of any Blocked Party. Seller shall immediately notify Buyer if any of the foregoing warranties and representations becomes untrue. For purposes of this Agreement, `Blocked Party" shall mean any party or nation that(a) is listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Asset Control, Department of the U.S. Treasury ("OFAC") pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079(Sept.25,200 1)or other similar requirements contained in the rules and regulations of OFAC(the"Order")or in any enabling legislation or other Executive Orders in respect thereof(the Order and such other rules, regulations, legislation, or orders are collectively called the "Orders') or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders; or (b) has been determined by competent authority to be subject to the prohibitions contained in the Orders. 12.17. Time is of the Essence. Time is of the essence of this Agreement. 12.18. Third Partv Beneficiaries. There are no third party beneficiaries of this Agreement, intended or otherwise. [SIGNATURE PAGES TO FOLLOW] 16 Page 21 of 24 IN WITNESS WHEREOF, Seller and Buyer have duly executed this Agreement as of the Effective Date. SELLER: CI F O HEIGHTS By N e OMA Title rA 4.-f-0 4— Date signed: Au o✓s t 12017 BUYER: MADISON HOSPITALITY GROUP,LLC, a Minnesota limited liability company By Name Title , Date signed: 2017 17 Page 22 of 24 EXHIBIT A LEGAL DESCRIPTION (Survey and Commitment to control) Lot 1,Block 1,Stillwater Motors Addition to the City of Oak Park Heights, Washington County,Minnesota Page 23 of 24 THIS PAGE INTENTIONALLY LEFT BLANK Page 24 of 24