HomeMy WebLinkAbout2B, Hazelnut Park Acquisition ARVEN HILLS
MEMORANDUM
DATE: January 31, 2011
TO: Honorable Mayor and City Councilmembers
Patrick Klaers, City Administrator
FROM: Jill Hutmacher, Community Development Director
SUBJECT: Hazelnut Park Acquisition -
Back-ground
At the November 15, 2010, work session, the City Council directed staff to proceed with the
purchase of approximately 70,000 square feet of land at $3 per square foot from Trinity Lutheran
Church. The land will be used to enlarge the City's adjoining Hazelnut Park. For the past
several years, the City has had a maintenance agreement with Trinity Lutheran for the use of
their parking lot. Hazelnut Park does not have its own parking lot.
Through the purchase, the City is securing additional land for park purposes. As a term of the
sale, the City is requiring that the joint use of the parking lot be made permanent.
Land Acquisition
The City requires that the church plat the property prior to the City's acquisition. The parcel to
be purchased by the City will be separated from the remainder of the church property and will be
platted as Lot 2, Block 1, Trinity Lutheran of Lake Johanna Addition. City staff asked the
church's surveyor to create a parcel of approximately 70,000 square feet that included the access
point and sidewalk from the parking Iot to the park. The surveyor did so, but the resulting parcel
appeared to be smaller than what the City would need to accommodate a soccer field. The
surveyor revised the proposed plat. The revised Lot 2 comprises 71,474 square feet which would
result in a sale price at $3 per square foot of$214,422. The proposed plat is attached.
City of Arden Hills
City Council Work Session January 31, 2011
Page 1 of 2
Purchase and Joint Use Agreements -
The City Attorney has drafted purchase and joint use agreements. City staff has reviewed the -_
agreements, but they have not yet been provided to Trinity Lutheran Church. The agreements
are subject to change pending the church's review.
Following are key deal terms in the draft purchase agreement:
• The City will purchase 71,474 square feet at $3 per square foot($214,422). _
• Earnest money of 1% ($2,144)will be deposited with the Seller.
• The Seller will obtain a title commitment. The City will purchase title insurance.
• The City has the right to inspect the property. Staff recommends that a Phase I
Environmental Site Assessment be completed for due diligence.
• At this point, closing is estimated to occur on or before April 15, 2011.
• The Seller will deliver a Warranty Deed and an executed copy of the joint use agreement
at Closing.
• The Seller will obtain plat and final PUD approvals from the City prior to closing. The
City is not obligated to approve the plat or final PUD unless applications are in
compliance with City regulations and standards.
• The Seller indemnifies the City against any claims by a realtor or broker.
Following are key deal terms in the draft joint use agreement:
• The City, its employees and agents, and the public may use the Parking Lot between 8
a.m. and 10 p.m. in conjunction with their use of Hazelnut Park.
• The joint use agreement can be terminated by the City with 60 days written notice. The
agreement may not be terminated by the Church without the City's consent.
• The joint use agreement will be recorded against the church property and will be binding
on successors and assigns.
The current maintenance agreement will remain in place and will be reviewed at a later date.
uestions
1. Should the City proceed with a purchase agreement for 71,474 square feet of land from
Trinity Lutheran Church?
2. Does the City Council have any direction to staff related to the proposed terms of the
purchase agreement or joint use agreement?
Attachments
A. Draft Preliminary Plat of Trinity Lutheran of Lake Johanna Addition
B. Draft Purchase Agreement
C. Draft Joint Use Agreement
City of Arden Hills
City Council Work Session January 31, 2011
Page 2 of 2
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REAL ESTATE PURCHASA R>H ENT
Y.XivS'�f
This Real Estate Purchase Agreement " .a ment"), made - d as of the day of
Bran of Labe Johanna' MWN "Seller" and Ci of 2011, by and between Trinity l ( ) ty
I
Arden Hills, (the "Purchaser").
In consideration of the mutuapI tenants andd ngs contained her the parties
agree as follows:
1. Sale and Purchase of Property.'14" Sllex agree ell, and Purchaser agrees to
purchas eal prope4 ituated x y° ity o en Hills,County of Ramsey,
in,d ,,
State 'nnes Prop e � . �gz�bed`" � ws:
e w will be pla ed as Lot 2, Block 1, Trinity
Lu oLa1enJ hanna ddition. The proposed Lot 2,
ock Y1 �uuty Lake Johanna Addition is
xim 71,474 q feet.
nL
2. urchase Pri -Par est'Iv one . Purchaser agrees to pay to Seller, as the purchase
e for the Pr`oety the stn of Two Hundred Fourteen Thousand Four Hundred
Two 000 Dollars ($214,422) (the "Purchase Price"). As earnest money,
Purc ` s or shall paSeller Two Thousand One Hundred Forty Four 00/100 Dollars
($2, <
144) ?ome--ecution of this Agreement by the parties.
3. Title. Seller, at its cost, will obtain a commitment for an owner's title insurance
policy (ALTA Form 1990) issued by a title insurance company acceptable to the
Purchaser(the"Title Company"),naming Purchaser as the proposed owner insured of
the Property in the amount of the Purchase Price (the "Commitment"). The
Commitment shall have a current date as its effective date and shall commit to insure
marketable title in Purchaser,free and clear of all mechanics'lien claims,questions of
survey,unrecorded interests,rights of parties in possession or other exceptions. The
Commitment shall set forth all levied real estate taxes and special assessments and
shall contain such endorsements as Purchaser may require,including but not limited
.. ... . .... _ . ..
to, a zoning endorsement insuring Purchaser that the ownership, use, operation and
occupancy of the Property as of the closing date complies with all applicable zoning
laws,codes,ordinances and regulations and does not constitute a nonconforming use
thereunder. Said Commitment shall have attached copies of all instruments or record
which create any easements or restrictions which are referred to in Schedule B of the
title commitment. Purchaser will be allowed after receipt of the Commitment and
the Survey (as hereinafter defined) an examination thereof and to make any -
objections to the marketability of the title to the Property,said objections to be made
by written notice or to be deemed waived.
If the title to the Property as evidenced by the Commitment, survey, and searches
together with any appropriate endorsements,is not good and marketable of record in
Seller and is not made so by the closing date, Purchaser may either:
3.1 Terminate this Agreement by giving written notice to Seller in which event -_
this Agreement shall become null and void;earnest money shall be returned
to Purchaser; and neither party shall have any further right or obligation
hereunder; or
3.2 Elect to accept the title in its unmarketable condition by giving written notice
to Seller, in which event Purchaser shall hold back adequate funds from the
portion of the Purchase Price payable at the closing to cure the defects and
apply said holdback funds for the cost of curing such defects, including
attorneys' fees, and pay the unexpended balance to Seller. (If the amount of
said holdback cannot be mutually agreed to by Seller and Purchaser, the
issuer of the Commitment shall determine the amount of said holdback).
4. Survey. Seller has provided a survey of the Property to Purchaser.
5. Inspection. At Purchaser's expense,Purchaser, its agents and designees, are hereby
granted the right at any time or times after the date hereof to inspect,analyze,and test
the Property. Purchaser shall hold Seller harmless from any liability resulting solely
from the entering upon the Property or the performing of any of the tests or
inspections referred to in this Section 5 by Purchaser,its agents or designees but not
from liability resulting from the presence or discovery of Hazardous Substances(as
hereinafter defined) on the Property.
6. Covenants and Warranties of Seller. Seller covenants and warrants to Purchaser as
follows:
6.1 Ownership of Property. Seller is the owner of good, marketable, and
insurable fee title to the Property free and clear of all title defects, options,
rights of first refusal,easements,restrictive covenants,encroachments,survey
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....... .... ................ ............... ........................ ..... ......... .._......
defects, restrictions or limitations on the Property, liens or encumbrances,
except drainage easement of record.
6.2 Condemnation. Seller has not received any notice of, nor does Seller have
any knowledge of any pending, threatened or contemplated condemnation =
proceeding affecting the Property,or any part thereof, or of any sale or other
disposition of the Property or any portion thereof in lieu of condemnation.
6.3 Casuallty. No portion of the Property is located in a special flood hazard area
designated by Federal governmental authorities.
6.4 Encroachments. To Seller's knowledge, there are no encroachments upon
any of the Property and no portion of any improvement encroaches upon any
property not included within the Property.
6.5 Fees and Charges. Seller shall pay all closing and escrow fees and charges,if
any.
6.6 Change of Ownership. From the date hereof Seller agrees not to enter into
leases, material agreements, or contracts, and to incur no major expenses
relating to the Property without Purchaser's prior written consent.
6.7 Mechanics' and Other Liens. Seller does not owe money to any architect,
contractor, subcontractor or materialman for labor or materials performed,
rendered or supplied to or in connection with the Property. There is no work
being done at or materials being supplied to the Property at the date hereof.
6.8 Real Estate Taxes/Assessments. Seller does not have knowledge of any
pending or contemplated reassessment of the Property. Seller has paid all
real estate taxes,if any,on the Property due and payable through 2010. Seller
and Purchaser agree to prorate real estate taxes, if any,payable in 2011 as of
the date of Closing. Seller shall pay all special assessments and or levies
pending as of the date of Closing.
6.9 Hazardous Substances. Seller does not currently use the Property for disposal
or storage of any Hazardous Substance and Seller has no knowledge of any
noxious, toxic, hazardous, unsafe or environmentally unsound materials,
substances, wastes or Hazardous Substances (as hereinafter defined) in, at,
under or on the Property whether there by intent, spill, release, discharge,
disposal, storage or any other means. Seller has not received any notice from
any government agency,board,commission,authority or any other entity,and
is not a party to any legal or administrative action or proceeding,concerning
or relating in any way to the spill,release,discharge,transportation,disposal,
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storage or presence of hazardous or regulated substances or wastes in, at,
under, on, or concerning the Property, including any pending, or _
contemplated search or investigation of the Property or any portion thereof
with respect thereto. Any Hazardous Substances previously stored on the
Property and the containers in which such substances were stored have been
disposed of in compliance with applicable federal,state and local regulations.
Seller has no knowledge of any activity on the Property which would subject any owner or operator thereof to damages,penalties,injunctive relief or costs
or remediation or cleanup under any federal, state or local law. For the
purposes of this Agreement, the terra "Hazardous Substance" means that
and/or similar terms as defined in Section 104(14) of the Comprehensive
Environmental Response, Compensation a Liability Act of 1980, and as
amended,42 U.S.C. See.9601 et seq. (14),and Section 2(8)of the Minnesota
Environmental Response and Liability Act, and as amended, Minnesota
Statutes Sec. 115B.02(8), and includes the term "regulated substance" as —
defined in Section 9001(2) of the underground Storage Tank Act, and as
amended,42 U.S.C. Sec.6991(2)and the term"hazardous waste"as defined
in Section 1004(5) of the Resource Conservation and Recovery Act, and as
amended, 42 U.S.C. Sec. 6903(5), and includes all regulations issued
pursuant to any of the above statutes, and any unsafe, noxious, toxic or
hazardous substance or similar terms under any other state, federal or local
law, and any other applicable environmental,land use or similar act,statute,
ordinance or regulation or as alleged or determined under common law. The
term"Hazardous Substance"includes asbestos and related substances,PCBs,
and gasoline, kerosene and all other liquid or viscous petroleum products.
Seller has complied and caused the Property to comply with all laws,
ordinances,rules,regulations,and authorities having jurisdiction over Seller,
the Property and the use by Seller of the Property,relating to any Hazardous
Substances or material.
7. Closing. Subject to the conditions contained herein,the closing shall take place on or
before the 15"'day of April,2011 ("Closing Date"). The closing may take place on
such other date as is mutually agreed upon, or such other date as this transaction
actually closes as determined in accordance with the provisions of this Agreement.
The closing shall take place at the offices of the Title Company or at such other place
as is mutually agreeable. At the closing, Seller shall deliver to Purchaser:
7.1 A Warranty Deed,properly executed on behalf of Seller in recordable form
with all applicable transfer taxes paid and stamps, if any, affixed thereto.
7.2 A standard Seller's Affidavit with respect to judgments, bankruptcies, tax
liens, mechanics liens, parties in possession, unrecorded interests,
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encroachment or boundary line questions, and related matters, properly
executed on behalf of Seller.
7.3 The Commitment certified to current date.
7.4 An Affidavit of Seller in form and content satisfactory to Purchaser stating
that Seller is not"foreign persons"within the meaning of Section 1445 of the
Internal Revenue Code.
7.5 An executed copy of the Parking Lot Joint Use Agreement, attached and
incorporated as Exhibit A.
Upon delivery of the foregoing items,Purchaser shall deliver to Seller the portion of
the Purchase Price payable at the closing.
8. Contingencies. Notwithstanding anything to the contrary contained in this
Agreement, the consummation of this Agreement and the closing provided in
paragraph 7 hereof is hereby expressly conditioned upon Purchaser receiving
assurances satisfactory to Purchaser, in Purchaser's sole discretion, that:
8.1 Accuracy of Representations and Warranties. The representations and
warranties of Seller contained in this Agreement shall be true in all material
respects on and as of the Closing Date with the same force and effect as
though made on and as of the Closing Date(i.e., a representation that a state
of facts exists on or as of the date hereof shall be deemed to be a
representation that such state of fact exists on or as of the Closing Date,and a
representation that a state of facts has or has not changed between a date prior
to the date hereof and the date hereof shall be deemed to be a representation
that such state of facts has or has not changed between such prior date and the
Closing Date), except as affected by transactions contemplated hereby and
except to the extent that any such representations or warranties which were
made as of a specified date shall have been true on and as of such date.
8.2 Performance of Agreement. Seller has performed all obligations and
agreements and conditions contained in this Agreement on Seller's part to be
performed or complied with at or prior to the Closing Date.
8.3 City Approvals. Seiler shall have obtained final plat approval for Trinity
Lutheran of Lake Johanna Addition and final PUD approval from the City of
Arden Hills prior to the Closing Date. Nothing herein shall obligate the City
of Arden Hills to approve the final plat of Trinity Lutheran of Lake Johanna
Addition or a final PUD unless such applications are in compliance with all
City regulations and standards.
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...... ...... .
8.4 Due Diligence. If during the inspection and due diligence,it becomes aware
of any issues related to the Property that render the City's acquisition of the
property ill advised, in the City's sole discretion,the City may terminate the
Purchase Agreement, and the earnest money will be returned to the
Purchaser.
If the contingencies set forth in this paragraph 8 are not satisfied, Purchaser shall -
have the right to terminate this Agreement by giving written notice of termination to
Seller on or before the Closing Date and, if terminated pursuant hereto, this
Agreement shall be null and void; the earnest money shall be returned to the
Purchaser; and neither party shall have any further rights, obligations, or liability
hereunder.
9. Indemni Seller warrants and represents that they will indemnify and save
Purchaser harmless from any loss,cost,or expense suffered or incurred by Purchaser,
including attorneys' fees, arising out of, related to, or in any way connected with, a
breach by Seller of its obligations, warranties, representations or agreements under
this Agreement. Purchaser warrants and represents that it will indemnify and save
Seller harmless from any loss, cost, or expense suffered or incurred by Seller,
including attorneys' fees, arising out of, related to, or in any way connected with, a
breach by Purchaser of its obligations, warranties, representations or agreements
under this Agreement.
10. Notices. All documents to be delivered and all correspondence and notices to be
given in connection with this Agreement shall be in writing and given by personal
delivery or sent by registered or certified mail, return receipt requested, postage
repaid, addressed as follows:
If to Purchaser: City Administrator
City of Arden Hills
1245 West Highway 96
Arden Hills, MN 55112
With a copy to: Jerome P. Filla
Peterson, Fram& Bergman, PA
55 East Fifth Street
Suite 800
St. Paul, MN 55101
If to Seller: Trinity Lutheran of Lake Johanna
3245 New Brighton Road
Arden Hills, MN 55112
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Attention:
With a copy to:
Each such mailed notice or communication shall be deemed to have been given to or
served upon, the party to whom it is addressed on the date the same is deposited in the United States mail, postage prepaid, properly addressed in the manner above
provided. Either party hereto may change such party's address for the service of
notice hereunder by written notice of said change to the other party hereto, in the
manner above specified ten (10)days prior to the effective date of said change.
11. Commissions. Seller warrants and represents that it has dealt with no realtor or
broker in connection with this transaction and will indemnify, defend and hold
harmless Purchaser against any claim made by an agent or broker for a commission
or fee based on acts or agreements of Seller.Purchaser warrants and represents that it
has not dealt with a realtor or broker in connection with this transaction and that it
will indemnify,defend and hold harmless Seller against any claim made by an agent
or broker for a commission or fee based on acts or agreements of Purchaser.
12. Survive Closing. All of the covenants,warranties,and provisions of this Agreement
shall survive and be enforceable after the closing of this transaction.
13. Time of the Essence. Time is of the essence in the performance of this Agreement.
14. Entire Agreement. This Agreement(including the Exhibit hereto)supersede all prior
agreements and understanding, oral or written, between the parties hereto with
respect to the subject matter hereof and cannot be changed or terminated orally,and
this Agreement constitutes the entire agreement of the parties as to the matters set
forth herein.
15. 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.
IN WITNESS WHEREOF,the Seller has caused this Agreement to be duly executed in its
name and behalf by its duly authorized representatives and the Purchaser has caused this Agreement
to be duly executed in its name and behalf by its duly authorized representatives on or as of the date
first above written.
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CITY OF ARDEN HILLS, -
a Minnesota statutory city
David Grant, Mayor
ATTEST:
Patrick Klaers, City Administrator
STATE OF MINNESOTA }
} ss.
COUNTY OF )
On this day of , 2011, before me, a notary public within and for said
county, personally appeared David Grant and Patrick Klaers, to me known to be respectively the
Mayor and City Administrator of the City of Arden Hills,and they executed the foregoing instrument
and acknowledged that they executed the same by authority of and on behalf of City of Arden Hills.
Notary Public
8
TRINITY LUTHERAN OF
LAKE JOHANNA
By:
Its:
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 2011,before me, a notary public within and for
said county, personally appeared , the of Trinity =
Lutheran of Lake Johanna and has executed the foregoing instrument and acknowledged that they
executed the same by authority of and on behalf of Trinity Lutheran of Lake Johanna.
Notary Public
Arden Hills\Agreements\RE Purchase Agmt.vMoc
9
........... ..... . ............ ......... ........ .. ................. ................................ ..................................... ...........................
EXHIBIT A
Parking Lot Joint Use Agreement
10
JOINT USE AGREE N `
CITY OF ARDE
TRINITY LUTHERAN A J NA
PARKI OT
{H
1.0 Parties. This Joint Use Agreement C' < h ent")is dated the ' ;clay of _
2011 and is entered into by and between th of A Hills, a Mi e ota statutory city
3�t
("City") and Trinity Luthe, • of Lake Jo a ` innesota no rofit corporation
("Trinity") ` ✓
2.0 Recitals, Jay,
A. Trimtys - ; Hof Lot 1, ock l uthean of Lake Johanna Addition
y x ti ;3
("Triri roperty 41 ;
B. A portione operty 5 been improved with a bituminous driveway
ftar
oNe on o d tha bituminous parking surface (both herein
s,
� ` ' g�hot"), a strated liiUit A attached and incorporated.
N '! ., 5 �
C Yf ,The City, co ent the execution of this Agreement, has purchased Lot 2,
ock 1,Trini therari`a ake Johanna Addition from Trinity("City Property").
D. Th h owns, tains and allows public use of Hazelnut Park which is located
adj aced.the ;Property.
3.0 Terms and Condi s. As part of the consideration for the City's purchase of the City
Property, the parties agree:
A. The City, its employees and agents, and the public may use the Parking Lot any day
during the hours of 8:00 a.m, to 10:00 p.m,in conjunction with their use of the City
Property and/or Hazelnut Park.
B. This Agreement can be terminated by the City upon sixty(60)days written notice to
Trinity. Trinity may not terminate the Agreement without the City's written consent.
C. This Agreement shall be binding upon and inure to the benefit of the parties'
successors and assigns.
IN WITNESS WHEREOF,the parties have hereunto set their hands the day and year first =
above written.
CITY OF ARDEN HILLS,
a Minncsota statutory city
David Grant, Mayor
ATTEST:
Patrick Klaers, City Administrator =
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 2011, before me, a notary public within and for said
county, personally appeared David Grant and Patrick Klaers, to me known to be respectively the
Mayor and City Administrator of the City of Arden Hills,and they executed the foregoing instrument
and acknowledged that they executed the same by authority of and on behalf of City of Arden Hills.
Notary Public
2
TRINITY LUTHERAN OF
LAKE JOHANNA
By:
Its:
STATE OF MINNESOTA )
ss.
COUNTY OF )
On this day of , 2011, before me, a notary public within and for
said county, personally appeared the of Trinity
Lutheran of Lake Johanna and has executed the foregoing instrument and acknowledged that they
executed the same by authority of and on behalf of Trinity Lutheran of Lake Johanna.
Notary Public
Arden HillslAgreementsVoint Use Agreement-Trinity.vMoc
3
EXHIBIT A
Parking Lot
4