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HomeMy WebLinkAbout2012-12-07 Weekly Notes Reference - Noting & Enclosing Final Land PA Between MNDOT & Xcel for Phills Parking Lot CITY OF OAK PARK HEIGHTS Mem / o TO: City Council Members FROM: Eric Jo nson •ministr. or WEEKLY.NOTES — December 7, 2012 Upcoming Meetings and Workshops Listing through January 28 , , "013 Zoning / Development Items 1. The Building Official has sent notices to property owners advising them that they are in need of constructing a parking pad on their property as opposed to parking on the lawn. Also, notice has been sent to HSBC Mortgage regarding the property at 14908 Upper 55 Street regarding non- maintenance of the yard and safety condition of a handrail /deck. ; should the City be require to abate this nuisance the City will assess a tax against the property in 2013. Lastly a notice has been sent to the Sunview IV apartment building at 14820 57 Street N regarding the condition of their trash enclosures and debris. 2. Staff has received a very rough plan from the Fury Motors architect showing a concept sketch of how they would envision a new frontage roadway, see enclosed and how their new construction may work with this. Staff will be meeting with Washington County and State persons to further discuss the feasibility of this concept. 3. Staff worked extensively with the bank who now owns the l3uberl's site so to ensure that the site is beginning to get cleaned up. FYI- there was a fire there last weekend in the various compost piles. The debris and equipment placed on the neighboring site to the north as owned by a different bank has now been cleaned —up. Rybak Companies is working for Premier Banks to spread mulch at Buberls in the township. They do have an OPJ-I Hydrant permit for water use. It is possible that people may smell burnt mulch as the company spreads the piles about the site. St. Croix River Crossinn: Councilrnember McComber asked that the City request that MNDOT consider additional safety lighting advanced warning flashers and pedestrian flashers at the west -bound approaches to Osgood Ave from STh 36 See the enclosed Oct 24"' communication to Jon Chiglo. Mr. Chiglo did respond declining MNDOT's ability to accommodate these requests, see Mr. Chiglo' s letter also enclosed. As mentioned a few months ago, MNDOT will be seeking to purchase two properties from the City so that construction may proceed. In the interim MNDOT staff has sought a temp. right of access so that construction can begin in spring prior to any final land sale. Staff has responded to MNDOT with some suggested language to make this transaction proceed. 1 would expect this to be on your Dec 27' City Council Agenda for final consideration. (1 have enclosed maps of the two areas.) For your records, I have enclosed a copy of the final land purchase agreement from MNDOT and Xcel Energy for the Phil Tara's parking lot. Reminder, Mr. Chiglo did commit to installing a trail way berm along the south side of this slope so that City park goers can access the site. OTHER ITEMS: • Washington County CDBG staff has requested that the City provide some additional information regarding its application for funding to construct a trail along Osgood Ave from STH 36 to 55 Street. I have responded to those inquires and have copied those responses herein. 1 of 78 Police Activity Report — From Chief DeRosier Nov 2012 • Execution Copy PURCHASE AGREEMENT THIS PURCHASE AGREEMENT this "Agreement ") is made and entered into as of this day of November, 2012, by and among Northern States Power Company, a Minnesota corporation ( "Seller "), Barbatsis Property LLC, a Minnesota limited liability company ( "Purchaser "), the State of Minnesota through the Department of Transportation ( "MnDOT"), and the City of Oak Park Heights, a Minnesota municipal corporation ( "City "). The "Effective Date" of this Agreement shall be the date when all parties hereto have executed and delivered this Agreement. RECITALS Seller is the owner in fee simple of 27.977 acres of land ( "Seller's Land ") located in the City of Oak Park Heights, County of Washington, and State of Minnesota, as legally described in the attached Exhibit A. Seller's Land is subject to a license agreement with the City dated June 21, 2012 (the "License Agreement ") which allows the City to use Seller's Land for city park purposes. Much of Seller's Land is a coal ash landfill facility that is no Ionger in operation and which has been closed under the supervision and authority of the Minnesota Pollution Control Agency ( "MPCA "). As part of the closure process, Seller constructed a cap over the landfill to protect the environment. The landfill cap cannot be punctured or disturbed. Purchaser is the owner of certain property at 15021 North 60th Street in the City of Oak Park Heights, MN ( "Purchaser's Existing Property"), which is located north and westerly of Seller's Land and is described in the attached Exhibit B. Purchaser operates a restaurant on Purchaser's Existing Property known as Phil's Tara Hideaway ( "Phil's "). Phil's, previously known as The Log Cabin Restaurant and as Club Tara, has been designated as a site eligible for inclusion on the National Register of Historic Places. MnDOT, in cooperation with other parties, intends to undertake certain improvements to North 60 Street near Phil's as part of the project to construct a new bridge across the Saint Croix River ( "Saint Croix Crossing Project "). With respect to the Saint Croix Crossing Project, MnDOT is a party to the 2006 Amended Section 106 Memorandum. of Agreement between the Federal Highway Administration, the U.S. Army Corps of Engineers, the Advisory Council on Historic 1 • 19 of 78 Preservation, and the Minnesota and Wisconsin State Historic Preservation Officers relating to the preservation of certain historic sites, buildings, and features that are within the Saint Croix River Crossing Project area ( "Section 106 MOA "). In the Section 106 MOA, MnDOT, among other things, agreed to develop parking east of Purchaser's Existing Property and to work cooperatively with the City and Seller to provide Phil's with a parking lot to replace on- street parking that will be lost when MnDOT improves North 60 Street. MnDOT has developed its parking lot project S.P.8214- 1124AB with complete plans and specifications which defines the construction of the parking lot at the Real Property (the "Work "). The "Work" includes grading, installation of bituminous surfacing, concrete, curbing and lighting for a parking lot, with surcharging of the grading as a component of the Work. MnDOT and the City have requested that Seller allow MnDOT access to a portion of. Seller's Land for the purpose of constructing a parking lot for Phil's and for use by the City pursuant to the terms of the License Agreement. Seller is willing to do so provided that fee title to that portion of Seller's Land upon which the parking lot will be located is conveyed to Phil's upon the conditions set forth herein. The City is willing to release a portion of the Seller's Land from the License Agreement. The portion of Seller's Land to be purchased by Purchaser and sold by Seller is further described in paragraph 1.0 hereof, together with all rights, privileges, easements, tenements, hereditaments, and appurtenances belonging thereto, shall hereinafter be referred to as the "Real Property". Seller desires to convey the Real Property to Purchaser and Purchaser wishes to purchase same pursuant to the conditions set forth in this Agreement. AGREEMENT In consideration of the mutual covenants and agreements contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1.0 Real Property to be Purchased. Subject to compliance with the terms and conditions of this Agreement, Seller shall sell to Purchaser and Purchaser shall purchase from Seller the Real Property. The Real Property shall front on North 60 Street, shall be contiguous to and abut Purchaser's Existing Property, and shall consist of approximately 71,000 square feet of Seller's Land. A legal description and a certified survey map of the Real Property shall be provided to Seller and Purchaser by MnDOT by written notice in the form of attached Exhibit C 2 20of78 • not later than November 15, 2012. The written notice to Seller designating the Real Property shall be attached to this Agreement as a substituted Exhibit C. Upon receipt of the foregoing legal description and certified survey map, Purchaser shall complete and submit to the City an application for minor subdivision approval to divide the Real Property from the Seller's Land. Seller shall have no responsibility for payment of any fees associated with the minor subdivision process as set forth in City ordinances and regulations, except as specifically set forth herein. The City agrees that this transaction will not require the payment of a park dedication fee nor cause an increase in existing stoimwater utility fees. These fees may become payable by the Purchaser, or its successors, should there be any future redevelopment of the Real Property that may trigger such payment requirements. Purchaser shall be solely responsible for payment of all City fees and reimbursement of City costs associated with or arising from the transaction described in this Agreement, the minor subdivision application process, the negotiation and execution of this Agreement, the construction of the parking lot, the Work, or the Deed of Appurtenant Easement referenced in paragraph 12.4 below, including without limitation, all attorneys' fees, staff costs, inspection and permit fees, and third party consulting fees. 2.0 Purchase Price. 2.1 The Purchase Price for the Real Property shall be its fair market value (the "Purchase Price "). The fair market value shall be established as set forth in Paragraph 2.2. The Purchase Price shall be payable in cash or by certified funds or the equivalent on the Date of Closing (as hereafter defined). 2.2 The fair market value of the Real Property shall be the Purchase Price. The fair market value of the Real Property shall be established by an appraiser selected by MnDOT, the cost of which shall be borne by MnDOT. In the event Seller objects to the appraisal, Seller may obtain a second appraisal at its own expense. MnDOT and the Seller shall endeavor to reconcile the two appraisals and attempt to establish a mutually agreed upon fair market value of the Real. Property. In the event that Seller and MnDOT are unable to agree upon the Purchase Price, the two appraisers as so selected, shall select a third appraiser to appraise the Real Property, the cost of which shall be borne equally by Seller and MnDOT. If the determinations of at least two of the appraisals are identical in amount, such amount shall be deemed the fair market value of the Real Property. If the determinations of the three appraisals shall be different in amounts, the fair market value of the Real Property shall be determined as follows: (a) If neither the highest nor lowest appraisal differs from the middle appraisal by more than ten percent (10 %), the fair market value shall be deemed to be the average of the three appraisals; and 3 21 of 78 (b) If clause (a) does not apply, then the fair market value of the Real Property shall be deemed to be the average of the middle appraisal and the appraisal closest in amount to such middle determination. Each appraiser must be a member of the American Institute of Real Estate Appraisers ( "MAI "), shall have a minimum of ten (10) years' experience in the area of commercial or industrial appraisals in the county in which the Real Property is located, and shall not be an employee or former employee of either Seller or MnDOT or any affiliate thereof. In the instance where two appraisers select a third appraiser, the two appraisers shall share with the third appraiser all research, documents and other inforrnation acquired by them with respect to their appraisal of the Real Property. Each party shall pay the cost of the appraisal obtained by such party and the parties shall share equally the fees and other charges of the third appraiser. The fair market value of the Real Property shall be determined on the basis of an all -cash sale without reduction for any lien or encumbrance. 3.0 Title To Be Delivered. Seller agrees to convey to Purchaser marketable fee simple title to the Real Property subject only to the permitted encumbrances ( "Permitted Encumbrances") set forth on attached Exhibit D. 4.0 Evidence of Title. Within thirty (30) days after the Effective Date or such other time period as may be specified in this paragraph: 1 4.1 Seller shall cause to be issued and delivered to Purchaser a commitment for an owner's title insurance policy (the "Commitment ") issued by First American Title Insurance Company (the "Title Company ") pursuant to which the Title Company agrees to issue to the Purchaser upon the recording of the documents of conveyance an owner's title insurance policy in the full amount of the Purchase Price, with preprinted exceptions for matters of survey, parties in possession and unfiled mechanic's or materialmen's liens deleted. The Commitment shall include proper searches covering bankruptcies, state and federal judgments and liens and levied and pending special assessments and shall be accompanied by copies of all recorded documents presently affecting the Real Property and which will constitute encumbrances against the Real Property on the Date of Closing. 4.2 MnDOT shall provide the legal description of the Real Property and a certified survey map, prepared by a land surveyor licensed by the State of Minnesota (the "Certified Map "). The Certified Map and legal description shall be approved by the Washington County Land Surveyor's Office, the City, Title Company, Seller, and Purchaser and shall be sufficient to complete the minor subdivision process as described herein. MnDOT shall obtain the approvals of Washington County and 4 22 of 78 Title Company to the minor subdivision of the Real Property from the balance of Seller's Land. Purchaser shall have twenty (20) days after receipt of all of the above title evidence to make any objections to title in writing to Seller, or be deemed waived. Seller shall have sixty (60) days to have such objections removed or satisfied. If Seller shall fail to have such objections removed within said tune, Purchaser may, at its sole election: (a) terminate this Agreement without any liability on its part in exchange for a quit claim deed for the Real Property; (b) if the objections are liens that may be removed by the payment of sums of money, take title to the Real Property pursuant to the teams of this Agreement and discharge any such liens and deduct the same from the cash due and payable on the Date of Closing; or (c) take title to the Real Property subject to such objections. Seller agrees to use its best efforts to satisfy any such objections. 5.0 Control of Real Property. Until the Date of Closing, Seller shall have the full responsibility and the entire liability for any and all damages or injuries of any kind whatsoever to the Real Property except: (a) liability arising directly from the negligence of Purchaser, its agents or employees, (b) the City's liability as set forth in the License Agreement, and (c) MnDOT "s liability as set forth further in paragraph 18 below. If, prior to the Date of Closing, all or a portion of the Real Property shall be the subject of an action in eminent domain or a proposed taking by a governmental authority or another authority with the power of eminent domain, whether temporary or permanent, Purchaser, at its sole election, shall have the right to terminate this Agreement without liability on its part, by so notifying Seller in exchange for a quit claim deed for the Real Property. 6.0 Representations and Covenants of Seller. As an essential part of this Agreement and in order to induce Purchaser to enter into this Agreement and purchase the Real Property, Seller hereby represents and warrants to Purchaser: 6.1 Seller is duly incorporated and is in good standing under the laws of the State of Minnesota; Seller is duly qualified to transact business in the State of Minnesota; Seller has the requisite corporate power and authority to enter into and perform this Agreement. 6.2 Seller owns the Real Property, free and clear of all encumbrances except the Permitted Encumbrances identified on Exhibit D attached hereto. 6.3 Seller has not entered into any other contracts for the sale of the Real Property nor are there any rights of first refusal or options to purchase the Real Property or any other rights of others that might prevent the consummation of this Agreement. 6.4 Seller is not aware of any action, litigation, investigation, condemnation or proceeding of any kind, pending or threatened, against Seller or any portion of the 5 23of78 Real Property which will limit Seller's ability to perform in accordance with the terms of this Agreement. 6.5 Seller warrants that the Seller does not know of any "Wells" on the described Real Property within the meaning of Minn. Stat. Chapter 103I. Seller certifies and warrants that it does not know of any individual sanitary treatment systems or "septic systems" on the Real Property. To Seller's knowledge, methamphetamine production has not occurred at the Real Property. Seller discloses that any applicable airport zoning regulations affecting the Property are available for review at the Washington County Courthouse. 6.6 No above ground or underground storage tanks are now located in or on the Real Property. 6.7 Seller is not a foreign person; as such term is defined in Section 1445(0(3) of the Internal Revenue Code of 1986, as amended, and shall deliver an affidavit to that effect at closing, which shall be in form and substance reasonably acceptable to Purchaser. 6.8 Seller has operated the Land as a landfill for coal ash in conjunction with its operation of the nearby Allen S. King power plant. The landfill may contain Hazardous Substances, as defined by applicable law. The landfill has been closed under the oversight authority of the MPCA and as part of the closure process; Seller has constructed an environmental cap over the landfill. A portion of the landfill and the cap extend into the Real Property. After Closing, Seller shall retain its obligations under Permit SW -54 issued by the MPCA, the facilities closure plan, past closure plan, and contingency action plan. The Real Property shall be conveyed subject to an easement providing Seller with perpetual access to the Real Property for purposes of monitoring and maintaining the environmental . cap; a perpetual enviromnental restrictive covenant to protect the environmental cap and landfill, and also subject to the following release which shall be incorporated into the Limited warranty deed: In consideration of the foregoing, Grantee or its successors and assigns shall forever release, covenant not to sue, and forever discharge Grantor and Grantor's successors, assigns, parent corporations, predecessor entities, subsidiary entities and related entities, and all present or former employees, agents, officers, directors and shareholders, any or all of them, from and for any and all existing or potential demands, causes of action, equitable or legal claims, obligations, damages, losses, penalties and Iiabilities of any nature whatsoever, whether asserted, or unasserted, known or unknown 6 24 of 78 brought by Grantee or Grantee's successors or assigns arising out of or related to any contamination of the soil, subsurface, or groundwater by any Hazardous Substances, as defined by applicable law, at, in, under, or emanating from or affecting the Real Property. As used in this Agreement, the term, "Hazardous Substance or Substances" means any hazardous, special, solid or toxic substances, materials or wastes, including, but not limited to those substances, materials, and wastes listed in the United States Department of Transportation's Hazardous Materials Table (49 CFR Part 172.101) or by the United States Environmental Protection Agency as hazardous substances (40 CFR Part 302) and amendments thereto, or such hazardous, special, solid or toxic substances, materials and wastes which are or become regulated under applicable local, state, or federal law, ordinance or regulation. Without limiting the foregoing, Hazardous Substances shall include, but not be limited to: (i) oil, including but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes; (ii) asbestos; (iii) polychlorinated biphenyls ( "PCBs "); (iv) coal combustion residuals or coal; (v) substances designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 USC § 1321 or pursuant to Section 307 of the Clean Water Act, 33 USC § 1317; (vi) substances designated as a "hazardous waste," "special waste," or "solid waste" pursuant to the Resource Conservation and Recovery Act, 42 USC § 6903, as amended; (vii) substances designated as "hazardous substances" pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC § 9601 et seg., as amended; (viii) substances listed as a hazardous material, substance or related material in the Hazardous Materials Transportation Act, as amended, 40 USC § 1801, et seg., as amended; (ix) substances listed as a hazardous air pollutant pursuant to the federal Clean Air Act, 42 USC § 7401 et seg., as amended; or (x) all applicable state and local counterparts to all of the foregoing together with their implementing regulations, all as amended from time to time. 6.9 Seller shall deliver to Purchaser a written notice of the commencement of any legal action by any governmental authority or third party affecting the Real Property and will make no concessions or settlements with respect to any such action without Purchaser's prior written consent. The representations and warranties set forth in this section shall be continuing and shall be true and correct as of the Date of Closing with the same force and effect as if made at that time. All such representations and warranties shall survive closing and shall not be merged in the delivery and execution of the deed or other instruments of conveyance called for in this Agreement. 7 25of78 As a material part of the consideration for this Agreement, Purchaser agrees that Purchaser is taking the Property in "AS -IS" condition as of the Date of Closing, with any and all latent and patent defects and that there is no warranty by Seller that the Real Property is fit for any particular purpose. Purchaser acknowledges that it is not relying upon any representation, statement or other assertion with respect to the Real Property or its condition, but is relying upon its examination of the Real Property. Purchaser agrees that if Purchaser closes on this transaction, Purchaser takes the Real Property under the express understanding that there are no express or implied warranties. The provisions of this section shall survive the closing of this transaction. 7.0 Representations and Warranties by Purchaser. Purchaser represents and warrants to Seller that Purchaser is duly organized and is in good standing under the laws of the State of Minnesota; that Purchaser is duly qualified to transact business in the State of Minnesota; that Purchaser has the requisite corporate power and authority to enter into this Agreement and the Purchaser's Closing Documents signed by it; such documents have been duly authorized by all necessary corporate action on the part of the Purchaser and have been duly executed and delivered; that the execution, delivery and performance by Purchaser of such documents do not conflict with or result in the violation of Purchaser's Articles of Incorporation or Bylaws or any judgment, order or decree of any court of arbitrator to which Purchaser is a party; such documents are valid and binding obligations of Purchaser, and are enforceable in accordance with their terms. 8.0 Purchaser's Conditions to Closing. The closing of the transaction contemplated by this Agreement and the obligation of the Seller to sell the Real Property and of the Purchaser to purchase the Real Property shall be subject to the following conditions: 8.1 On or before the date that is 30 days after the Effective Date, Purchaser shall determine, in its sole discretion, that it is satisfied with the results of its inspection of the Real Property that Purchaser in its sole discretion may choose to conduct. 8.2 On or before December 31, 2012, approval, granting and issuance by the appropriate governmental jurisdictions of all necessary permits, approvals, easements and licenses necessary for the development and use of the Real Property by Purchaser for its intended use of the Real Property as a parking lot ( "Intended Use "), including, without limitation, any rezoning or conditional use permits, access permits, land divisions, and lot combination, building and business permits, zoning or building code variances, access and utility easements and any design or other necessary approval of Purchaser's development plans. 8.3 Seller and Purchaser shall have satisfactorily complied with the terms and conditions of this Agreement and executed and delivered the documents and the instruments by the Date of Closing. 8 26 of 78 • 8.4 Title to the Real Property owned by Seller free and clear of all encumbrances except the Permitted Encumbrances as of the Date of Closing. 8.5 The Real Property shall not have been adversely affected in any material way as a result of condemnation, fire, release of hazardous substances, accident or other casualty or act of God, or act of a public enemy, whether or not covered by insurance as of the Date of Closing. 8.6 No suit, zoning change, governmental investigation or other proceeding challenging the transactions contemplated hereby, or which might affect the right of Purchaser to own the Real Property or use the Real Property after the Date of Closing, shall have been threatened or instituted. 8.7 On or before the date that is 60 days after the Effective Date, Purchaser shall have applied for and received a No Association Determination from the MPCA relating to Purchaser's intended use of the Real Property as a parking lot. All contingencies set forth in this paragraph are specifically for the sole and exclusive benefit of the Purchaser and only the Purchaser shall have the right to unilaterally waive any of the foregoing conditions. With respect to the above conditions in favor of Purchaser, Purchaser shall give written notice to all parties of its desire to terminate this Agreement for failure to fulfill any of said conditions on or before the Date of Closing or such earlier dates as specified in paragraph 8.0 the Date of Closing or such earlier dates specified in this paragraph 8.0 are collectively referred to as the "Contingency Dates "). If this Agreement shall be so terminated on or before the applicable Contingency Dates, Purchaser shall provide Seller with a quit claim deed for the Real Property and no party hereto shall have further rights and obligations hereunder, other than as set forth in paragraph 18.0. In the event no notice of termination is given within the specified time period with respect to any such section hereof, such condition shall be deemed to be waived by Purchaser and Purchaser shall proceed to closing in accordance with the other terms and conditions hereof. 9.0 Seller's Conditions to Closing. The closing of the transaction contemplated by this Agreement and the obligation of the Seller to sell the Real Property and of the Purchaser to purchase the Real Property shall be subject to the following conditions in favor of Seller: 9.1 The MPCA and Seller shall have agreed to the terms of and shall have executed an Environmental Covenant, as that term is defined by Minn. Stat. Chapter 114E encumbering the Real Property in perpetuity upon terms and conditions acceptable 9 27of78 • to Seller and protective of the environmental conditions, the environmental cap, and the closed landfill at the Real Property. 9.2 Seller shall have obtained partial releases of the License Agreement and Seller's Conditional Use Permit releasing the Real Property from same. 9.3 The City shall have approved Seller's application to the City for the minor subdivision of the Real Property from the balance of the Seller's Land and the combination of the Real Property with the Purchaser's Existing Property. 9.4 The MPCA shall have consented to the transfer of the Real Property, and any aunendments to Seller's landfill permits necessary to effectuate the transfer, 9.5 Seller shall have received the consent of the trustee to the release of the Real Property from the Trust Indenture and any necessary regulatory approvals. 9.6 The Purchase Price shall have been established pursuant to the procedure set forth in paragraph 2.2 above. 9.7 On or before the date that is 10 business days after the Performance Date, and upon Seller or Purchaser providing a written statement of closing costs, MnDOT will deposit the Purchase Price and all other closing costs for which MnDOT is responsible into escrow with the Title Company. 9.8 Seller and Purchaser shall have satisfactorily complied with the terms and conditions of this Agreement and executed and delivered the documents and the instruments by the Date of Closing. With the exception of paragraphs 9.7 and 9.8, all of foregoing conditions must be satisfied or waived or waived in writing by Seller on or before June 30, 2013 (the "Performance Date "). Seller shall give written notice to all parties of its desire to terminate this Agreement for failure to fulfill any of said conditions on or before the date that is three (3) business days after the Performance Date or such later date as specified in paragraphs 9.7 and 9.8. If this Agreement shall be so terminated, Purchaser shall provide Seller with a quit claim deed for the Real Property and none of the parties hereto shall have further rights and obligations hereunder, other than as set forth in paragraph 18.0. In the event no notice of termination is given within the specified time period, such condition shall be deemed to be waived by Seller and Purchaser shall proceed to closing in accordance with the other terms and conditions hereof. 10.0 Closing. The closing hereof shall take place on the date that is on or before the date that is 20 days after the Performance Date or if earlier, the date when Seller waives all of its conditions to Closing as set forth in paragraphs 9.1 through 9.6 above (the "Date of Closing "). 10 28 of 78 Notwithstanding the foregoing, the Date of Closing must be on or before July 15, 2013. The closing shall take place through escrow or at the offices of Frediikson & Byron, P.A. or such other place as the Seller and Purchaser may reasonably determine. Possession of the Real Property shall be delivered on the Date of Closing. 11.0 Seller's Obligations at Closing. On or prior to the Date of Closing, Seller shall: 11.1 Execute, acknowledge and deliver to Purchaser a limited warranty deed to the Real Property conveying to Purchaser marketable fee simple title to the Real Property and all rights appurtenant thereto subject only to the Permitted Encumbrances. 11.2 Deliver to Purchaser an affidavit of the Seller in recordable form identifying the Seller as the owner of the Real Property free and clear of all encumbrances except the Permitted Encumbrances, that all work, labor, services and materials furnished to or in connection with the Real Property have been fully paid for so that no mechanic's, materialmen's, or similar lien may be filed against the Real Property. 11.3 Deliver to Purchaser such other documents as may be required by this Agreement. 11.4 Deliver to the Company a release in recordable form of any indenture of trust encumbering the Real Property. 12.0 Purchaser's Obligations at Closing. At closing and subject to the terms, conditions, and provisions hereof and the performance by Seller of its obligations as set forth above, the Purchaser shall: 12.1 Cause to deliver to Seller the Purchase Price then due and payable by wire transfer, certified or cashier's check or equivalent. 12.2 Execute and deliver to Seller such other documents as may be required by this Agreement. 12.3 Execute and record all such doeurnents required by the City and Washington County to combine the Real Property with the Purchaser's Existing Property. 12.4 Execute a Deed of Appurtenant Easement in recordable form as approved by the City Attorney granting the City certain rights to use the parking lot to be constructed at the Real Property (the "Easement "). 13.0 Closing Costs and Fees. The following costs and expenses shall be paid as follows in connection with the closing: 11 29 of 78 13.1 Seller shall pay: (a) The cost of issuing the Commitment and the cost of copies of all additional title documents necessary for the examination of title. (b) The cost of preparation of the deed and other documents of conveyance. (c) State Deed Tax upon delivery of the limited warranty deed to Purchaser. (d) Seller's attorneys' fees. (e) The cost of recording the satisfaction of any existing mortgage or deed of trust and any other document necessary to make title marketable, as required herein. (f) One -half (1/2) the closing fee charged by the Title Company. (g) Up to, but not more than, one - thousand five hundred dollars ($1,500.00) to Purchaser to reimburse Purchaser for its documented payment(s) to the City for minor subdivision application fees and related City reimbursement expenses. At Purchaser's request, Seller shall advance to Purchaser the sum of seven hundred dollars (,$700.00) to cover Purchaser's initial application fees paid to the City with its application for minor subdivision approval. 13.2 Purchaser shall pay the following costs in connection with the closing: (a) Any recording fee to record the deed, Easement and any lot combination documentation. (b) Purchaser's attorneys' fees. (c) One -half (1/2) the closing fee charged by the Title Company. 13.3 MnDOT shall pay: (a) The full amount of the Purchase Price to be paid to Seller. (h) The cost of preparing the legal description and Certified Map. 12 30 of 78 (c) Necessary and reasonable escrow fees imposed by the Title Company as a result of MnDOT's election to commence performance of the Work prior to the Date of Closing, subject to the encumbrance of funds for such purpose as required by the Title Company. Prior to paying any such fees, MnDOT will work with the Title Company to provide alternate means of assuring that the Work has not resulted in any liens or encumbrances upon the Real Property, such as providing documentation of contract payments, copies of contractor's bonds, and lien waivers. MnDOT will provide mechanics lien waivers to the Title Company at the Date of Closing upon request. 14.0 Taxes, Special Assessments, and Fees. Seller shall pay the real estate taxes relating to the Real Property which are due and payable in the years prior to the year in which closing takes place and its pro rata share of the real estate taxes due and payable in the year of closing based on the ratio that the Real Property bears to the Seller's Land and further, by the ratio that the number of days from January 1st to the Date of Closing bears to three hundred sixty -five (365) days. The balance of the real estate taxes due and payable in the year of closing and thereafter as to the Real Property shall be paid by Purchaser. Seller shall pay as of the Date of Closing all (i) existing, levied, pending and abated or deferred special assessments against the Real Property and (ii) abated or deferred real estate taxes relating to the Real Property. • 15.0 Brokerage. Each party hereto represents and warrants to the other parties hereto that it has not engaged the services of any broker in connection with the sale and purchase contemplated by this Agreement. 16.0 Default. 16.1 In the event that Seller should fail to close the transaction contemplated by this Agreement for any reason except for Purchaser's default or the failure of Purchaser or any other party hereto to satisfy any conditions to Seller's obligation hereunder, Purchaser, as its sole remedies, may either: (a) enforce the specific performance of this Agreement, which action must be commenced within six (6) months after the date of failure of Seller to consummate the transactions contemplated herein, or (b) cancel and terminate this Agreement and be relieved of its obligations hereunder. In any such event, Purchaser shall execute and deliver a quit claim deed for the Real Property. No delay or omission in the exercise of any right or remedy accruing to Purchaser upon any breach by Seller under this Agreement, except as otherwise provided in "(a)" above, shall impair such right or remedy or be construed as a waiver of any such breach theretofore or thereafter occurring. The waiver by Purchaser of any condition or the breach of any other 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 sane or of any 13 31 of 78 other term, covenant or condition herein contained. Purchaser waives all rights, powers, options or remedies afforded to Purchaser, either hereunder or by law or equity, except for the payment of liquidated damages or an action for specific performance as hereinbefore provided. 16.2 In the event that Purchaser shall fail to close the transaction contemplated herein for any reason, except the default by Seller or the failure of Seller to satisfy any of the conditions to the Purchaser's obligations set forth herein, the Seller, as its sole remedies, may either: (a) cancel and terminate this Agreement in the manner provided by applicable law and be relieved of its obligations hereunder, or (b) enforce the specific performance of this Agreement, which action must be commenced within six (6) months after the date of failure of Purchaser to consummate the transactions contemplated hereunder. No delay or omission in the exercise of any right or remedy accruing to Seller upon any breach by Purchaser under this Agreement, except as otherwise provided in "(b)" above, shall impair such right or remedy accruing to Seller upon any breach by Purchaser under this Agreement or be construed as a waiver of any such breach theretofore or thereafter occurring. The waiver by Seller 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. Seller waives all rights, powers, options or remedies afforded to Seller, either hereunder or by law or equity, except for the payment of liquidated damages or an action for specific performance as hereinbefore provided. 17.0 Access to Real Property and Inspection. At any time and from time to time prior to the Date of Closing, Purchaser and any person or persons selected by Purchaser shall be permitted access to the Real Property for the purpose of conducting such studies and investigations of the Real Property as Purchaser deems appropriate, which studies and investigations shall be conducted at Purchaser's sole expense. Notwithstanding the foregoing, Purchaser shall not conduct a "Phase II" environmental Site assessment, a geotechnical evaluation, or other subsurface investigation of the Real Property without first obtaining the consent of Seller. Purchaser shall notify Seller before entering the Real Property for the purposes set forth in this paragraph. Purchaser shall provide Seller with copies of any reports of inspections, or tests performed by Purchaser regarding the Real Property. Purchaser shall not have possession of the Real Property and shall not commence or make any improvements or do any other work until and unless the Real Property has been conveyed to Purchaser as provided herein. Purchaser shall defend, indemnify and hold Seller and the Real Property harmless from any loss or damage incurred by or any claims against Seller or the Real Property made in connection therewith. 18.0 Early Access; License for MnDOT 14 32 of 78 Upon full execution of this Agreement by all parties, Seller shall provide an executed Temporary Permit to Construct in the form of Exhibit E and license MnDOT to enter Real Property to perform the Work. Prior to entering the Real Property, MnDOT shall provide Seller with copies of all permits authorizing the Work and written verification that the MPCA has approved all of MnDOT's construction plans to take place on the Real Property. MnDOT shall not disturb the environmental cap or perform any excavation at the Real Property and shall not penetrate the ground surface at the Real Property in the course of making its geotechnical corrections or in constructing the parking lot. MnDOT shall comply with all applicable laws, ordinances, and requirements, including without limitation, all requirements relating to the control of storm water at construction sites. After placing the surcharge soils at the Real Property, MnDOT must fully stabilize the Real Property to assure that none of the surcharge soils leave the site through erosion or other natural forces. If MnDOT elects to commence the Work prior to the Date of Closing, it shall do so at its sole risk. If this Agreement is terminated prior to the Date of Closing, MnDOT shall have no claim or recourse against any of the parties hereto for reimbursement or otherwise for any improvements made to the Real Property by MnDOT. In addition, if the Agreement is terminated prior to the Date of Closing, MnDOT shall not complete construction of the parking lot and shall not remove any of the soils that it has placed on the Real Property as part of the Work. MnDOT shall stabilize the site as required under applicable storm water regulations, shall promptly terminate its construction storm water permit, and shall leave the Real Property in a condition reasonably acceptable to the MPCA, Seller and the City. MnDOT shall be solely responsible for its own acts and omissions, and the results thereof, in connection with its activities on the Real Property and in its performance of the Work. MnDOT will be a Responsible Party, as defined by applicable law, for all releases or threatened releases of Hazardous Substances, pollutants, contaminants, or hazardous wastes transported to or from the Real Property, stored, generated, used, encountered, or released in the course of performing the Work, including without limitation any disturbance or exacerbation of the contents of the landfill at the Real Property. If the environmental cap at the Real Property is damaged as a result of the Work, or if site conditions are exacerbated or new releases are caused as a result of the Work, MnDOT shall promptly report all such damage, exacerbation or releases to Seller and shall repair or remediate all such damage, exacerbation or releases to the satisfaction of the MPCA and the Seller, all at MnDOT's sole cost. MnDOT shall be solely responsible for defending against any claims or causes of action asserted against MnDOT arising out of MnDOT's activities on the Real Property and its performance of the Work. This paragraph shall not apply to the extent a claim arises solely from the negligence, gross negligence, or reckless or intentional misconduct of any other party to this Agreement. MnDOT shall cause its parking lot contractor to carry a policy of comprehensive general liability insurance in an amount of not less than $3,000,000 and shall name Seller as an 15 33 of 78 additional insured under said policy. Before MnDOT enters the Real Property to commence the Work, Seller must receive and approve certificates of insurance evidencing the required insurance is in place. If any mechanics', materialmen's lien, or similar lien, is asserted against the Real Property as a consequence of the Work, MnDOT shall immediately satisfy, defend, or obtain the release of such liens all at MnDOT's expense, and MnDOT shall defend against any claims arising out of or connected with such lien. MnDOT shall require its prime contractor to post payment and performance bonds covering the Work. Performance bonds assure completion of the work in accordance with contract requirements, and payment bonds protect the interest of subcontractors, material suppliers, and workers furnishing labor for the project. MnDOT will cooperate with the Seller, Purchaser, and Title Company as necessary to provide assurances that bonds have been filed as required, and to provide information concerning known and suspected claims against such bonds. MnDOT will work with the parties to provide information certifying that it has made payment to its contractors as required by the contract. If MnDOT is in breach of any of its obligations under this Agreement, Seller may exclude MnDOT from the Real Property, and MnDOT shall not re- enter. the Real Property until such breach is cured. 19.0 Miscellaneous. The following general provisions govern this Agreement: 19.1 Time is of the Essence. The Date of Closing is of the absolute essence. In the event this transaction does not close on the Date of Closing because the Seller is unable to perform as required by this Agreement, this Agreement shall be null and void. 19.2 Governing Law. This Agreement is made and executed under and in all respects is to be governed and construed under the laws of the State of Minnesota. 19.3 Notices. Any notice required to be given to Seller or Purchaser pursuant to this Agreement shall be in writing and shall be deemed duly given: (i) on the date of personal delivery; (ii) one day following dispatch by Federal Express or its equivalent or (iii) two (2) days following mailing certified or registered mail, postage prepaid, return receipt requested, to the respective addresses of the parties set out below: 16 34 of 78 Seller: Northern States Power Company 1103 King Plant Road Bayport, MN 55003 Attention: Jim Zyduck With a Copy to: Jennifer Thulien Smith Xcei Energy Inc. 414 Nicollet Mall Minneapolis, MN 55401 And to: Susan D. Steinwall Fredrikson & Byron, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402 Purchaser: Barbatsis Property LLC 15021 North 60 Street Stillwater, MN 55082 Attention: Phil Barbatsis 17 35of78 With a Copy to: Eric Thole 275 South 3 Street Suite 203 Stillwater, MN 55082 MnDOT: Minnesota Department of Transportation 1500 W. County Road B2 Roseville, MN 55113 Attention: John Isackson, Right of Way Office With a Copy to: Jon Chiglo, St. Croix Crossing Project Director MnDOT 3485 Hadley Avenue, Oakdale, MN 55128 And to: Todd Clarkowski, St. Croix Crossing Project Coordinator MnDOT 3485 Hadley Avenue, Oakdale, MN 55128 City: City of Oak Park Heights P.O. Box 2007 Stillwater, MN 55082 -3007 Attention: Eric Johnson With a Copy to: Mark Vierling Eckberg Lammers Briggs Wolff & Vierling PLLP 1809 Northwestern Ave., Suite 110 Stillwater, MN 55082 -7521 Any party, by notice given as aforesaid, may change the address to which subsequent notices are to be sent to such party. 19.4 Purchaser's Waiver Rights. Purchaser may, at its option, waive any right conferred upon the Purchaser by this Agreement. Except as otherwise provided herein, such waiver may be made only by giving Seller written notice specifically describing the right waived. 19.5 Amendment. This Agreement shall be amended only by a written instrument signed by all parties. 18 36 of 78 limiting in any way the scope or intent of the provisions hereof. Wherever the context requires or permits, the singular shall include the plural, the plural shall include singular, and the masculine, feminine and neuter shall be freely interchangeable. 19.7 Assignability. This Agreement and the rights set out herein may not be assigned by Purchaser. 19.8 Entire Agreement. This Agreement sets forth the entire understanding of the parties and may be amended, modified or terminated only by an instrument signed by the parties. 19.9 Survival. The indemnification provisions of this Agreement shall survive its expiration or termination. 19.10 Counterparts. For the convenience of the parties, any number of counterparts hereof may be executed and each such executed counterpart shall be deemed an original, but all such counterparts together shall constitute one in the same Agreement. The parties hereto have executed this Agreement as of the day and year set forth above. (Signature Page Follows) 5249960 11 DOC 19 37 of 78 Signature Page to Purchase Agreement PURCHASER: BARBATSIS PROpERXY LLC r , ii / B s: , d r .: 7 (f: (:. -•/ ' .. T y: 7 ' . :.' 3 .,. :;./-,;.- :/:I.,/, _ / - Date: SELLER: NORTHERN STATES ER CO , r ANY ..,-- - 4y:/ A• A ' Juk Pofe•I • Pr si • -nt : . 4 CEO , Northern States Power Company, a Minnesot / corpor tion, d/b/a. Xcel Energy i Date: 11 'd -( -;) 0 (-)--- MnDOT: STATE OF MI 1 ESOTA, Through its D pat ment of Transportation i • By:____ I, n Chiglo ik Its: St. C •• ix ros • _ Project Director Date: • 1 .5 . I CITY: THE, CITY OF . 4. HEIGHTS • / • By: Eric son Its: City/ .: 4 . inistrator ..„----- „-i Date: --- • ' ' / i /1 1 " .•<',,' ,,,.' .. c. / , 1. _ __________ I, ' i -i , - -, ,---•,- By 1 . .,,, rave Beaud t Its: Mayor Date: 11 2-!:1 .1. 20 38 of 78 EXHIBIT A Legal Description of Seller's Land As described in Certificate of Title Number 49652 issued by the Washington County Registrar of Titles on November. 7, 1996. A -1 39 of 78 i EXHIBIT B Purchaser's Existing Property Legal Description ALL THAT PT NW1 /4 -NW1 /4 SD SEC 3 DESC AS FOLL: COM AT PT ON SLY R/W LN OF MN T.H. #212 75FT E OF W LN SD SEC 3 THN S & PER PENDICULAR TO SD R/W LN 115FT THN E & PARL, TO SD R/W LN 140F T THN N AT RT ANG TO LAST DESC LN 115F1 "f0 PT ON SLY R/W LN T.H. #212 THN W ALG SD SLY R/W LN 15FT THN S AT RT ANG TO SD R/W LN 100FT THN W & PARL TO SD R/W LN 100FT THN N AT RT ANG TO SD LAST DESC LN 100FT TO PT ON SLY R/W LN SD T.H. #21 2 THN W ALG SD R/W LN 25FT TO POB THIS DESC AND ALL THAT PT NWI /4 -NW1 /4 SD SEC 3 DESC AS FOLL:COM AT PT IN S LN OF S.T.H #45 100FT E OF W LN SD TRCT MEAS ALG S LN SD HWY THN E ALG S LN SD HWY 100F T THN S AT RT ANG WITH S LN SD HWY 100FT TO PT THN W ON LN PARL WITI I S LN SD HWY 100E 1' TO PT THN N AT RT ANG WITH SD LAST DESC LN 100FT TO POB ALL ACCORDING TO SD HWY AS IT EXISTEI) ON MAY 28,1930 Section 03 Township 029 Range 020 II B -1 40 of 78 EXHIBIT C Designation of Premises LETTERHEAD] [Date] • Dear Please be advised that pursuant to paragraph 1.0 of the Purchase Agreement between and regarding the real property at � , we hereby designate the "Real Property to be Purchased" as follows: [Insert Legal Description of Property] Very truly yours, [Insert Name of Company and Signer] C -1 41 of 78 EXHIBIT D Permitted Encumbrances 1. The lien of real estate taxes not yet due and payable in 2013 which are assumed by Purchaser and real estate taxes due and payable thereafter. 2. Building and zoning laws, ordinances, state and federal regulations which do not interfere with the Purchaser's use of the Real Property as a parking lot. 3. The Environmental Covenant and easement referenced in paragraph 6.8 of the attached Purchase Agreement. 4. The release referenced in paragraph 6.8 of the attached Purchase Agreement. S. All utility easements of record. 6. A reserved utility easement in favor of Seller encumbering the northerly 40 feet of the Real Property. D -1 42 of 78 TEMPORARY PERMIT TO CONSTRUCT C.S. 8214 S.P. 8214-114 Parcel 263A NSP Company Dated: / County of Washington • The State of Minnesota has by its Commissioner of Transportation established and designated the route of Trunk Highway No. 36 in Washington County, Minnesota. it is necessary that the State of Minnesota use for transportation purposes real property situated in Washington County, Minnesota, described as follows: See attached Exhibit "A". The undersigned, having an interest in the above described real property, understand that they are not required to surrender possession of real property without just compensation and are not required to surrender lawfully occupied real property without at least 90 days' notice. For valuable consideration, the undersigned hereby waive these rights and give the State of Minnesota an immediate right of entry and permit to construct a parking lot for the future city park as shown on the attached Exhibit "A". This parking lot satisfies a State Historical Preservation Office (SHPO) mitigation requirement for S.P. 8214 -114. The City of Oak Park Heights (City) has a long term license agreement with Northern States Power Company, a Minnesota Corporation (NSPM) to use the property owned by NSP for public park purposes. This license agreement was effective starting on June 21, 2012 and it is renewable on December 31, 2061. The valuable consideration received•by NSPM is goodwill from the public for the proposed City park because a portion of this this parking lot will be used by park patrons. NSPM and the City also receive goodwill from MnDOT for SHPO mitigation purposes. MnDOT hereby agrees to abide by applicable terms and conditions for construction set forth in the License Agreement between NSPM and the City; acknowledges that it will be constructing the parking lot at its sole expense at a closed landfill consistent with plans submitted to the City and shall be compliant with City Ordinances and specifically agrees, as a condition of this permit, that all of its construction will be strictly in compliance with plans that are approved by the Minnesota Pollution Control Agency (MPCA), permits issued by the MPCA, and applicable statutes relating to the release or threatened release of pollutants, contaminants, and hazardous substances. This Permit will expire when MnDOT has completed its construction of the parking lot referenced herein. Northern States' wer Company v • Its: p44,-,..1--ft - V-S. 1Z, r -1< City of 0. Par eights • Its c , r Abinms • Minne a Department of Transportation r 1 Bv: — Its: or I I 111 • 43 of 78 m' 5 ~;-- `~ ��� |,~ / l ` \ { � — � � T �� ._~`^��� n/ � �_-_-- � � __- ^fU uour vv,n�.��/ MINNESOTA DE PARTMENT OF TRANSPORTATION C.S. 8214(36=45)804 S.P. 8214-114 COUNTY Washington OWNER Xcel Energy � —__- � --_ -__ IB mem OF WAY ZERO DOLLAR MOW $47n/ PARCEL NO. 263A T A Scale >^ = 5Off.