HomeMy WebLinkAboutLand Exchange agreement signedLAND EXCHANGE AGREEMENT
This Purchase Agreement (the "Agreement") is made this Ll +k day of JaK uai , 201k by and
between the CITY OF ORONO, a Minnesota municipal corporation ("City"I and JACOB J.
BARKLEY and MAUREEN L. BARKLEY, husband and wife ("Barkleys").
RECITALS
A. City is the fee owner of certain real property, situated in Hennepin County,
Minnesota and described on "Exhibit A" hereto ("City Land").
B. The Barkleys are the fee owners of certain real property consisting of three
parcels, situated in Hennepin County, Minnesota and described on "Exhibit B" hereto (`Barkley
Land"):
Parcel 1 is a residential parcel ("Residence Parcel")
Parcel 2 is a dock parcel ("Dock Parcel")
Parcel 3 is a remnant ("Remnant Parcel")
C. Whereas the Barkleys desire to acquire the City Land for additional dock area;
D. The Barkleys agree to convey the Remnant Parcel and other consideration to the
City in exchange for the City Land.
The City Land and Remnant Parcel are collectively referred to hereunder as "Properties."
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. SALE AND PURCHASE OF REAL PROPERTY. In consideration of the
agreements herein contained, the City agrees that it will convey the City Land to the Barkleys.
Concurrently, the Barkleys agree that they will convey to City the Remnant Parcel.
2. PURCHASE PRICE. In addition to the conveyance of the Remnant Parcel,
Barkleys will pay to the City for conveyance of the City Land Twenty -Five Thousand and
no/100 Dollars ($25,000.00), which the Barkleys shall pay in cash on the Closing Date.
3. ENVIRONMENTAL ASSESSMENT. As soon as possible after the execution
hereof, the City and the Barkleys shall have the right, if they desire, at their own expense to
inspect the respective properties of the other party being exchanged for the purpose of
determining whether or not there are any environmental conditions that affect the parcel to be
acquired. If the environmental inspection reveals any environmental conditions that are
unsatisfactory to the respective party, said parry may elect either of the following options:
(a) Terminate this Agreement as provided by statute; or
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(b) Proceed with the terms of this Agreement by waiving the contingency relating to
the environmental condition.
4. PHYSICAL INSPECTION. The City and the Barkleys shall each have the right
from time to time prior to the Closing, to enter upon the respective property being exchanged, to
examine the same and the condition thereof and to conduct such surveys and to make such
engineering and other inspections, tests and studies as they determine to be reasonably necessary
for their use of the property. All physical inspections shall be at the sole cost and expense of the
party making the same. The City and Barkleys will conduct all examinations and surveys of the
respective properties in a manner that will not harm or damage the respective properties so that it
cannot be restored to its prior condition or cause any claim adverse to either party, and will
restore the respective properties to the condition they were in prior to any such examination,
immediately after conducting said examination. The Barkleys and the City shall indemnify,
defend, and hold harmless each other from any and all claims for injury or death to persons,
damage to property or other losses or damages or claims, including, in each instance, reasonable
attorneys' fees and litigation costs, arising out of the action of any person or firm entering upon
the respective properties, which indemnity will survey the Closing and the termination of this
Agreement without the Closing having occurred.
5. TITLE EXAMINATION. Title Examination will be conducted as follows:
(a) Title Evidence. The City and the Barkleys will, as soon as possible after the date
of this Agreement, furnish the following (collectively, "Title Evidence") to the other
parry for the property being transferred by them under this Agreement:
(i) Title Commitment. A Commitment for Title Insurance for the respective
properties including proper searches covering bankruptcies and state and federal
judgments, federal court judgment liens in favor of the U.S., liens, and levied and
pending special assessments.
(ii) Title Objections. The City and the Barkleys shall have 10 business days
after receipt of the Title Commitment from the other party to provide the other
party with a copy of the Commitment and written objections. The City and the
Barkleys shall be deemed to have waived any title objections not made within the
10-day period above, except that this shall not operate as a waiver of either
parry's covenant to deliver a Warranty Deed under this Agreement.
(iii) Title Corrections and Title Remedies. The City and the Barkleys shall
have 60 days from receipt of written title objections by the other party to make
title marketable for their respective property. Upon receipt of title objections,
each parry shall, within ten (10) business days, to notify the other of their
intention to make title marketable within the 60-day period. Liens or
encumbrances for liquidated amounts that can be released by payment or escrow
from proceeds of closing shall not delay the closing. Cure of the defects by either
party shall be reasonable, diligent and prompt. Pending correction of title, all
payments required herein and the Closing shall be postponed.
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(b) If notice is given and either parry makes title marketable, then upon presentation
to the other party of documentation establishing that title has been made marketable, and
if not objected to in the same time and manner as the original title objections, the closing
shall take place within ten (10) business days or on the scheduled Closing Date,
whichever is later.
(c) If notice is given and either parry proceeds in good faith to make title marketable
but the 60 day period expires without title being made marketable, the other parry may
declare this Agreement void by notice, neither parry shall be liable for damages
hereunder to the other.
(d) If either party does not give notice of intention to make title marketable, or if
notice is given but the 60 day period expires without title being made marketable due to
the other parry's failure to proceed in good faith, the exclusive remedy is rescission of this
Agreement by notice as provided herein.
(e) If title is marketable, or is made marketable as provided herein, and either party
defaults in any of the agreements herein, the other party's exclusive remedy is to cancel
this Agreement as provided by statute and retain all payments made hereunder as
liquidated damages.
6. CLOSING. Each transaction is contingent upon the successful closing of the
other transaction. Unless terminated earlier or extended as provided herein, the date for closing
the sale and purchase of the Properties (the "Closing") shall be on a date mutually agreed to by
the parties but not later than March 31, 2016 (the "Closing Date"). The Closing shall take place
at the offices of a title company mutually agreed upon by the parties (the "Title Company"), or
such other location as mutually agreed upon by the parties and may be completed through
escrow of closing documents and funds with the Title Company.
7. BARKLEYS' CLOSING OBLIGATIONS. On the Closing Date, the Barkleys
shall execute and deliver to City:
(a) The duly executed limited warranty deed to the Remnant Parcel conveying title to
the City free and clear of all liens and encumbrances except the following items
(allowable encumbrances):
(i) Building and zoning laws, ordinances, state and federal statutes or other
governmental regulations;
(ii) Real estate taxes for which the City is responsible;
(iii) Those items approved by the City pursuant to Section 5; and
(iv) Reservation of any minerals or mineral rights in the State of Minnesota.
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(b) A customary affidavit that there are no unsatisfied judgments of record, no actions
pending in any state or federal courts, no tax liens, and no bankruptcy proceeding filed
against the Barkleys, and no labor or materials have been furnished to the Remnant
Parcel for which payment has not been made, and that to the best of the Barkleys'
knowledge there are no unrecorded interests relating to the Remnant Parcel.
(c) Such other documents required under Section 12(a).
(d) Such other documents as may be reasonably required by the Title Company.
8. CITY'S CLOSING OBLIGATIONS. On the Closing Date, the City shall
execute and deliver to the Barkleys:
(a) The duly executed limited warranty deed to the City Land conveying title to the
Barkleys free and clear of all liens and encumbrances except the following items
(allowable encumbrances):
(i) Building and zoning laws, ordinances, state and federal statutes or other
governmental regulations;
(ii) Real estate taxes for which the Barkleys are responsible;
(iii) Those items approved by the Barkleys pursuant to Section 5; and
(iv) Reservation of any minerals or mineral rights in the State of Minnesota.
(b) A customary affidavit that there are no unsatisfied judgments of record, no actions
pending in any state or federal courts, no tax liens, and no bankruptcy proceeding filed
against City, and no labor or materials have been furnished to the City Land for which
payment has not been made, and that to the best of City's knowledge there are no
unrecorded interests relating to the City Land.
(c) Such other documents as may be reasonably required by the Title Company.
9. PRORATIONS. The City and the Barkleys agree to the following prorations and
allocation of costs regarding this Agreement:
(a) Title Commitment. Each party will be responsible for the costs associated with
providing a title commitment for the parcel that the party is conveying. If a party desires
a title policy for the parcel the party is acquiring, that cost shall be assigned to the party
acquiring the property.
(b) Deed Tax. Each party shall be responsible for payment of the deed tax for the
property that the party is conveying.
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(c) Real Estate Taxes and Special Assessments.
(1) City Land. General real estate taxes payable in the years prior to the year of
closing and installments of special assessments will be paid by the City. General
real estate taxes payable in the year of closing, if any, shall be pro rated by the City
and the Barkleys as of the Closing Date on a per diem basis based upon a calendar
year. The City shall pay on or before the Closing Date all pending special
assessments that are due prior to the Closing. The City shall pay at Closing any
deferred real estate taxes or special assessments payment of which is required as a
result of the closing of this Agreement. The Barkleys shall pay real estate taxes
due and payable in the year following closing and thereafter.
(ii) Remnant Parcel. General real estate taxes payable in the years prior to the
year of closing and installments of special will be paid by the Barkleys. General
real estate taxes payable in the year of closing, if any, shall be pro rated by the
Barkleys and the City as of the Closing Date on a per diem basis based upon a
calendar year. The Barkleys shall pay on or before the Closing Date all pending
special assessments that are due prior to the Closing. Barkleys shall pay at
Closing any deferred real estate taxes or special assessments payment of which is
required as a result of the closing of this Agreement. The City shall pay real
estate taxes due and payable in the year following closing and thereafter.
(d) Recording Costs. Each parry will pay the cost of recording all documents
necessary to place record title to the property the party is conveying in the condition
warranted by the parties in this Agreement. Each party will pay the cost of recording the
deed for the property that that the party is acquiring.
10. CITY'S COVENANTS, REPRESENTATIONS AND WARRANTIES. The
City hereby covenants, represents and warrants to the Barkleys, as of the date of this Agreement
and as of the Closing Date, as follows:
(a) No Breach. The consummation of the transactions contemplated by this
Agreement will not constitute a default or result in the breach of any term or provision of
any contract or agreement to which the City is a party so as to adversely affect the
consummation of such transactions.
(b) Authority. The execution, delivery and performance of this Agreement by the
City has been authorized and approved by the City, and the person executing this
Agreement on behalf of the City has full authority to bind the City to the terns hereof.
(c) No Actions. There is no action, suit, legal proceeding, investigation,
condemnation or other proceeding pending or threatened against the City which may
adversely affect the consummation of the transactions contemplated by this Agreement or
affecting any portion of the City Land, in any court, before any arbitrator of any kind or
before or by any governmental body.
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(d) Liens. All work which has been performed in, on or about the City Land or
materials furnished thereto by the City or the City's contractors which might, in any
circumstances, give rise to a mechanic's or materialman's lien has been paid for or all
necessary waivers of right to a mechanic's or materialman's lien have been obtained.
(e) Wells. The City certifies that the City does not know of any "Wells" on the
described City Land within the meaning of Minn. Stat. Chapter 103I, except as disclosed
herein. This representation is intended to satisfy the requirements of that statute.
(f) Title to City Land. The City owns the City Land, free and clear of all
encumbrances.
(g) Environmental Laws. To the best of the City's knowledge, no toxic or hazardous
substances or wastes, pollutants or contaminants (as defined in applicable federal or state
laws or local ordinances) have been generated, treated, stored, released or disposed of, or
otherwise placed, deposited in or located on the City Land, nor has any activity been
undertaken on the City Land that would cause or contribute to (i) the City Land to become a
treatment, storage or disposal facility as defined in any federal or state law or local
ordinance, (ii) a release or threatened release of toxic or hazardous substances or wastes,
pollutants or contaminants, from the City Land as prohibited by any federal or state law or
local ordinance, or (iii) the discharge of pollutants or effluents into any water source or
system, the dredging or filling of any waters or the discharge into the air of any emissions,
that would require a permit under any federal or state law or local ordinance. To the best of
the City's knowledge, there are no toxic or hazardous substances or wastes, pollutants or
contaminants or other environmental conditions in or on the City Land that may support a
claim or cause of action under federal or state law or local ordinances or other
environmental regulatory requirements. To the best of the City's knowledge, no part of the
City Land is a "Wetland", as defined by law. The City will disclose to the Barkleys all
environmental reports and studies with respect to the City Land which are in the City's
possession or control.
(h) Storage Tanks. To the best of the City's knowledge, there are no above- ground or
underground tanks in or about the City Land. To the extent such storage tanks exist, each
will be duly registered with all appropriate regulatory and governmental bodies and will be
removed or brought into compliance with applicable federal, state and local statutes,
regulations, ordinances and other regulatory requirements at the City's expense.
The City will indemnify the Barkleys, their heirs, successors and assigns, against, and will
hold the Barkleys, their heirs, successors and assigns, harmless from, any expenses or damages,
including reasonable attorneys' fees, that the Barkleys incur because of the breach of any of the
above representations and warranties, whether such breach is discovered before or after closing.
Consummation of this Agreement by the Barkleys with knowledge of any such breach by the City
will not constitute a waiver or release by the Barkleys of any claims due to such breach.
Nevertheless, any claim that the City has breached a representation or warranty must be in writing
and must be given by the Barkleys within two years of the Closing Date or be deemed waived.
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11. THE BARKLEYS' COVENANTS, REPRESENTATIONS AND
WARRANTIES. The Barkleys hereby covenant, represent and warrant to the City, as of the
date of this Agreement and as of the Closing Date, as follows:
(a) No Breach. The consummation of the transactions contemplated by this
Agreement will not constitute a default or result in the breach of any term or provision of
any contract or agreement to which the Barkleys are a parry so as to adversely affect the
consummation of such transactions.
(b) No Actions. There is no action, suit, legal proceeding, investigation,
condemnation or other proceeding pending or threatened against the Barkleys which may
adversely affect the consummation of the transactions contemplated by this Agreement or
affecting any portion of the Remnant Parcel, in any court, before any arbitrator of any
kind or before or by any governmental body.
(c) Liens. All work which has been performed in, on or about the Remnant Land or
materials furnished thereto by the Barkleys or their contractors which might, in any
circumstances, give rise to a mechanic's or materialman's lien has been paid for or all
necessary waivers of right to a mechanic's or materialman's lien have been obtained.
(d) Wells. The Barkleys certify that they do not know of any "Wells" on the
described Remnant Parcel within the meaning of Minn. Stat. Chapter 103I, except as
disclosed herein. This representation is intended to satisfy the requirements of that
statute.
(e) Title to Remnant Parcel. The Barkleys own the Remnant Parcel, free and clear of
all encumbrances, excepting any mortgages, the lien of which will be removed from the
Remnant Parcel on or before the Closing Date, and further excepting any public highway
rights, if any.
(f) Environmental Laws. To the best of the Barkleys' knowledge, no toxic or
hazardous substances or wastes, pollutants or contaminants (as defined in applicable federal
or state laws or local ordinances) have been generated, treated, stored, released or disposed
of, or otherwise placed, deposited in or located on the Remnant Parcel, nor has any activity
been undertaken on the Remnant Parcel that would cause or contribute to (i) the Remnant
Parcel to become a treatment, storage or disposal facility as defined in any federal or state
law or local ordinance, (ii) a release or threatened release of toxic or hazardous substances
or wastes, pollutants or contaminants, from the Remnant Parcel as prohibited by any federal
or state law or local ordinance, or (iii) the discharge of pollutants or effluents into any water
source or system, the dredging or filling of any waters or the discharge into the air of any
emissions, that would require a permit under any federal or state law or local ordinance. To
the best of the Barkleys' knowledge, there are no toxic or hazardous substances or wastes,
pollutants or contaminants or other environmental conditions in or on the Remnant Parcel
that may support a claim or cause of action under federal or state law or local ordinances or
other environmental regulatory requirements. To the best of the Barkleys' knowledge, no
part of the Remnant Parcel is a "Wetland", as defined by law. The Barkleys will disclose to
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the City all environmental reports and studies with respect to the Remnant Parcel which are
in the Barkleys' possession or control.
(g) Storage Tanks. To the best of the Barkleys' knowledge, there are no above ground
tanks in or about the Remnant Parcel. To the extent such storage tanks exist, each will be
duly registered with all appropriate regulatory and governmental bodies and will be
removed or brought into compliance with applicable federal, state and local statutes,
regulations, ordinances and other regulatory requirements at the Barkleys' expense. To the
best of the Barkleys' knowledge there are no underground storage tanks on the Remnant
Parcel.
The Barkleys will indemnify the City, the City's successors and assigns, against, and will
hold the City, the City's successors and assigns, harmless from, any expenses or damages, including
reasonable attorneys' fees, that the City incurs because of the breach of any of the above
representations and warranties, whether such breach is discovered before or after closing.
Consummation of this Agreement by the City with knowledge of any such breach by the Barkleys
will not constitute a waiver or release by the City of any claims due to such breach. Nevertheless,
any claim that the Barkleys have breached a representation or warranty must be in writing and must
be given by the City within two years of the Closing Date or be deemed waived.
12. CONTINGENCIES.
(a) City's Contingencies. The obligations of the City under this Agreement are
expressly contingent upon each of the following (the "City's Contingencies"):
(i) The City shall have determined on or before the Closing Date, that it is
satisfied, in its sole discretion, with the results of any environmental/soil
investigations and tests of the Remnant Parcel conducted by the City, the costs of
which shall be the responsibility of the City. By executing this Agreement, the
Barkleys hereby authorize the City, its contractors, and agents to enter upon the
Remnant Parcel for purposes of conducting environmental, engineering and soil
tests.
(ii) The City shall have determined on or before the Closing Date, that it is
satisfied, in its sole discretion, with the title to the Remnant Parcel.
(iii) All of the covenants, representations, and warranties made by the Barkleys
shall be true and correct as of the Closing Date.
(iv) The Barkleys' submitting, on a form provided by the City, the necessary
document for combining the City Land, Dock Parcel and Residence Parcel under
a single tax parcel, to be submitted at closing.
(v) The Barkleys granting an easement over the City Land and Dock Parcel in
substantially the form attached hereto as "Exhibit C", to be recorded at closing
("Scenic Easement").
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(vi) The Barkleys granting an appurtenant easement for the benefit of the
property located at 3620 Eileen Street for access and a dock in substantially the
form attached hereto as "Exhibit D", to be recorded at closing ("Dock
Easement").
If the City's Contingencies have not been satisfied on or before the Closing Date, then the
City may, at the City's option, terminate this Agreement by giving notice to the Barkleys
on or before the Closing Date. The contingencies set forth in this section are for the sole
and exclusive benefit of the City, and the City shall have the right to waive the
contingencies by giving notice to the Barkleys.
(b) The Barkleys' Contingencies. The obligations of the Barkleys under this
Agreement are expressly contingent upon each of the following (the `Barkleys'
Contingencies"):
(i) The Barkleys shall have determined on or before the Closing Date, that
they are satisfied, in their sole discretion, with the results of any
environmental/soil investigations and tests of the City Land conducted by the
Barkleys, the costs of which shall be the responsibility of the Barkleys. By
executing this Agreement, the City hereby authorizes the Barkleys, their
contractors, and agents to enter upon the City Land for purposes of conducting
environmental, engineering and soil tests.
(ii) The Barkleys shall have determined on or before the Closing Date, that
they are satisfied, in their sole discretion, with the title to the City Land.
(iii) All of the covenants, representations, and warranties made by the City
shall be true and correct as of the Closing Date.
If Barkleys' Contingencies have not been satisfied on or before the Closing Date, then the
Barkleys may, at the Barkleys' option, terminate this Agreement by giving notice to the City
on or before the Closing Date. The contingencies set forth in this section are for the sole and
exclusive benefit of the Barkleys, and the Barkleys shall have the right to waive the
contingencies by giving notice to the City.
13. MISCELLANEOUS.
(a) No Partnership or Joint Venture. Nothing in this Agreement shall be
interpreted as creating a partnership or joint venture among the parties.
(b) No Broker Commissions. Each party represents and warrants to the other parties
that there is no broker involved in this transaction with whom the warranting party has
negotiated or to whom the warranting party has agreed to pay a broker commission. Each
party agrees to indemnify the other parties for any and all claims for brokerage
commissions or finders' fees in connection with negotiations for the purchase and sale of
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the Properties arising out of any alleged agreement or commitment or negotiation by the
indemnifying party.
(c) No Merger. The provisions of this Agreement shall not be merged into any
instruments or conveyance delivered at Closing, and the parties shall be bound accordingly.
(d) Entire Agreement; Amendments. This Agreement constitutes the entire
agreement among the parties and no other agreement prior to this Agreement or
contemporaneous herewith shall be effective except as expressly set forth or incorporated
herein. Any purported amendment shall not be effective unless it shall be set forth in
writing and executed by the parties or their respective successors or assigns.
(e) Binding Effect; Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, executors, administrators, successors and
assigns.
(f) Notice. Any notice, demand, request or other communication which may or shall be
given or served by the parties shall be deemed to have been given or served on the date the
same is deposited in the United States Mail, registered or certified, postage prepaid;
delivered by a nationally recognized overnight delivery company, or actually received by
the recipient and addressed as follows:
(i} If to City: City Administrator
City of Orono
P.O. Box 66
Crystal Bay, MN 55323-0066
(ii) If to the Barkleys: 3640 Bayside Road
Long Lake, MN 55356
(g) Headings. The headings of the sections and subsections of this Agreement are
for convenience of reference only and does not form a part hereof, and in no way
interpret or construe such sections and subsections.
(h) Survival of Covenants, Representations, Warranties and Agreements. All
covenants, representations, warranties and agreements contained herein shall survive the
closing. Nevertheless, any claim that either party has breached a representation or
warranty must be in writing and must be given by the non -breaching party within two
years of the Closing Date or be deemed waived.
(i) Governing Law. This Agreement shall be governed by the laws of the State of
Minnesota.
0) Counterpart signatures. The parties agree that this Agreement may be executed
in two or more counterparts, all of which when taken together shall comprise one and the
same instrument. Each party agrees that the other party may rely upon facsimile copies
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of the signatures of such party.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date written above.
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[Signature Page for City]
CITY OF ORONO
By:'z-Q
IQ4�&
Lili Tod McMillan, Mayor
���inistrator
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[Signature Page for the Barkleys]
Jacob J. tkle
a een L. Barkley
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EXHIBIT A
Legal Description of the City Land
Lot 2, Block 3, Bay View Park, Hennepin County, Minnesota.
1849490
Legal Description of Barkley Land
Parcel 1 ("Residence Parcel")
Lot 1, Block 1, Riedel Company Stubbs Bay Addition, Hennepin County, Minnesota.
Parcel 2 ("Dock Parcel")
Lot 1, Block 3, Bay View Park, Hennepin County, Minnesota, which lies Southerly of a line 33 feet
Southerly of, measured at right angles to and parallel with a line hereinafter referred to as "Line A", said
"Line A" being described as follows; Commencing at the Northeast corner of the Northwest Quarter of
Section 5, Township 117 North, Range 23 West of the 5t' Principal Meridian; thence South along the
East line of said Northwest Quarter a distance of 1400.28 feet; thence deflecting left 64 degrees 30
minutes a distance of 143.32 feet to the point of beginning of said "Line A"; thence deflecting right 180
degrees along said "Line A" a distance of 100 feet; thence along a tangential curve to the left having a
radius of 500 feet and central angle of 22 degrees 30 minutes a distance of 196.35 feet; thence Westerly
tangent to said curve to the West line of the Northeast Quarter of the Southeast Quarter of said
Northwest Quarter, and there ending.
Parcel 3 ("Remnant Parcel")
Lot 16, Block 1, Bay View Park, Hennepin County, Minnesota which lies Southerly of a line 33
feet Southerly of, measured at right angles to and parallel with a line hereinafter referred to as "Line
A", said "Line A" being described as follows: Commencing at the Northeast corner of the Northwest
Quarter of Section 5, Township 117 North, Range 23 West of the 5th Principal Meridian; thence
South along the East line of said Northwest Quarter a distance of 1400.28 feet; thence deflecting left
64 degrees 30 minutes a distance of 143.32 feet to the point of beginning of said "line A"; thence
deflecting right 180 degrees along said "Line A" a distance of 100 feet; thence along a tangential
curve to the left having a radius of 500 feet and central angle of 22 degrees 30 minutes a distance of
196.35 feet; thence Westerly tangent to said curve to the West line of the Northeast Quarter of the
Southeast Quarter of said Northwest Quarter, and there ending.
184949v4