HomeMy WebLinkAboutDevelopment Application Supplement - 06-23-08 Purchase Agreementcm,/e 1Rie 7
PURCHASE AGREEMENT
This Purchase Agreement ( "Agreement ") is made as of J J L )v i... Z3 2008
( "Effective Date ") by and between Peter R. and Barbara A. Houser ( "Seller ") and M &I
Marshall & Ilsley Bank, a Wisconsin state chartered bank, or its assigns ( "Buyer ").
1. Sale of Property. Seller agrees to sell to Buyer, and Buyer agrees to buy from
Seller the real property consisting of approximately 1.24 acres identified as an outlot to Wal-
Mart in Oak Park Heights, Minnesota, which real property is depicted on Exhibit A and legally
described on Exhibit B, both attached hereto and made a part hereof, together with all
easements, hereditaments, appurtenances, and other rights benefiting or appurtenant to such
property (collectively the "Property ").
2. Purchase Price. The purchase price for the Property to be paid by Buyer to Seller
is Eight Hundred Seventy -Five Thousand and No /100 Dollars ($875,000.00) ( "Purchase Price ").
The Purchase Price will be paid as follows:
(a) Buyer will deposit Twenty Thousand Dollars ($20,000.00) earnest money
( "Earnest Money ") with Dakota County Abstract Company (the "Title
Company "), within five (5) business days after the Effective Date of this
Agreement. The Earnest Money will be disbursed to Seller and credited .
against the. Purchase Price at Closing, or otherwise disbursed in
accordance with this Agreement. If requested by the Title Company,
Buyer and Seller shall execute an earnest money escrow agreement with
terms consistent with this Agreement and mutually acceptable to Buyer,
Seller and the Title Company.
(b) The balance of the Purchase Price, as adjusted by applicable credits and
prorations, will be paid at Closing in cash or other immediately available
funds.
3. Closing. The closing of the purchase and sale transaction described in this
Agreement (the "Closing ") shall take place within thirty (30) days after the expiration or waiver
of all Contingencies, or at such other time as the parties may agree (the "Closing Date "). The
Closing shall take place at the office of the Title Company, or such other location as the p arties
shall agree. Possession of the. Property shall be delivered to Buyer on the Closing Date, with
Seller's Work complete in accordance with Section 10 below.
4. Seller's Deliveries. To the extent any of the following documents or materials
with respect to the Property are in Seller's possession or reasonabl y available to Seller, Seder
shall deliver copies to Buyer within twenty (20) days after the Effective Date: surveys,
preliminary and final plats and site plans, engineering documents, soil condition reports,
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environmental reports, test results, governmental approvals, leases, service contracts, unrecorded
agreements, notices and correspondence relating to any alleged legal violations or any pending or
threatened condemnation, current zoning information and other material documents or
correspondence affecting the Property.
5. Due Diligence. Buyer's obligation to close this transaction is contingent upon the
satisfaction or waiver by Buyer of the following contingencies ( "Contingencies "):
(a) Permitting. Buyer shall have one hundred eighty (180) days after the
Effective Date to obtain all necessary or desired approvals, permits,
easements, licenses and re- zoning necessary for Buyer's construction and
operation of a retail bank branch with parking areas, driveways, drive -
through lanes, and other improvements and facilities incidental thereto as
may be desired by Buyer (the "Project "). Buyer acknowledges that the
retail bank branch building to be located on the Property shall not exceed
8,000 square feet. If re-zoning is required for Buyer's intended use of the
Property, Buyer agrees to apply for such re- zoning within thirty (30) days
after the Effective Date. Seller agrees to cooperate with Buyer in
connection with such re- zoning process and other permitting requirements
relating to the Project. Buyer may extend this permitting contingency two
(2) times for thirty (30) days each by delivering written notice of such
extension on or prior to the then current expiration date of this
contingency. Within three (3) business days after delivering an extension
notice, Buyer will deposit an additional Twenty Thousand Dollars
($20,000.00) Earnest Money with the Title Company, which shall be
disbursed or applied against the Purchase Price in the same manner as the
initial Earnest Money. Buyer will show proof to Seller of progress
through the approval process upon request therefor from Seller.
(b) Inspections. Buyer shall have ninety (90) days after the receipt of the Title
Commitment and Survey to investigate and inspect the Property to
determine, in Buyer's sole discretion, whether the Property is suitable for
construction and operation of the Project at a cost acceptable to Buyer
( "Inspection Period"). During the Inspection Period, Buyer shall have the
right to investigate the Property, including without limitation, the
condition of the Property and the improvements located thereon, to
conduct surveys, geotechnical borings, environmental analysis (including
Phase I assessments, Phase 1I testing, and sampling for lead and asbestos)
and to review all documentation relating to the Property provided by
Seller or obtained by Buyer. Buyer shall provide the Seller with copies of
any and all investigative reports and studies, including without limitation
any Phase 1 or Phase II written reports obtained by Buyer.
(c) Title. Buyer shall have the Inspection Period to review and object to any
matters reflected in the Title Commitment provided under Section 9
below. Such objections will be subject to the provisions of Section 9
below.
(d) Survey. Buyer shall order a survey of the Property ( "Survey"), at Buyer's
sole cost and expense, within fifteen (15) days after receipt of the Title
Commitment. Buyer shall have the Inspection Period to review and object
to any matters reflected in any existing survey delivered by Seller or the
Survey obtained by Buyer. Such objections will be subject to the
provisions of Section 9 below.
(e)
Utilities. Buyer shall have the Inspection Period to determine whether all
necessary public and private utilities, including without limitation, sanitary
and storm sewer, water, gas, electricity and telephone, are currently
available at the Property line at a location reasonably acceptable to Buyer
and capable of delivering sufficient capacity to permit the operation of the
Project, with reasonable tap or connect fees and that all such utilities may
be extended throughout the Property as required for Buyer's development
in a manner which is economically feasible in Buyer's sole discretion.
Buyer may perform such tests, inspections, and investigations as are necessary, in
Buyer's sole discretion, to assist in its evaluation of the Property. Buyer may terminate this
Agreement by written notice to Seller on or prior to the last day of the applicable contingency
period, as may be extended, in which event the Earnest Money shall be returned to Buyer and the
parties shall have no further obligations under this Agreement except those which expressly
survive termination.
ination.
6. Access to Property. Seller shall allow Buyer, and Buyer's agents and
consultants, access to the Property at all reasonable times for the purpose of conducting due
diligence activities. Buyer shall indemnify Seller and hold Seller harmless from all costs and
liabilities arising out of personal injury or property damage caused by Buyer or its designated
representatives on the Property. Buyer shall, at its sole expense, repair any damage to the
Property caused by or occurring as a result of Buyer's investigation, inspection or testing of the
Property, and restore the Property to substantially the same condition as existed prior to such
entry. Notwithstanding anything to the contrary in this Section 6, Buyer's repair obligations and
indemnification of Seller shall not include costs and liabilities relating to pre-existing matters or
any matters caused by Seller, its agents, employees or contractors, or any third party other than
Buyer or Buyer's agents, employees or contractors.
7. Real Estate Taxes and Special Assessments. Seller will pay, on or before the
Closing Date, all special assessments levied, pending or constituting a lien against the Property
as of the Closing Date. Seller shall pay on or before the Closing Date all real estate taxes
payable in calendar years prior to the year of the Closing Date. Real estate taxes payable in the
year of the Closing Date will be prorated between Seller and Buyer as of the Closing Date.
Upon Closing, real estate taxes and special assessments levied in subsequent years will be paid
by Buyer. If the Property includes only a portion of one or more tax parcels, then (i0 the tax
proration for such tax parcel(s) will be calculated based on the ratio of square footage of the
Property to square footage of the entire tax parcel and then prorated as of the Closing Date; and
(ii) if the Property is vacant, Buyer will not be responsible to pay any taxes applicable to building
improvements located elsewhere on the subject tax parcel(s). The Washington County Property
Identification Number for the Property is 05-029-20-12-0033.
S. Representations and warranties. The Seller makes the following
representations and warranties to the Buyer:
(a) Possession. Other than Seller, there are no persons in possession of any
portion of the Property nor any persons with any rights with respect to the
Property other than pursuant to a recorded document.
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(b) Proceedings. Except as disclosed below, Seiler has no knowledge of any
action, litigation, governmental investigation, condemnation or
administrative proceeding of any kind contemplated or pending against the
Seller or involving any portion of Property. No third party has threatened
the Seller with commencement of any such action, litigation, investigation,
condemnation or administrative proceeding, save and except for a certain
Real Estate Mechanic's Lien Statement filed against the Property by
McCombs Frank Ross Associates, Inc. 14800 28th Avenue North, Suite
140, Plymouth, MN 55447 for engineering and surveying services
allegedly performed for Manley Commercial, Inc. Seller did not authorize
such work and had no knowledge of such work. Seller has retained legal
counsel to cause said lien to be removed from the Property. It shall be a
condition precedent to Closing that Seller accomplishes the removal of
such lien from the. Property.
(c)
Other Documents. Neither the execution or delivery of this Agreement
nor the consummation of the transactions contemplated hereby will result
in any breach or violation of, or default under, any judgment, decree,
order, lease, agreement, indenture or other instrument or document to
which Seller is a party or by which the Property or any part thereof is
bound.
(d) Utilities. To the best knowledge of Seller, but without Seller's
independent investigation or verification, utility service lines serving the
Property are located within lands dedicated to public use or recorded
easements for the same.
(e)
Taxes and Assessments. The Property is a separate tax parcel. No real
property tax or special assessment with respect to the Property is
delinquent, and Seller has received no notice of any pending special
assessment with respect to the Property. Seller has no knowledge of any
planned municipal improvements, which may result in assessments against
the Property. Seller has no knowledge of any existing or anticipated
change in the assessed value or tax rate applicable to the Property, save
and except the customary annual notice of valuation of the Property by
Washington County.
FIRPTA. Seller is not a foreign person, foreign partnership, foreign trust
or foreign estate as those terms as defined in Section 1 445 of the Internal
Revenue Code.
Authority. Seller has all right and authority to enter into and perform its
obligations under this Agreement, and the party signing this Agreement on
behalf of Seller is duly authorized to so bind the Seller..
Zoning. The Property is currently zoned B -4, wherein a bank is a
permitted use. To Seller's knowledge, no portion of the Property is
located in a flood plain, wetland, shoreland zoning area, environmental
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corridor or other similarly restricted area. There is no existing, pending
or, to the best of Seller's knowledge, contemplated, threatened or
anticipated (i) widening, change of grade or limitation on use of streets,
roads or highways abutting the Property, (ii) special tax or assessment or
back tax due to abatement, exemption deferment or special classification
to be levied against the Property, (iii) change in the zoning classification
of the Property, or (iv) change in the tax assessment of the Property
(except as noted above).
The representations and warranties set forth in this Section 8 shall be true and correct as of the
Effective Date and as of the Closing Date with the same force and effect as if made at that time
and all such representations and warranties shall survive Closing. From and after the Closing
Date, Seller shall indemnify and hold harmless Buyer from and against any and all claims,
demands, liabilities, costs, expenses, damages or other losses, including reasonable attorneys'
fees, arising out of any misrepresentation or breach of any representation or warranty given by
Seller in this Agreement or in any document delivered by Seller to Buyer at Closing pursuant to
or in accordance with this Agreement. Except for the representations and warranties expressly
set forth in this Section 8, and subject to Seller's Work required under this Agreement, this
transaction is on an AS -IS, WHERE -IS basis, with no representations or warranties from Seller
with respect to the condition of the Property.
9. Title Evidence and ALTA Survey. Within thirty (30) days after the Effective
Date, Seller shall deliver or cause to be delivered to Buyer a current written commitment from
the Title Company (underwritten by Old Republic National Title Insurance Company, or another
national underwriter mutually acceptable to Buyer and Seller) for issuance at Closing of a 2006
form ALTA owner's policy of title insurance covering the Property in the amount . of the
Purchase Price (the "Title Commitment "), together with copies of all exception documents
referenced therein. If the Title Commitment or any survey of the Property contains any matters,
which are not acceptable to Buyer in Buyer's sole discretion, then Buyer shall notify Seller in
writing of such objections within the Inspection Period. Any matters to which Buyer does not
timely object shall constitute "Permitted Exceptions" under this Agreement, and Buyer shall be
conclusively deemed to have waived its right to object thereto. Seller shall have fifteen (15)
days after receipt of any written title or survey objections from Buyer to cure such objections, to
give written notice that such objections will be cured at Closing or to give written notice (a
"Non -Cure Notice ") that Seller cannot or will not cure specified objections. If Seller delivers a
Non -Cure Notice, then Buyer may elect in Buyer's sole discretion to terminate this Agreement
(in, which event the Earnest Money shall be refunded to Buyer) or to waive the objections
specified in the Non -Cure Notice (in which event such objections shall then be deemed Permitted
Exceptions). In no event may Seller issue a Non-Cure Notice with respect to any title objections
relating to mortgages or liens that can be cured by the payment of money, all of which mortgages
or liens must be satisfied at or prior to Closing.
10. Seller's Work. [Intentionally Omitted.]
11. Casualty /Damage. Buyer acknowledges the Property is undeveloped land.
Seller shall maintain the Property until the Closing Date in materially the same condition as of
the Effective Date, subject to ordinary wear and tear of any existing improvements. Seller shall
notify Buyer promptly if the Property is damaged by casualty or otherwise. If prior to the
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Closing Date, the Property is damaged in an amount of not more than five percent (5 %) of the
Purchase Price, Seller shall be obligated to repair the Property and restore it to the same
condition that it was on the Effective Date. If the damage shall exceed five percent (5%) of the
Purchase Price, Buyer may terminate this Agreement by written notice to Seller given within
thirty (30) days of Buyer receiving written notice from Seller of the taking, whereupon the Title
Company shall immediately return the earnest money to Buyer and, upon Buyer's receipt
thereof, neither party hereto shall have any further rights against or obligations to the other under
this Agreement. If Buyer elects to close the transaction, then Seller shall assign to Buyer at
Closing all insurance proceeds (or rights thereto) relating to the damage and a credit towards the
Purchase Price equal to the amount of Seller's deductible.
12. Eminent Domain. If prior to the Closing Date, all or any portion of the Property
is taken by, or made subject to, condemnation, eminent domain or other similar proceedings
(including a deed in lieu thereof), then Buyer, in its sole discretion, may elect as follows:
(a)
(b)
Buyer may terminate this Agreement by written notice to Seller given
within thirty (30) days of Buyer receiving written notice from Seller of the
taking, whereupon the Title Company shall immediately return the earnest
money to Buyer and, upon Buyer's receipt thereof, neither party hereto
shall have any further rights against or obligations to the other under this
Agreement.
Buyer may agree to close and deduct from the Purchase Price an amount
equal to any sum paid to Seller for such conveyance or in the event. Seiler
has not yet received such sums, Seller shall assign, transfer and set over to
Buyer all of Seller's right, title and interest in and to any awards which
may in the future be made on account of such conveyance.
13. Use Restriction. At the Closing Date, Seller shall execute and deliver to Buyer
a use restriction (the "Use Restriction ") that prohibits any other land located adjacent to the
Property (including any land across a roadway) that is owned by Seller or any affiliate of Seller
as of the Effective Date, from use as a Financial Institution (as defined below) as long as the
Property, from and after completion of Buyer's initial improvements, is used as a Financial
Institution (subject to temporary closures for renovations, repairs and restoration of casualty
damage). Notwithstanding the foregoing, a grocery store may operate a Financial Institution
within the grocery store, provided that said grocer will not allow the installation of a drive -
through banking facility or locate an ATM outside of the building. ATM machines shall be
permitted so long as they are located and accessed wholly within the interior of a building for
which the main purpose is something other than providing ATM access. The term "Financial
Institution" shall mean: (i) any bank, savings bank, trust company, savings and loan association
or credit union licensed, chartered or otherwise authorized to do business under federal or state
law; or (ii) any similar operation in the business of making loans and /or accepting deposits, but
shall not include tax preparation businesses.
14. Reci rocal Ea A Yreement. If desired by Buyer, Seller shall cooperate
and assist the Buyer in the execution and recording of a reciprocal easement agreement relating
to the Property and the adjoining shopping center development (collectively, the
"Development "), which shall provide for, among other things, rules and regulations for the
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management and integration of the Development and the various parcels that comprise the
Development, including without limitation provisions relating to ingress to and egress from the
Development, use of parking and co mmo n areas, drainage of the Development and co ammo n
utilities (the "REA "). Seller agrees that Buyer may reserve all parking on the. Property for the
exclusive use of Buyer's customers and may install parking signage accordingly.
15. Signage/Flagpole, Seller agrees that Buyer shall have the right to install signage
on the exterior of the building located (or to be constructed) on the Property, as well as
monument and/or pylon signage and a flagpole on the Property, provided all signage and
flagpole installations comply with applicable state, county and municipal code requirements.
Seller agrees that Buyer may use its registered logo /trademark on any such signage. Seller
further agrees to assist Buyer in obtaining any signage and/or flagpole approvals that may be
required by the municipality.
16. Closing Deliveries and Prorations. At Closing, Buyer shall deliver to the Title
Company wired funds or other immediately available funds in the amount of the Purchase Price,
as adjusted by any prorations and closing costs provided for herein, and such affidavits,
resolutions and other documents agreed between the parties, required for a legal conveyance of
real estate in the state where the Property is located or otherwise required by the Title Company
to issue the Policy.
At Closing, Seller shall deliver to the Title Company a Special Warranty Deed conveying
the Property to Buyer, subject only to the Permitted Exceptions, a non - foreign status affidavit, a
statement re- certifying Seller's representation and warranties, and such affidavits, resolutions
and other documents agreed between the parties, required for a legal conveyance of real estate in
the state where the Property is located or otherwise required by the Title Company to issue the
Policy. Possession of the Property shall be delivered to Buyer on the Closing Date.
Buyer shall pay for recording the deed, and Seller shall pay for recording any documents
required to release existing liens and encumbrances. Seller shall pay all costs to prepare and
issue the Title Commitment and Policy, including search fees. Buyer shall pay for all other
endorsement charges and the title insurance premium for any loan policy, including endorsement
charges related thereto. All escrow fees and title company closing charges shall be shared
equally by Seller and Buyer. Buyer shall pay all fees in connection with permitting and
development of the Project. All other closing costs, including without limitation transfer taxes
and other recording fees, shall be allocated as customary in the state in which the Property is
located,
17. Default Remedies. If this transaction fails to close due to a default by Seller in
the performance of this Agreement, Buyer shall have the right to either: (i) terminate this
Agreement upon written notice to Seller, in which event the earnest money shall be returned to
Buyer; or (ii) seek specific performance of this Agreement. If this transaction fails to close due
to a default by Buyer in the performance of this Agreement, Seller shall have the right to either:
(i) terminate this Agreement upon written notice to Buyer, in which event the earnest money
shall be disbursed to Seller; or (ii) seek specific performance of this Agreement.
18. Broker Commissions. Each party represents to the other that it has not engaged
the services of a real estate agent or broker in connection with this transaction that would result
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in payment of a brokerage commission, other than Stefanie Meyer of United Properties who
represents Buyer. Seller agrees to pay all real estate brokerage commissions due to United
Properties and any Seller's broker in connection with this transaction.
19. Notices. Any notice permitted or required pursuant to this Agreement shall be in
writing and shall be deemed given or served in accordance with the provisions of this Agreement
if personally delivered, if mailed by United States mail, certified mail, postage prepaid, or if sent
by a nationally recognized overnight courier service, addressed to the parties as follows:
If to Seller: Peter R. Houser
11321 Landing Road
Eden Prairie, MN 55347 -4953
Cell Phone: 952 - 412-2924
With a copy to: Wayne A. Vander Vort
4525 Gilford Drive
Edina, MN 55434
Cell Phone: 642-597-3038
If to Buyer: M&I Marshall & Ilsley Bank
Attn: Corporate Real Estate
770 North Water Street
Milwaukee, WI 53202
With a copy to: Jennifer L. Vailier
Godfrey & Kahn, S.C.
780 North Water Street
Milwaukee, WI 53202
Each such notice will be deemed to have been given upon delivery if personally delivered, two
(2) business days after deposit if mailed by United States mail, certified mail, postage prepaid, or
one (1) business day after deposit with an overnight courier service, charges prepaid.
20. Successo and Assif s This Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, successors and assigns. Each Buyer and Seller
may assign this Agreement upon written notice to the other.
21. Miscellaneous. The following general provisions govern this Agreement.
('a)
No Waiver. The waiver by either party 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. Either
party, in its sole discretion, may waive any right conferred upon such party
by this Agreement; provided that such waiver shall only be made by
written notice specifically describing the right waived.
(b) Time of Essence. Time is of the essence of this Agreement.
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(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.
(d) Severability. 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.
(e)
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 modified
only in writing signed by both of the parties hereto.
Counterparts and Facsimile Signatures, This Agreement may be executed
in counterparts, and all such executed counterparts shall constitute the
same agreement. A facsimile signature on this Agreement shall be
deemed an original and shall be binding against any party whose signature
is set forth on such facsimile copy.
TN WITNESS WHEREOF, the parties have executed this Agreement to be effective as
of the date first set forth above.
SELLER:
Peter R. Houser
arbara A. Houser
BUYER:
M &I MARSHALL & ILSLEY BANK
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By:
Name:
Title: C ; t
9
Attest:
Name: t
Title: _ " 7-- 2; e—
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EXHIBIT A
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EXHIBIT B
LEGAL DESCRIPTION OF THE PROPERTY
Lot Two (2), Block One (1), Wal -Mart Addition, Washington County, Minnesota, except
the North 18.48 feet thereof.
Certificate of Title #46607
Tax Identification #05- 029 -20 -12 -0033
3045739.3