HomeMy WebLinkAbout2001 10-22 City Council Manager Workshop PacketCITY COUNCIL /MANAGER WORKSHOP
Monday, October 22, 2001
Council Chambers, City Hall
6:00 p.m.
AGEND
A. CALL TO ORDER
B. ROLL CALL
C. APPROVAL OF AGENDA
D. NEW BUSINESS
1. Arbitration Update - McGuire
2. Proposed Purchase Agreement - Van Dyke Street Property
E. FUTURE TOPICS
1. Exploring the Possibilities of a Sister City
2. Reviewing the Community Center Catering Contract
F. ADJOURNMENT
Agenda #
MEMORANDUM Acd b Coumn
TO. City Manager
a
FROM: Ken Roberts, Associate Planner E ndoi n d
SUBJECT: Proposed Purchase Agreement - Van -Dyke Street Propcw i red
DATE: October 16, 2001 Rejected
INTRODUCTION
City staff is asking the City Council to review and consider a purchase agreement from Bruce
Mogren for the purchase of four city -owned properties. These properties are on the west side of
Van Dyke Street between County Road B and Cope Avenue and are about 3.45 acres in area.
(See the maps on pages 3 and 4 and the letter from Mr. Mogren on pages 7 and 8.)
BACKGROUND
In 1995 or 1996 the city acquired use deeds on these properties from the State of Minnesota. The
city originally thought that the new Gladstone Fire Station might go on these properties or that the
city would use part of the property for drainage or open space purposes.
On March 27, 2000, the city council directed city staff and the Housing and Redevelopment
Authority (HRA) to buy from Ramsey County the four tax - forfeited properties on the west side of
Van Dyke Street for the development of low to moderate or mixed income housing.
On June 22, 2000, the city council adopted a resolution authorizing the reconveyance and the
purchase of the tax- forfeited properties on the west side of Van Dyke Street for the development of
low to moderate or mixed income housing. (See the minutes on pages 5 and 6.) City staff, based
on this council approval, then bought this property from the county for the city.
DISCUSSION
Since the city council authorized the purchase of the property, city staff has been gathering
information about the property and has started preliminary negotiations with Bruce Mogren for the
development of the site. Mr. Mogren has proposed,to buy the property for $154,000 to develop 30
units of "workforce" (low to moderate income) rental housing on the site (see his concept plan on
page nine.) The $154,000 is the same price the city paid for the property in 2000.
Zoning and Land Use
The city has zoned this site R -3 (multiple - family residential) and BC (business commercial). (See
the property line /zoning map on page four.) In addition, the city has planned this site RM
(residential medium density) and BC (business commercial). These are the same zoning and
land use designations that are in place for the Emma's Place site on the comer of Van Dyke Street
and County Road B. The site under consideration here is about 3.45 acres in area. At six units per
acre (medium density), the city would normally allow about 21 townhouse units on the 3.45 acres.
Mr. Mogren's concept plan shows a total of 30 units in five 6 -unit buildings. The proposed 30 units
on 3.45 acres are 8.70 units per acre, which the city considers to be high density for townhouse
development.
If the city wants to go forward with the concept plan as proposed by Mr. Mogren, then the council
would ultimately have to approve a land use plan change (from medium density residential to high
density residential) and either a rezoning to R -3 (multiple - family residential) or a CUD (conditional
use permit) for the site. `�w
As outlined in the reconveyance and purchase approval and resolution, the city is required to
ensure that any use of the site is for a public purpose. Specifically, the city would have to ensure
that the developer uses the site for low to moderate income housing. Mr. Mogren is aware of this
condition and is proposing 30 rental townhouse units to meet this condition.
Purchase Agreement Conditions
The city attorney's once has reviewed the proposed purchase agreement and recommends
several changes to the agreement before the city proceeds. (See the attorney's comments starting
page 22.) Staff agrees with the suggested changes and recommends that Mr. Mogren make the "
noted changes to the purchase agreement before the city signs it.
The proposed purchase agreement has several conditions that both the city and Mr. Mogren would
need to agree to. An important condition is 7d that states that the buyer will have all necessary city
approvals on or before March 1, 2002. This would require the developer to have complete
applications into the city by December 15, 2001.
Another important matter with the development of this site, and specifically with the proposed
purchase agreement, is a 25- foot -wide strip of land owned by NAPA. This .land is .part of the
property for their store that is on White Bear Avenue but it divides the city -owned property into two
parts. (See the map on page four.) Paragraph 12 of the proposed purchase agreement requires
the city to condemn this strip of land for the developer if the city or the developer is not able to
acquire this strip of land through other negotiations. However, the agreement also notes that the
buyer (Mr. Mogren) would reimburse the city for all costs and expenses of the condemnation
process.
The city attorney, however, informed staff that condemnation is not a viable option for this
property. City staff, furthermore, has been working with the Genuine Part Company (the owners of
NAPA) to obtain the strip of land. A representative of Genuine Parts Company told Tom Ekstrand
that they are willing to transfer this land to the city and that they are in the process of preparing the
deed for this transaction.
RECOMMENDATION
Review and then provide direction to staff about the city's interest in the proposed purchase
agreement starting on page ten. This agreement is for the purchase of four city -Owned properties
on the west side of Van Dyke Street between County Road B and Cope Avenue by Bruce Mogren
for the development of low to moderate or mixed income housing. Specifically, the city needs to
decide whether to proceed with the 30 -unit rental townhouse concept plan as proposed by
Mr. Mogren or does the city want to see another type of development on this site.
If the city wants to proceed with this proposal, then Mr. Mogren should revise the purchase
agreement to be consistent with the recommendations of the City Attorney.
p :sect 1 /taxfor -2.mem
Attachments:
1. Location Map
2. Property Line /Zoning Map
3. June 12, 2000 Council Minutes
4. September 27, 2001, letter from Bruce Mogren
5. Concept Site Plan
6. Proposed Purchase Agreement
7. October 12, 2001 comments from the City Attorney
2
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3. Purchase of Tax-Forfeit Property (Van Dyke Street)
Attachment 3
a. Acting City Manager Haider introduced the staff report.
Councilmember Koppen moved to adopt the following Resolution, authorizing the re- conveyance and the
purchase of tax - forfeited properties:
RESOLUTION 00 - 06 - 071
RESOLUTION AUTHORIZING THE RE- CONVEYANCE AND
THE PURCHASE OF TAX - FORFEITED PROPERTIES
WHEREAS, the City of Maplewood the Maplewood Housing and Redevelopment Authority (HRA) have
decided that the city wants to reconvey to and buy from Ramsey County the following - described tax- forfeited properties
for the development of low to moderate or mixed income housing:
Parcel One
PIN: 11-29-22-33-00,10
Description: Smith and Taylor's Addition to North St. Paul, S. V2 of vac alley adj and N V2 of vac Laurie Ave
adj and fol part of Lot 2, Block 13
Parcel Two
PIN: 11- 29 -22 -33 -0012
'Description: Smith and Taylor's Addition to North St. Paul, ex S 2 65/100 Ft and Ex Fol Beg on W L of and 2
65/100 Ft N of SW Cor of Lot 1 the 27149/100 Ft Th N to Pt in Cl of Vac Laurie Rd 272 19/100
Ft E From W L of SD Lot Th W to W L of SD lot TH S to Beg part of Vac Adj and Lot 1, Block
20
Parcel Three
PIN: 11- 29 -22 -33 -0016
Description: Smith and Taylor's Addition to North St. Paul, Vac Ave S of & Accruin g & Fol Ex N 2.65 Ft the
W 49 Ft of E 319 Ft of Lot 2, Block 20
Parcel Four
PIN: - 11- 29 -22 -33 -0018
Description: Smith & Taylor's Addition to North St. Paul, Vac Ave S of and accruing and fol ex N 2 65/100 fl
the E 270 Ft of Lot 2 Block 20
All in the SW 1/4 of the SW 1/4 of Section 11, Township 29, Range 22, Maplewood, Ramsey County,
Minnesota.
WHEREAS, the city has determined that it would be prudent and in the public interest to help in the
development of housing for low to moderate or mixed income persons.
5
WHEREAS, the city has determined the above- referenced properties would be a good location for such
.
housing.
NOW, THEREFORE, BE IT RESOLVED, that the city council authorizes the Actin City Manager Acting tY to g
apply reconvey the above- described properties and purchase them for the development :of low to moderate or
mixed income housing.
The Maplewood City Council adopted this resolution on June 12, 2000.
Seconded by Councilmember Wasiluk Ayes - all
4. No Parking -Adele Street at East Shore Drive
a. Acting City anager Haider introduced the staff report and presented t specifics of the
report.
b. Mayor Cardinal as ed if anyone wished to speak before the Co cil regazding this matter.
'No one was heard.
Councilmember Koppen moved to esta ish a no-parking zone on the e t si
Drive to the first driveway north.
Seconded by Councilmember Collins
L. VISITOR PRESENTATIONS
None
M. COUNCIL PRESENTATIONS
1. Midsummer Nights - Counc` member Allenspach ann unced when the first few parks will be hosting g
Midsummer Nights and ' formed citizens that it was a hance for the citizens to meet their neighbors
and the City Staff. It
2. NEST - Councilm ber Wasiluk announced that the Metro ansit has funded three buses for the
NEST program.
N. ADMINISTWIVE PRESENTATIONS
1. Mayor Cardinal announced that the City of Maplewood received an a and from the Watershed
District in recognition of 25 years (1975 -2000) of valuable contribution to watershed stewardship
and improved quality of life for citizens of Ramsey/Washington Metro an Watershed District.
6 / 0 - 0--.0c5o
12
Attachment 4
September 27, 2001
City of Maplewood
1830 East County Road B
Maplewood, MN 55109
Re: Van Dyke Avenue Project, Maplewood, Minnesota
Dear Sir or Madam:
We appreciate the City of Maplewood's invitation to develop the approximate 3.5 acres located
on Van Dyke Avenue in Maplewood, Minnesota (the "Property "). We have completed some
preliminary exploration of the Property and now have enough information to propose some
preliminary plans for the Property.
Our intention is to cooperate with the City to develop a plan for "Work Force" housing which
appears to us to be consistent with the City's original goals in connection with its acquisition of
the Property. We have already retained an architect and engineer to complete basic site plans,
units plans and site engineering. We believe our proposal is consistent with the City's stated
goals of pursuing a public purpose with respect to the Property. We would like to note that we
have significant experience in the development and ownership of this type of housing. See
resumes of principals attached.
As the City is aware, the cost to construct this housing greatly exceeds the amount of market -rate
financing available and, therefore, financial assistance from a variety of public and private
sources is typically needed. Accordingly, we expect to seek assistance from Ramsey County, the
Minnesota Housing Finance Agency, the Family Housing Fund and other appropriate sources.
Further, our preliminary site analysis has disclosed the fact that a significant amount of soil
correction is going to be required to construct our Project (or any project) on the site. Although
we do not have definitive information on the precise amount of these costs they are clearly
significant as compared to the purchase price. At some point in time we may need to discuss
some financial assistance (sucbh as TIF) for the mitigation of some of these soil correction costs.
7
City of Maplewood
SeptrAmber 27, 2001
Page 2
To take this Project to the next step we now need to expend significant amounts of money for
working drawings, geotechnical studies, financing applications and feasibility studies. Although
we are anxious to undertake these steps, we do not feel it would be prudent to do so without site
control. Accordingly, we take the liberty of enclosing a proposed draft of a Purchase Agreement
for the Property.
Very truly you
B -
Bruce Mogren
E'3
Attachment 6
VACANT LAND PURCHASE AGREEMENT
THIS AGREEMENT, is made and entered into as of the i&y of Se tember 2001 . � September, ("Effective
Date "), by and between The City of Maplewood, Minnesota, a political body corporate and
politic of the State of Minnesota ( "Seller "), and Bruce Mogren and /or assigns, an individual
resident of the State of Minnesota ( "Buyer ").
In consideration of the Earnest Money (as hereinafter defined), the mutual covenants set forth in
this Agreement, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Seller and Buyer agree as follows:
1. Sale and Purchase Subject to the terms, conditions, representations and warranties set
forth in this Agreement, Seller agrees to sell and assign to Buyer, and Buyer agrees to purchase
and accept from Seller, fee simple title to certain real property located in Ramsey County,
Minnesota, legally described as set forth as Exhibit A and made part hereof together with all
hereditaments and appurtenances thereto (the "Property ").
2. Purchase Price: The purchase price for the Property shall be One Hundred Fifty Nine
Thousand and 00 /100 Dollars ($159,000.00) (the "Purchase Price "), payable as follows:
a. $5,000.00 earnest money ( "Earnest Money "), shall be deposited with C. I. Title
(agent for Chicago Title Insurance Company) upon receipt by Buyer of a fully
executed copy of this Agreement, with all interest earned thereon to be payable to
Buyer upon the closing or, subject to Section 15, termination of this Agreement;
and
b. The balance of the $154,000,00 Purchase Price (namely $154,000.00) by cash,
certified funds or wire transfer on or before the Closing Date (as hereinafter
defined).
All Earnest Money shall be deposited by Title in an interest- bearing trust account.
3. Title. Within thirty (30) days after the Effective Date, Seller shall, at its expense, furnish
the following (collectively, the "Title Evidence ") to Buyer:
a. Title Insurance Commitment and Abstract. A current commitment for an ALTA
1992 Owner's Policy of Title Insurance issued by Title Company, together with
copies of all documents referenced therein, in the amount of the Purchase Price
( "Commitment "). The Commitment shall commit Title to insure title to the
Property subject only to the encumbrances permitted by Buyer in accordance with
the provisions set forth in this Section 3. If the Property is abstract property, Seller
shall also deliver to Buyer an original abstract of title to the Property if the same is
in Seller's possession.
10
b. S urvey . Seller shall also deliver to Buyer a survey of the Property now in
possession of Seller, if any (the "Survey "), showing the area of the Property, the
location of all improvements; showing all easements, roads, driveways, and
identifying the same by recording information.
Buyer shall be allowed thirty (30) days after receipt of the Commitment and Survey
( "Title Evidence ") for examination of said title and making of any objections thereto, said
objections to be made in writing or deemed to be waived. If any objections are so made,
the Seller shall, use diligent efforts to correct any valid title objections within one
hundred twenty (120) days. after receipt of said objections, or such longer period as the
parties may mutually agree, and pending such correction, the Closing Date shall be
postponed, if necessary. If the Closing -Date has been postponed as a result of such
objections, then upon correction of such title objections and within fifteen (15) days after
written notice of such correction given by Seller to Buyer, Seller and Buyer shall perform
this Agreement according to its terms. If such objections are, in Buyer's reasonable
judgment, not correctable within the time period allowed for correction thereof, or if the
same are not in fact corrected within the time period allowed therefor for any reason, then
Buyer may, at its option, terminate this Agreement by notice to Seller, in which case all
Earnest Money paid by Buyer to Seller hereunder (including all accrued interest thereon)
shall be promptly refunded to Buyer.
4. Real Estate Taxes and Special Assessments. On or prior to the Closing Date, Seller shall
pay all assessments, levied or pending against the Property as of the Closing Date. Real estate
taxes due and payable in the year of closing shall be prorated between Seller and Buyer on the basis
of the number of days in the calendar year of closing before the Closing Date (as to Seller) and on
and after the Closing Date (as to Buyer). Buyer shall pay all real estate taxes and special
assessments due and payable in the year following the Closing Date and thereafter. Seller warrants
that all, estate takes and installments of special assessments due in all years prior to the year of
Closing have been paid in full. Seller shall pay all deferred real estate tomes or special assessments
which may become payable as a result of the sale contemplated hereby.
5. Approval of Documents. Within thirty (30) days following the Effective Date, Seller shall
provide to Buyer the following documents:
a. Copies of any existing reports in Seller's possession regarding the environmental
condition of the Property;
b. Copies of any soils or engineering reports in Seller's possession regarding the
physical condition of the Property;
C. Any reports reflecting the existence and condition of any capped wells located on
the Property.
In the event that this transaction is not closed for any reason, then Buyer shall return the
foregoing documents provided by Seller hereunder to Seller.
11
6. Inspection Period Buyer. shall have the right, at Buyer's sole cost, expense and risk, to
enter upon and examine and inspect the Property and to conduct feasibility, soil and
environmental studies. Buyer shall promptly restore the Property to the same condition in which
it existed immediately prior to any physical tests conducted by or on behalf of Buyer. Further,
Buyer agrees to indemnify and hold Seller harmless from and against any liability, loss, claim or
damage resulting to Seller from Buyer's physical inspections of and /or due diligence on the
Property.
7. Conditions to Buyer's Performance This Agreement and Buyer's obligations hereunder
are conditioned, for_ the sole benefit of Buyer, upon the following:
a. Seller's Performance All representations and warranties of Seller hereunder shall
be true as of the Closing Date and Seller shall have performed all of its covenants,
duties and obligations under this Agreement.
b. Title The Title Evidence shall have been found acceptable, or been made
acceptable, in accordance with the requirements of Section 3 above.
C. Inspection On or before March 1,. 2002, Buyer shall have performed the
inspection tests and examinations as Buyer deems necessary in accordance with
Section 6 above, the results of which shall have been found satisfactory to Buyer.
d. Government Approvals On or before March 1, 2002, unless delay is due to
Seller's actions or inactions, Buyer shall have successfully obtained all necessary
planning, platting, subdivision, utilities extensions, zoning, watershed, wetlands
alteration, street access, variances and any other governmental permits, approvals
and consents required for Buyer's planned improvements of an affordable housing
apartment complex comprised of approximately 3 0 rental townhome units (the
"Project ") including Seller's approval of the contemplated improvements for the
Property ( "Governmental Approvals "), in Buyer's sole discretion, all at the
expense of Buyer.
e. City Approval of Plans and Specifications On or before March 1, 2002, unless
delay is due to Seller's actions or inactions, Buyer shall have of received final
approval from the City Council of Maplewood ( "City ") for site plan and plans and
specifications relating to the Project.
f. Environmental Audit On or before December 1, 2001, unless delayed by Seller's
actions or inactions, Buyer shall have reviewed and approved, in its reasonable
discretion, an environmental audit of the Property. If Buyer desires further
environmental studies of the Property, Buyer shall pay for any and all costs
associated therewith.
If said audit reveals the existence of any pollutants, toxic or hazardous waste or
substances classified as such by federal, state or local statute, law, ordinance, rule
or regulation, in or on the Property in concentrations which exceed background
12
concentrations, Buyer may, at its option, obj ect in writing, with reasonable
specificity, to the existence of the same within thirty (30) days after receipt of said
audit. In the event Buyer objects, Seller shall have the right to terminate this
Agreement by giving written notice thereof to Buyer within twenty (20) days after
Seller's receipt of Buyer's objections, in which event, all Earnest Money, together
with accrued interest, shall be promptly refunded to Buyer. In the eve_ nt Seller
does not terminate this Agreement as provided in this Section, Seller shall use
reasonable efforts to correct the environmental objections raised by Buyer,
provided that such corrections shall be complete within ninety (90) days of
Seller's receipt of Buyer's objections. Completion shall be evidenced by a new
environmental audit satisfactory to Buyer in Buyer's reasonable discretion.
Pending such correction, the closing hereunder ' shall be postponed, if necessary to
a date not more than fifteen (15) days after the parties' receipt of said
environmental audit. If Seller fails to correct such objections within said ninety
(90) day period, Buyer may, at its option, terminate this Agreement by notice to
Seller in which case all Earnest Money paid by Buyer to Seller hereunder
(including all accrued interest thereon) shall be promptly refunded to Buyer. Any
expenses incurred by Seller in connection with the correction of such
environmental objections, including all additional environmental inspections and
audit costs not contemplated by this Agreement shall be the sole cost and expense
of Seller.
8. Waiver of Conditions; Termination
a. Any of the conditions set forth in Section 7 may be waived by Buyer only in
writing.
b. If any of the conditions set forth in Section 7 are not satisfied or waived by the
date specified, or if no such date is specified, then by the Closing Date, then either
party shall be entitled to terminate this Agreement in which case all Earnest
Money, paid by Buyer to Seller (including all accrued interest thereon) shall, be
promptly refunded and neither party shall thereafter have any further liability,
right or obligation hereunder. In the event that either party terminates this
Agreement in accordance with this Section 8.b., Buyer shall execute and deliver to
Seller a cancellation of purchase agreement for the Property.
9. Representations, Warranties and Covenants of Seller. Seller makes the following
representations and warranties to Buyer:
a. Pending Improvements. There are no public improvements which have been
commenced or completed and for which assessment may be levied against
Property or any part thereof after the date of this Agreement.
b. Liti _ There is no litigation, proceeding, claim or investigation, pending or
threatened, against Seller, or the Property, which might create or result in a lien on
or otherwise adversely affect the Property.
13
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. Condemnation. There are no condemnation proceedings which are pending or
threatened against all or any portion of the Property.
e. Environmental. Seller has not _engaged in, and prior to the Closing Date will not
engage in, the business of generating, transporting, storing, treating or disposing
of hazardous substances or hazardous waste classified as such under any federal,
state or local law, statute, ordinance, rule or regulation including, but not limited
to, asbestos, asbestos - containing materials, The Property has not been used for the
storing or disposal of hazardous substances, including, but not limited to,
asbestos, asbestos - containing materials, PCBs or other toxic materials, during, or,
to the best of the Seller's knowledge, prior to the period that Seller has been an
owner of the Property. Seller has no knowledge that the Property is composed or
emits any hazardous substance. As of the date of this Agreement, the Seller has
received no summons, citation, directive, letter or other communication, written
or oral, from. any agency or department of Sherburne County, the State of
Minnesota or the U.S. government concerning any intentional or unintentional
action or omission which resulted in the releasing, spilling, leaking, pumping,
pouring, emitting, emptying or dumping of such toxic material, hazardous
substances or hazardous waste on the Property. As of the date of this Agreement,
the Property is not subject to any investigation, administrative order, consent order
or agreement, litigation or settlement with respect to any such toxic material,
hazardous substance or hazardous waste.
f. Wells and Underground Storage Tanks. To the best of Seller's knowledge, there
are currently no wells or underground storage tanks located on the Property.
Each of the foregoing representations and warranties shall be deemed remade as of the
Closing Date with respect to the Property and, as so remade, shall survive the closing,
delivery of the warranty deed and other documents contemplated hereby, and any
investigation by or on behalf of either party. Other than as expressly stated in this
Agreement, Buyer agrees that the Property is to be sold as -is where -is with all faults, if
any.
10. As -Is. IT IS UNDERSTOOD AND AGREED THAT, EXCEPT AS SET FORTH IN
THIS AGREEMENT, SELLER IS NOT MAKING AND SPECIFICALLY DISCLAIMS ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE (OTHER THAN
SELLER'S WARRANTY OF TITLE SET FORTH IN THE WARRANTY DEED TO BE
DELIVERED AT CLOSING) ZONING, TAX CONSEQUENCES, PHYSICAL OR
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ENVIRONMENTAL CONDITIONS, SOIL CONDITIONS, AVAILABILITY OF ACCESS,
INGRESS OR EGRESS, OPERATING . HISTORY OR PROJECTIONS, VALUATION,
GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER
.MATTER OR THING RELATING TO OR AFFECTING THE PROPERTY, INCLUDING,
WITHOUT LIMITATION THE VALUE, CONDITION, MERCHANTABILITY,
MARKETABILITY, PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR
USE OR PURPOSE OF THE PROPERTY, AND THE MANNER, QUALITY, STATE OR
REPAIR OR LACK OF REPAIR OF THE PROPERTY.
11. Pre - Closing Covenants of Seller From the Effective Date until the Closing Date:
a. Seller shall not, without Buyer's prior written consent, (i) petition for a change the
existing zoning (if any) for the Property, (ii) plat or restrict the Property, or
(iii) excavate the Property (except to the extent required to perform routine
maintenance or repairs);
b. Seller shall continue in effect all insurance coverage relative to the Property;
C. Seller shall not, without the prior written consent of Buyer, enter into any
agreements or contracts relating to the Property which could bind Buyer or the
Property after the closing.
d. Seller shall cooperate and join with Buyer as reasonably necessary in any
applications for Governmental Approvals, but without expense to Seller.
12. Condemnation As of the date hereof, a third party owns a parcel of property which
dissects the Project as shown on Exhibit "B" Such parcel is shown and legally described as
Exhibit B attached hereto and made part hereof (the "Additional Parcel "). In the event that the
Buyer is not able to acquire the Additional Parcel through negotiation with the third party owner
thereof, Seller agrees to use its condemnation power to acquire the Additional Parcel. Buyer
shall reimburse Seller for all of its costs and expenses in connection with the acquisition of the
Additional Parcel through condemnation including legal fees, appraisals and other costs.
13. Commission Seller and Buyer represent and warrant to each other that they have not
engaged the services of any broker in connection with the sale and purchase contemplated by this
Agreement. At Closing, Seller shall be solely responsible to pay the commission due
( "Commission ") any real estate agent for the sale of the Property. Each party agrees to indemnify
and hold the other harmless from any claim, damage, cost or expense for such brokerage
commission or finder's fee incurred as a result of any other brokerage agreement entered into by
such party, and to pay all costs of defending any action or lawsuit brought to recover any such
fees or commissions incurred by the other party, including reasonable attorneys' fees.
15
14. Closing Costs and Expenses In addition to the other costs and expenses specifically
provided for in this Agreement, closing costs and expenses shall be borne as follows:
a. Seller shall be obligated for and shall pay:
(1) Cost of issuance of the Commitment without endorsements;
(2) Cost of preparation of the Survey;
(3) Seller's attorneys' fees;
(4) Any real estate broker's commission;
(5) State Deed Tax;
(6) Conservation Fee payable for the Deed;
(7) One -half of the closing fee charged by Title; and
(8) All fees for recording all documents necessary to place record fee simple
title in Seller's name free and clear of all encumbrances;
b. Buyer shall be obligated for and shall pay:
(1) The cost of recording or filing the Deed;
(2) The premium for the issuance of an Owner's Title insurance policy and all
endorsements;
(3) The Buyer's attorneys' fees;
(4) One -half of the closing fee charged by Title; and
(5) All fees for recording the Deed and related documents other than those
specified in Section 13(a)(9) above.
14. Clo sing.
a. General; Possession Subject to all the terms and conditions of this Agreement
having been complied with, the closing of the transactions contemplated hereby shall
occur on or before April 1, 2002 ( "Closing Date ") in the offices of Buyer's attorneys or at
such other date, time and place as the parties shall agree in writing. Possession of the
Property shall be transferred by Seller to Buyer on the Closing Date.
lL
b. Deliveries by Seller at Closing At the closing, Seller shall deliver to Buyer the
following:
(1) A Warranty Deed, in recordable form, duly executed by Seller, conveying
good and marketable fee simple title to the Property to Buyer free and
clear of all encumbrances and restrictions, except those which Buyer has
expressly agreed to
(2) A standard form Seller's Affidavit, duly executed by Seller and completed
without exceptions for bankruptcy, judgments, tax liens, mechanic's liens,
parties in possession or other unrecorded contracts.
(3) An affidavit of non - foreign status, duly executed by Seller, containing
such information as is required by IRC Section 1445(b)(2) and its
regulations.
(4) An affidavit regarding sewage treatment, if applicable.
(5) A Certificate signed by Seller stating that Seller knows of no wells on the
Property within the meaning of M.S.A. § 103I, or if Seller knows of any
wells, a Well Certificate in the form required by law.
(6) A Certificate dated as of the Closing Date certifying that the
representations and warranties are true as of the Closing Date.
(7) If the Property contains or contained a storage tank, an affidavit with
respect thereto, as required by M.S.A. § 116.48.
(8) All other agreements, documents and instruments necessary or incident to
consummation of the transactions contemplated hereby.
C. Deliveries by Buyer at Closing At the Closing, Buyer shall deliver to Seller the
following:
(1) The funds required by Section 2.b. hereof by certified check or wire
transfer.
(2) All other agreements, instruments and documents necessary or incident to
consummation of the transactions contemplated hereby.
The performance by Seller and Buyer at the closing shall be concurrent.
15. Remedies If Buyer cancels this Agreement by reason of non - satisfaction of one or more
conditions to closing, or by reason of Seller's default, all Earnest Money paid by Buyer to Seller
(including all accrued interest thereon) shall be promptly refunded to Buyer and neither party
shall thereafter have any further liability, right or obligation hereunder. In addition, if Buyer
cancels this Agreement by reason of a default by Seller, including the failure of Seller to timely
17
cure Buyer's objections to title, the Survey or the environmental condition of the Property
pursuant to Sections 3 and 7e hereof, Buyer shall be entitled to the prompt refund of any Earnest
Money paid hereunder (including accrued interest thereon.) Seller's sole and exclusive remedy
for Buyer's default shall be cancellation of this Agreement and retention of the Earnest Money
and all interest earned thereon as liquidated and final damages. If this Agreement is not canceled
by Buyer, Buyer shall have the right in addition to other remedies and rights available at law or in
equity, to apply for and receive from any court of competent jurisdiction, equitable relief by way
of specific performance to. enforce performance of the terms of this Agreement, plus
reimbursement for costs, including reasonable attorney's fees, incurred in securing such relief;
provided, however,_ that an action to enforce such specific performance shall be commenced
within six (6) months after such right of action shall arise and shall be in lieu of any claim for
damages.
16. Notices All notices, offers, requests, and other communications from any other parties
hereto to the others shall be in writing and shall be considered to have been duly given or served
if: delivered personally to the party served; or if sent by first class certified or registered mail,
return receipt requested, postage prepaid; or if transmitted by facsimile, copy followed by mail as
above required; or if deposited cost paid with a nationally recognized, reputable overnight
courier, properly addressed as follows or to such other address as such party may hereafter
designate by written notice to the other parties:
a. If to Buyer, to:
Bruce Mogren
1801 Gervais Avenue
Maplewood, Minnesota 55109
Fax No. (651) 777 -5151
with a copy to:
Winthrop & Weinstine, P.A.
Dain Rauscher Plaza
60 South Sixth Street
Minneapolis, Minnesota 55402
Fax No. (612) 347 -0600
Attn: Beth G. Timm
b. If to Seller, to:
City of Maplewood, Minnesota
1830 East County Road B
Maplewood, Minnesota 55109
Fax No. (651) 770 -4506
Attn: City Manager
Notices, objections and other communications shall. be deemed effective upon delivery, if
personally delivered, one (1) business day after being deposited with a nationally recognized
overnight air courier, two (2) business days after mailing by certified or registered mail, or on the
day of facsimile transmission if the sending party receives transmittal confirmation from the
sending facsimile machine and deposits a copy of the notice or other communication in first
class, certified or registered mail, return receipt requested, postage prepaid on the date of the
transmission addressed to the addressee as set forth above, all without regard to the actual receipt
by addressee.
17. Time of Essence Seller and Buyer agree that time shall be of the essence of this
Agreement.
18. Interpretation. This Agreement shall not be construed more strictly against one party
than against the other merely by virtue of the fact that it may have been prepared by counsel for
one of the parties, it being recognized that both Seller and Buyer have contributed substantially
and materially to the preparation of this Agreement.
19. Construction. The headings of the sections and subsections of this Agreement are for
convenience and reference only and do not form a part hereof, and in no way interpret or construe
such sections and subsections. Wherever the context requires or permits, the singular shall
include the plural, the plural shall include the singular and the masculine, feminine and neuter
shall be freely interchangeable.
20. Parties in Interest/ Assi This Agreement shall be binding upon and inure to the
benefit of the parties' respective heirs, representatives, successors, and assigns. This Agreement
is for the sole benefit of Seller and Buyer (including a permitted assignee, as contemplated
herein), and no third party (including any real estate broker or any subsequent owner of the
Property) is intended to be a beneficiary of or have the right to enforce this Agreement. Buyer
shall have the right to assign its interest in this Agreement to an entity wherein the Buyer is a
general partner thereof without requiring the Seller's prior written consent. Any other assignment
of this Agreement shall require the prior written consent of the Seller, which consent shall not be
unreasonably withheld.
21. , Definitions. If any date herein set forth for the performance of any obligations by Seller
of Buyer or for the delivery of any instrument or notice as herein provided should be on a
Saturday, Sunday or legal holiday, the compliance with such obligations or delivery shall be
deemed acceptable on the next business day following such Saturday, Sunday or legal holiday.
As used in this Section, the term "legal holiday" means any state or federal holiday for which
financial institutions or post offices are generally closed in the State of Minnesota.
The term "including" shall mean including, as an example, without limiting the generality of the
foregoing. The term "person" shall include any person, entity, corporation, association,
organization, partnership, limited partnership, limited liability partnership, limited liability
company, or trust.
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22. Joint and Several If the Seller consists of more than one person, said persons jointly
and severally agree that all agreements, warranties and representations of Seller contained in this
Agreement are made by them jointly and severally and that all conditions of this Agreement to
be observed by Seller shall be observed by them jointly and severally.
23. Entire Agreement This Agreement (including all exhibits hereto) contains the entire
agreement of the parties. It may not be changed orally but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
24. Counterparts. This Agreement may be executed* in any number of counterparts, each of
.which shall be deemed to be an original, but all of which together shall constitute one, and the
same document. A signature page to any counterpart may be detached from such counterpart
without impairing the legal effect of the signatures thereon and thereafter attached to another
counterpart identical thereto except having attached to it additional signature pages.
25. Severability. If any provision of this Agreement is held to be unenforceable or void, such
provision shall be deemed to be severable and shall in no way affect the validity of the remaining
terms of this Agreement.
26. Governing Law. This Agreement shall be construed as to both validity and performance
and enforced in accordance with and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and year. first above
written.
Bruce
TIN: -
SELLER:
City of Maplewood, Minnesota
B
Its:
and
By:
Its:
20
EXHIBIT A
(PRELIMINARY SITE PLAN)
idmsmpl:465941_1 /5490.8
21
Coot-12 -61 62 :12pm From -KELLY AND FAWCETT
6512236619 T-793 P.62/64 F -631
�11& F
A T T O R N E Y S A'f LAW
2350 US 13ANCORP PIPER JAPPRAY PI
CEDAR STREET
SA INT PAUi., MN 55
PATRICK J. KELLY
'$k);tiI l;, 1•() r A W ('4 't'
Si LO
CHAD D. LE?V MONS
"'i'1 L41E 1 M LOU CKS
ROBERT I FOWLER
October 1 2, 2001
VIA FTACS11 ILE (651) 779-35 AND U.S. MAIL
Ms. Meli -nd.a Coleman
Assistant City Manager
CiTy of Maplewood
1 830 East County Road 8
Maplewood, MN 55109
. : Sale of Vacant Land to Bruce Mogren
Dear Ms. Coleman:
Attachment 7
Of Counbul
10:JN r OA NNIC AN. JA
MCGUIGAN & HOLLY, P L C
(55 1) 33 -1
F$csmis (6S 1) 223 -8019
t%-MW d4jzUA kclly1&41kWc Ctl ewl
Per your request, Patick Kelly Chad. Le3x coons and I have reviewed the Purchase A.greemew
proposed by Bruce Mogren. Where are quite a few issues with the Agreement.
1 The City of Maplewood, in the firsi paragraph, should be referred to as a "Minnesota
municipal corporation," } not a political body corporate and politic of the State of
Minnesota.
Numbered Paragraph 2, entitled Purchase Pace
As drafted by Mr. Mogren, he would be able to deposit the earnest money in an
interest beaTing acco =t, aad upon receipt of an executed purchase agreement, the
earnest money would not be applied to ibe purchase price, it would instead be
refunded to Mr. Mogren. However, under the samc section it indicates that upon
execution of the Purchase Agreement, Mr. Mogren only owes the City of Ma plewood
the balance of $154,000,00, If this section were to stand as follows, the City of
Maplewood would be losing $5,000.00 on this transaction.
Given the above, i would suggest that the Purchase Agreement be changed as follows:
a. 11 $5,000.00 earnest money ( "earnest money ") s hall be de posited with C.I.
Title (agent for Chicago Title Insurance Company) upon receipt by Buyer of
a filly executed copy of this Agreement. The earnest money with all interest
earned thereon, shall be delivered to the Seller upon closing_"
22
I
O ;t -12-01 02:12pm From-KELLY AND FAWCETT 6512286018 T -763 P -03/04 F -621
Ms. Melinda Coleman
Assistaw City Manager
City of _ 11 4aplewood
October 12, 2001
Page 2
3. Numbered Section 7 entitled Conditions to buyer's performwice
Section F, entitled, Environmental Audit, should be changed to 'phase 1
Environmental Site Assessment." As to the dates referenced in the sections on
Goverment Approvals, City Approval ofPlans and Specifications and Completion
of the Phase 1, 1 will leave that to your discretion as to whether those dates are
feasible or whether the they need to be changed.
4. Numbered Section 9 entitled Re2resentations, Warranties and Covenants of Seller
Section F, entitled Environmental.
The first sentence of the paragraph should be changed to add the following language:
Frio The best of Seller's knowlcdae, Bello has not cngagcd in, and prior to the
closing date, will not engage in, the business of generating, transporting,
storing, treating or disposing of hazardous substances or hazardous waste,
classified as such, under any federal, state or local law, statute, ordinance,
rule or regulation, including, but not limited to, asbestos, asbestos coning
materials. To the best of Seller's knowledge, the property has not been used
for the storing or disposal of hazardous substances, including., but not limited
to, asbestos, asbestos containing materials, PCB's or other toxic materials,
deeming or to the best of Seller's knowledge, prior to the period that Seller
has been an owner of The property."
Further, in this same paragraph, there is d refe=nce to Sherburne County, this should
be changed to Ramsey County.
Numbered Section 11, entitled, Pre - Closing Cove =s of Seller
Section D, should be changed as follows, "Seller shall cooperate with uyer as
reasonably necessary in any application for Governmental Approvals."
6, Numbered Section 12, entitled., Condemnation.
This entire section should be deleted.
7. Numbered Section 13, entitled, Commission.
The second sentence which states: "At closing, Seller shall be solely responsible to
pay the commission due ("Commission") any real estate agent for the sale of the
Property-," should be deleted in its entirety. The rest of the paragraph is acceptable.
23
ogt -12-01 02 :12pm From -KELLY AND FAWCETT 8512238019 T -793 P.04/04 F -631
Ms. Melinda Coleman
Assistant City Manager
City of Maplewood
October 12, 2001
'age 3
8. slumbered Section 14, entitled Closing Costs and _ Expenses number 2, Cost of
' Prenaration of this Survey
Given that a survey has not been completed of the property and as estimate to
prepare the survey is approximately $3,000.00 to $4,00{1.00,1 would suggest splitting
this cost equally between the Seller and the Buyer. N=ber 2, would then be
changed to: "one half (V2) of the cost of the preparation of the survey ", and that exact
language should also be added under the Bayer's obligation number 6.
Under the sa=ne section, number 4, entitled., Amy Real Estate Broker's Commission
should be deleted in its entirety.
This is no legal description in the Purchasc Agreement. We have drafted one,
enclosed as Exhibit A, which needs to be incorporated into the Agreement. The legal
descrripTion as is does include the 20 foot strip owned by Genuine Farts Company.
Further, l have been speaking with Tory Ekstrand regarding some issues with respect
to the above twenty (2-0) foot suip of property. We have requesTed Capital Title do
a tract search on that piece so we can know exactly what needs to be done in an
acgLdsition process, and further, there may be a mortgage on it. We anticipate the
results of this search early next week.
Please feel free to contact me if you have any further questions or concerns in this regard.
Respectfully yours,
ILL
I i L
FAW ETT, P.A.
Cathleen M. Loucks
Chad Lemmons
i L:tlf
Enclosure
cc: Mr. Richard F =man.
Mr. 'Tom Ekstrand
24