2008-03-05 Purchase AgreementPURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made to be effective as of the _L day of
~_ ~,~., 2008, by and between DONALD G. BARTHEL (the
"Seller"), and CITY OF ALBERTVILLE, MINNESOTA, (the "Purchaser") a
Minnesota municipal corporation.
In consideration of the mutual covenants and undertakings contained herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. .Purchase of Property. The Seller hereby agrees to sell, and the Purchaser
hereby agrees to purchase, for the Purchase Price (as defined below) and in accordance
with the provisions of this Agreement, that certain parcel of real property consisting of
approximately 83,675 square feet of surface area situated in the City of Albertville,
County of Wright, State of Minnesota, and being more particularly described as Lot 1,
Block 1 in the proposed plat of Barthel Commercial Park Third Addition shown on the
attached on Exhibit A, together with all improvements located thereon and with all the
appurtenant rights, mineral rights, privileges and easements belonging thereto, subject
only to the Permitted Exceptions (as defined below) (the "Property").
2. Purchase Price. The Purchaser agrees to pay the Seller, as the purchase
price for the Property (the "Purchase Price"), an amount equal to Four Hundred Fifty-
Eight Thousand Dollars ($458,000.00). The Purchase Price shall be payable by the
Purchaser as follows:
(a) $5,000 by the Purchaser's check to be delivered to Seller upon acceptance
of this Agreement by Purchaser and Seller as earnest money (the "Earnest
Money"); and
(b) The balance in cash at the closing.
3. Title. The Purchaser shall procure its own abstract of title at its expense
for the Property. The Purchaser will be allowed 30 days after the execution of this
Agreement to examine title and for making any objections to the marketability of the title
to the Property, such objections to be made by written notice to the Seller within such 30
day period. If no such written objections are made by the Purchaser, then the Purchaser
shall be deemed to have accepted the condition of the title as stated in the Commitment
and the condition of the Property as shown on the Survey.
If any objections are so made to the marketability of the title to the Property, the Seller
shall be allowed sixty (60) days after the making of such objections by the Purchaser to
cure such objections and to make title marketable. The Date of Closing and the payments
hereunder required shall be postponed pending the correction of title, but upon correction
of the title and within ten (10) days after written notice of such correction given by the
Seller to the Purchaser, the Seller and the Purchaser shall perform this Agreement
according to its terms. Title to the Property shall not be deemed objectionable on account
of the Permitted Exceptions.
If the condition of the title and the condition of the Property is not marketable in the
Seller and is not made so within sixty (60) days after the date of making written
objections thereto by the Purchaser, or is not marketable of record in the Seller on the
Date of Closing, then the Purchaser shall have the following options:
(i) The Purchaser may terminate this Agreement by giving written notice to
the Seller, in which event this Agreement shall become null and void and
neither party shall have any further right or obligation hereunder, and the
Earnest Money shall be returned immediately to the Purchaser; or
(ii) The Purchaser may elect to waive the objections and accept the title or the
.condition of the Property in its unmarketable condition, in which event the
parties shall proceed to closing in accordance with the terms of this
Agreement.
If the Purchaser does not elect to proceed under Section 3(ii) above by giving written
notice to the Seller prior to the expiration of the sixty (60) day period described above,
then the Purchaser shall be deemed to have elected to proceed under Section 3(i) above.
4. Inspection. At the Purchaser's sole expense, the Purchaser, its agents and
designees are hereby granted the right at any time or times after the date of this
Agreement to enter upon and to inspect, analyze and test the Property. The Purchaser
shall pay the costs of any such tests, analysis and inspections, and shall indemnify and
hold the Seller and the Properly harmless from and against any liability, damage or loss
whatsoever arising or resulting from the entering upon the Property or the performing of
any of such tests, analysis or inspections referred to in this Section 4 by the Purchaser, its
agents or designees.
5. Real Estate Taxes and Special Assessments. The Seller shall pay, on or
before the Date of Closing, (a) all real estate taxes due and payable with respect to the
Property in all years prior to the year of closing and (b) all deferred real estate taxes for
the Property for the year of closing and for each year prior to the year of closing,
regardless of when such deferred real estate taxes may be due and payable (such deferred
taxes include without limitation any taxes deferred under any "green acres" program).
The Purchaser shall pay all real estate taxes due and payable with respect to the Property
in all years subsequent to the year of closing. Except for the real estate taxes referenced
in Section 5(b) above (which are the sole responsibility of the Seller), all real estate taxes
due and payable in the year of closing shall be prorated on a calendar year basis between
the Seller and the Purchaser as of the Date of Closing based upon the parties' respective
periods of ownership and possession of the Property in such year. The Seller shall pay,
on or before the Date of Closing, all special assessments levied against the Property
as of the date of this agreement.
6. Conditions to Purchase Agreement. The obligations of the Purchaser
under this Agreement are hereby conditioned upon the following to occur, all such
conditions running in favor of Purchaser:
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(a) That purchaser enter into an agreement with Independent School District
No. 885 and the City of St. Michael acceptable to Purchaser in which ISD
885 and the City of St. Michael agree to fund all or a portion of the
purchase price of the Property under this Agreement.
If Purchaser fails to reach such an agreement acceptable to Purchaser within
90 days of the date of this Agreement, Purchaser may, at its option, declare
this Agreement terminated via written notice to Seller within 120 days of the
date of this Agreement and all Earnest Money shall be immediately returned
to the Purchaser.
7. Closing and Possession. The date of closing of this Agreement (the
"Date of Closing") shall be no later than June 30, 2008, provided such closing date may
occur at a later time if necessary to fulfill purchase contingencies or make title marketable
pursuant to the terms of this Agreement. The closing shall be held at a time and place
mutually agreeable to the parties, and the Purchaser shall have possession of the Property,
if not sooner given to the Purchaser, from and after the Date of Closing. The Seller shall
remove from the Property all personal property not being purchased hereunder and all
debris prior to the Date of Closing. At the closing, the Seller shall deliver to the
Purchaser the following:
(a) A warranty deed conveying to the Purchaser marketable title to the
Property;
(b) An affidavit of the Seller, in form and content satisfactory to the
Purchaser, stating that the Seller is not a "foreign person" within the
meaning of Section 1445 of the Internal Revenue Code;
(c) An affidavit of the Seller, in form and content satisfactory to the
Purchaser, stating that there are, as of the Date of Closing, no outstanding,
unsatisfied judgments, tax liens or bankruptcies against the Seller, no
labor, services or material machinery furnished to the Property for which
mechanic's liens could be filed and no unrecorded interests in the Property
which have not been fully disclosed in writing to the Purchaser, together
with whatever standard affidavits and other instruments which may be
reasonably required by the Purchaser's attorney to issue a title opinion
declaring marketable title in favor of Purchaser.
(e) The appropriate federal income tax reporting form, if any is required; and
(f) An executed plat of Barthel Commercial Park Third Addition in
substantially the same form as shown on the attached Exhibit A; and
(g) Any other documents required pursuant to this Agreement.
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Upon delivery of the foregoing items, the Purchaser shall deliver to the Seller at the
closing the following:
(h) The balance of the Purchase Price by certified check or wire transfer of
federal funds;
(i) An .affidavit of the Purchaser, in form and content satisfactory to the
Seller, stating that the Purchaser is not a "foreign person" within the
meaning of Section 1445 of the Internal Revenue Code; and
(j) Any other documents required pursuant to this Agreement.
At time of the closing, Seller and Purchaser shall pay their respective shares of property
taxes due in the year of closing if such payment is required to record the plat of Barthel
Commercial Park Third Addition. Seller shall cooperate with Purchaser in executing
whatever documents may be necessary to record said plat at the Wright County
Recorder's Office, provided Purchaser pays all recording fees.
8. Costs and Expenses; Prorations.
(a) The Seller and the Purchaser will each be responsible for its legal,
accounting and other expenses associated with the transaction contemplated by this
Agreement up to and including the date final adjustments are made pursuant to this
Section. The closing fees of any title company involved in the closing shall be paid by
the parties in equal shares.
(b) For the. purposes of any proration pursuant to this Agreement, the Seller
shall be considered to be the owner and possessor of the Property through and for the
entire Date of Closing.
9. Condemnation. In the event that, prior to the Date of Closing,
proceedings for the condemnation of the Property or any portion thereof, are commenced
by governmental authority having jurisdiction to do so, the Purchaser shall have the
option (a) to terminate this Agreement by written notice to the Seller, whereupon the
Earnest Money shall be immediately returned to the Purchaser, or (b) elect not to
terminate this Agreement on account thereof, whereupon the parties shall proceed to
closing. In the event of any such condemnation, the Seller agrees to immediately notify
the Purchaser of such condemnation and to provide to the Purchaser all information in the
Seller's possession regarding the probable amount of any condemnation award
recoverable on account thereof, and, if this Agreement is not terminated on account
thereof, the Seller shall either (i) assign to the Purchaser its rights to any such
condemnation award or (ii) reduce the Purchase Price on a pro rata per square foot basis
for all portions of the Property condemned by such governmental authority (at which time
the Purchaser shall have no right to any of the condemnation proceeds, including any
claim for reduction in value to the remaining portions of the Property), the choice
between subsections 9(a) or 9(b) above to be at the sole discretion of the Purchaser. If the
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Purchaser does not elect to proceed under subsection 9(b) above by giving written notice
to the Seller prior to the Date of Closing, then the Purchaser shall be deemed to have
elected to proceed under subsection 9(a) above.
10. Conditional Right of Repurchase. In the event the Buyer or its
successors in interest do not construct on the Property 1) an ice arena, or 2) an outdoor
sheet of ice, or 3) a parking lot for use by the patrons of the ice arena abutting the
Property on its north side (collectively, "Arena Improvements"), Seller shall have the
right to repurchase the Property from the Buyer for the sum of the following amounts,
subject to the conditions set out below:
A. The purchase price paid by Buyer under this Agreement; and
B. The cost of any soil correction performed by Buyer upon the Property;
and
C. The sum of l0A and lOB above, multiplied by the percentage
cumulative change in the Consumer Price Index as measured by the
federal government from the date of closing under this Agreement to
the date Seller repurchases the Property from Buyer.
In the event no such Arena Improvements have been constructed on the Property as
required under this paragraph 10, and Buyer either 1) declares its intent to construct
improvements on the Property other than Arena Improvements, or 2) proposes to sell the
Property to a third party for use other than for Arena Improvements, Seller shall be
entitled to repurchase the Property as described in this paragraph 10. Seller shall have 60
days from the date Buyer notifies Seller of Buyer's intent to sell the Property or to use it
for other than Arena Improvements. Buyer shall personally deliver such notice or send it
to Seller at the Seller's address as set out in this Agreement, unless Seller provides Buyer
with a different address in writing prior to the time such notice is sent. Exercise of this
right shall be effective upon delivery of a written notice of intent to purchase the Property
delivered to the Albertville City Clerk at the Albertville City Hall. Upon proper exercise
of such right, Buyer and Seller shall close on such sale within 90 days of exercise by
Seller. This reversionary interest shall survive the closing.
11. Notices. All documents to be delivered and all notices, demands, requests
or other communications which may or shall be given in connection with this Agreement
shall, in order to be effective, be in writing and be given by personal service or sent by
United States certified mail, return receipt requested, postage prepaid, addressed as
follows:
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If to the Purchaser: CITY OF ALBERTVILLE, MINNESOTA
5959 Main Avenue NE
P. O. Box 9
Albertville, MN 55301
Attention: Larry Kruse
City Administrator
with a copy to: COURI & MACARTHUR & RUPPE
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376-0369
Attention: Mr. Michael Couri
City Attorney
If to the Seller: DONALD BARTHEL
PO BOX 166
Albertville MN 55301-0166
Each such mailed notice or communication shall be deemed to have been given to the
party to whom it is addressed on the date the same is deposited in the United States
certified mail, postage prepaid, properly addressed in the manner provided above. Each
such document, notice or communication personally served upon a party shall be
effective upon service. Either party may change such party's address under this Section
by written notice of such change to the other party hereto, given in the manner above
specified, at least ten (10) days prior to the effective date of such change.
12. Binding Effect. The persons executing this Agreement on behalf of the
Seller and the Purchaser each represents that he or she has full authority to bind the Seller
or the Purchaser, as the case may be, to this Agreement, and that this Agreement has been
by him or her duly and validly executed and delivered and is the binding obligation of the
Seller or the Purchaser, respectively, and its successors and assigns, enforceable in
accordance with its terms.
13. Survival. All of the covenants, warranties and provisions of this
Agreement shall survive and be enforceable after the closing of this transaction, shall
survive the execution and delivery of any documents delivered in accordance with this
Agreement, and shall inure to the benefit of and be binding upon the Purchaser and the
Seller and their respective successors and assigns.
14. Complete Agreement. This is a final agreement between the parties and
contains their entire agreement and supersedes all previous understandings and
agreements, oral and written, relative to the subject matter of this Agreement. This
Agreement may not be changed orally and any amendment to this Agreement must, in
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order to be effective, be in writing and be signed by the party against whom enforcement
is sought.
15. Time of the Essence. Time is of the essence in the performance of this
Agreement. Either party shall have the right to seek damages for a breach of this
Agreement or the right to seek specific performance of this Agreement provided it is has
not been terminated, and further provided, as to any action for specific performance, that
such action is commenced within six (6) months after such right of action arises.
16. Captions. The paragraph headings or captions appearing in this
Agreement are for convenience only, are not a part of this Agreement and are not to be
considered in interpreting this Agreement, even if a question of intent should arise.
17. No Waiver. Neither the failure of any party in one or more instances to
insist upon performance of any term or provision of this Agreement by the other, nor the
waiver by either party in any one or more instances of any breach of any term or provision
by the other, nor the failure of any party in any one or more instances to exercise any
rights or privilege conferred by this Agreement shall be construed as thereafter waiving
any such term, provision, right or privilege.
18. Commissions; Well Disclosure; Sewage Treatment Disclosure.
(a) Each party (the "Indemnifying Party") agrees to indemnify and hold
harmless the other party from any claims for real estate or other sales commissions or fees
arising out of the purchase and sale of the Property pursuant to this Agreement to the
extent such claims are based on the acts or agreements of the Indemnifying Party, and any
damages, losses, liabilities and expenses, including without limitation attorneys fees,
arising out of or related thereto.
(b) The Seller does hereby certify that, to its knowledge, there are no wells on
the Property and does hereby agree to deliver at the closing any written disclosures related
to such facts as required by law.
(c) The Seller does hereby certify that, to its knowledge, no individual sewage
treatment system is located on or is serving the Property.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed as of the date first above written.
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The Seller
DONALD G. BARTHEL
~, _
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The Purchaser
CITY OF ALBERTVILLE, MINNESOTA
~-~~r
Donald G. Barthel Ron Klecker, Mayor
~ ~ ~ f'~.' ~-~,
Bridget Mill ,Clerk
Exhibit A
(Plat of Barthel Commercial Park Third Addition)
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