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03-812Return copyto:jao Real Estate Division 140 City Hall Presented By Referred To Council File # OJ � �1� Green Sheet # _ 3�0`�� RESOLUTION SAINT PAUL, MINNESOTA 1�-I Committee: Date 2 WHEREAS, the City Council approved fivaucing for acquisition ofthe Meritex Properryin Council File 3 No. 03-614 adopted by the Council on June 25, 2003, and approved by the Mayor on July 1, 2003; 4 5 WHEREAS,CitystaffidenrifiedtheMeritexPropertylocatedatthenorthwestcornerofGroveandOlive 6 Slseets and described on Exhibit A attached hereto ("Nleritex Propeity") to meet the need of providing parking 7 facilities; 9 10 11 12 13 14 15 16 17 WHEREAS, City stafF have not been successful in negotiating a voluntary purchase of the Meritex Property so the City Council authorized acquisition of the Meritex Property by use of eminent domain proceedings in Frelimivary Order 03-254, approved March 12, 2003, amended April 2, 2003; WIIEREAS, eminent domain proceedings were filed in District Court on behalf of the City to acquire the Meritex Property and the pefition in that proceeding proposed that the City acquire a portion of the BNSF Property and convey it to the owner of the Meritex Property in mitigation for the damages caused by the takiug of the Meritex Properry; 18 WHEREAS, pursuant to Chapter 13 ofthe City Charter, the City, acting through its Valuation Engineer, 19 hasnegotiatedthepurchaseofproperiyownedbytheBurlingtonNorthemSantaFeRailwayCompany(`BNSF") 20 which is legally described on Exhibit B attached hereto (`BNSF Propert}�') for the purpose of conveyance of a 21 portion thereofto the owner ofthe Meritex Property in mitigarion of damages caused bythe takiug ofthe Meritex 22 Property; 23 24 WHEREAS, the Valuation Engineer has negotiated a proposed purchase agreement between the City 25 and BNSF which is attached hereto and incorporated herein as E�ibit C under which the City may acquire the 26 BNSF Property far $200,000; 27 28 WHEREAS, the Valuation Engineer recommends that the City Council approves purchase of the BNSF 29 Property for $200,000 upon substanrially the terms and conditions described in said Purchase Agreement; 30 31 32 33 34 35 36 37 WHEREAS, counsel for the City has requested that the City Council ratify the intentions of the City Council to acquire the Meritex Properiy by use of eininent domainproceedings, that financing has been provided for that purpose, the use of quick take proceedings to acquire that property, and the intention ofthe City to acquire the BNSF Froperiy and convey a portion of it to the owners of the Meritex Property in mitigation of damages caused by the takiug of the Meritex Property. o3-Sra NOW, THEREFORE, BE Ti' RESOLVED AS FOLLOWS: 2 3 l. The Valuation Engineer, acting by and through special counsel previously authorized bythe Cily Council 4 to be retained for such purpose, is authorized and directed to acquire the Meritex Property by use of euinient 5 domain proceediugs, and the tatang thereof for pazking purposes to meet the needs ofthe new Law Enforcement 6 Center and other public purposes is hereby confirmed to be for a public purpose and necessary and convenient 7 to serve the needs of the City of St. Paul and its citizens. 9 2. The previous filing of eu�iuent domain proceed'uigs on behalf ofthe City to acquire the Meritex Property 10 is hereby ratified and confumed. This Council finds tl�at the City needs to acquire tifle and possession of the 11 Meritex Propertyprior to issuance ofan award of damages by the Court Appointed Comxnissioners and therefore 12 the effort to acquire tiUe and possession of the Meritex Properiy in said proceeding by use of Mivn. Stat. § 13 117.042 is ratified and confinned. 14 15 16 17 18 19 20 3. Although the original resolution (Preliminary Order 03-254, approved Mazch 12, 2003, amended April 2, 2003) authorizing acquisition of the Meritex Properiy was conditioned upon idenrifying financing for the acquisition, the Council subsequently approved a financing plan for the acquisifion in Council File No. 03-614 adopted by the Council on June 25, 2003, and approved by the Mayor on July 1, 2003, so that the Council finds that any reservation relating to fuiaucing which was contained in Preliminary Order 03-254 has been satisfied. 21 4. Purchase of the BNSF Property by the City for a purchase price of $20Q000 pursuant to a purchase 22 agreement which is substantially consistent with the provisions of Exhibit C attached hereto and incorporated 23 herein is hereby approved and the proper City Officials are directed and authorized to execute such documents 24 and take such actions on behalf of the City as are necessary and appropriate to compiete the purchase consistent 25 with said purchase agreement and the activities provided therein. 26 27 28 29 30 31 32 33 34 5. Environmental remediation of that part of the BNSF Property which is legally described on E�ibit D attached hereto ("Mitigative Parcel") if and as required by Minnesota Pollution Control Agency ("MPCA") to facilitate use ofthe Mitigative Parcel for paddng purposes and conveyance of the Mitigative Parcel to the Owner of the Meritex Property in mirigation of damages due to the taking of the Meritex Property in said eminent domain proceedings is hereby authorized. 6. Said sum to be charged to Activity Code: CO3-4T020-0891-40991 03 -�/� � 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Requested by Depariment of Technoloev & Mana�ement Services By: 2�c-°�'� 8`� rC Director Form Approved by i Attomey sy: %J[/�L/M,.�---- y_zr.�3 l�y Mayor for�u w ' �� —� �; �e � �. — �!/ � � l � / � � . -- -_ _ _��, _ _ Adopted by Council: Date 9 l� a3 Adoption Certi ed by Council Secretary By: �/� ��vs�� _ �, a3-�1� Those portions of Lots 5 and 6 in Block 3 of Patterson's Addition and Lots 1 though 10, inclusive, of M. Bach's Subdivision of the North Half of Block 3 of Patterson's Addition to the City of St. Paul, Ramsey County, Minnesota, described as follows, to-wit: Beginning at the intersection of the West right-of way line of Olive Street with the South right-of-way line of East 13th Street, according to the recorded plat thereof; thence Southerly along said West right-of-way line of Olive Street to the point of intersection with the North right-of-way line of Grove Street, according to the recorded plat thereof; thence Westerly along said North right-of-way line of Grove Street a distance of 165.0 feet; tl:ence I�Tortherly pazallel with said West right-of-way line of Olive Street a distance of 260.0 feet to the point of intersection with a line drawn concentric with and distant 10.0 feet Westerly of, as measured radially to, Burlington Northern Railroad Company's (formerly Great Northem Railway Company's) most Westerly Spur Track centerline, as originally located and constructed; thence Northerly parallel with said Spur Track centerline to the point of intersection with a line drawn parallel with and distant 96.0 feet Easterly of, as measured at right angles to, the West line of said M. Bach's Subdivision; thence Northerly parallel with said West line of Mr. Bach's Subdivision a distance of 48.0 feet to the point of intersection with said South right-of-way line of E. 13th Street; thence Easterly along said South right-of- �vay line to the Point of Beginning. 1� �� I� a '__-'_ 1 �� „1 I 3 ) q �______' u M �� I '$ � ,� 3 16 _____ ,� z __ � q `3 a l Z z _ m .. ��1 =—�-`.—r z 3 __ " u 15 ' , ia v � 4 � a �J J GROVE � \\ � � '> . tl _ "' ',' _ � 2 ¢"' /� 5 Ja , � �� W � y � � � � � m, �� Q _......__. . ._ ... ----- –� �„-' � ------- --- -, o , --- s , -- -- -----'�, -__��"__ _T____d -'_;�_____9i 2 '-' ] e � - Z � a ` ` m . � . ' � � ' � _ _ � " - _. ,. J ,, k � . 3 _V � ' � a xi = j � .�--_ ____� : � I . .... '_"___"-- .___' . , S'U ` 12 " .. � . ._ �1 t5 � �� i ___ __ ____ _____ __;,__"_"?,� . .' ___ � 4 _"_ "_"_" t � _ ' ___ __ ' ..'.'" i� ..'..... .. " ....___ r 'e � % ' ,� � , _ �-" _ _" "°-� - . � __.. --� ; GAS I �m �� i � <s� � �� O �� __m_ -c _.� m PPC HQ�: .m ��'. _ m = l�A :� . 5 � � e �. � ,� , I gPSS ` O � � I .� _ � � J ,� "}-____ "___""_"_ ,� -E - --'�--:- � � ,a , ,� ; ,e .! ,s !:.- � s � :: _ I ,=: i< . ,� � �!--1-1�� = --�/---=- ,� n : � � ' ___— � __'_� __ _� . , � ,_ __,..:._� F � Y; 6 5 �\� ' ' � ___�__��__ _ el o 5 a s ,,, , , , k i � .___.. .. ..._� __.......� __.. _'___..� -_ .� � 3 � o „ I +z .�� NSF t V Q 3" O/ �f- PARCEL A: That part of J.W. BASS SUBDIVISION OF LOTS 8, 9, AND PART OF 7, 10, 12 & 13 BASS ADDITION OF OUTLOTS TO ST. PAUL MINN., Iying southwesterly of LINE "A" described below and northeasterly of S00 �INE PLAT N0. 8, Ramsey County, Minnesota. ' PARCEL B: That part of Block 6, BASS ADDITION AND ADDITION OF OUTLOTS TC THE TOWN OF ST. PAUL, lying southwesterly of LINE "A" described below and northeasterly of S00 LINE PLAT N0. 8, Ramsey County, Minnesota. Together with vacated alley in that part of said Block 6 described ebove and vacated Monroe Street lying adjacent to that part of said Biock 6 described above. PARCEL C: That port of Block I, the olley in said Block I, and Lot 15, BASS ADDITION AND ADDITION OF OUTLOTS TO THE TOWN OF ST. PAUL, Rcrosey County, Minnesota, lying within a 20 foot wide strip of land. The Wes: line of said 20 foot wide strip of land is described as being the northwes:erly projection of the centerline of Kittson Street as shown in S00 LINE PLAT N0. 8, Ramsey County, Minnesota. PARCEL D: That part of Biock 10, BRUNSON'S ADDITION, Ramsey County, lyinq southwesterly of LINE "A" described below, except that soid Block 10 described in Warranty Deed Doc. No. 2404412. PARCEI E: Minnesota, part of �ot 7, That part of Block 9I, KITTSON'S ADDITION, Ramsey County, Minnesoia, lying southwesteriy of LINE "A" described below and northwesterly of ;he northwesterlv line of Seventh Street. Together with the that par{ of vacated Srook Street lying northeaste�iy of the centerline of said Brook Street, lying southeasterly of the north ! ne of said Block 91 extended westerly, and lying northwesterly of the northwesterly line of Seventh Street. LINE "A"; A{ine 90.00 feet southwesteriy of and parallel wiih a spur tract of the Buriington Northern and Santa Fe Railway Company described as commencing at the West Quarter corner of Section 32, Township 29, Range 22, Romsey County, Minnesota; thence North 89 degrees 26 minutes 43 seconds East, assumed bearing, along the south line of the Northwest Quarter of said Section 32 a distance of 1599.01 feet; thence South 44 degrees 41 minutes 52 seconds Eost a distance of 73.56 feet; thence southeasterly a distance of 97.47 feet olong a tangential curve concave to the southwest having a radius of 190I.60 feet and a central angle o` 2 degrees 56 minutes 13 seconds to the northwesterly line of Seventh Street, being the point of beginning of the line to be desc�ibed; ther,ce nortfiwesferly a(ong the lasf described curve a disfance of 97.47 feet; thence North 44 degrees 41 minutes 52 seconds East a distance of I414.32 feet to the easterly line of S00 LINE PLAT N0. 8, according to the recorded plat thereof, Ramsey County, Minnesota, and said line there terminating. � � � M� � �I y � n � v 2003 i1�51W`7 � 3' p N0.53Z P.3/4 � $ /' � i' � � �� ;�.. i � > � _ o l � / ` �� ( �. �. r�a i Yr: y+'i�'�w_ t� � o , a g � i y.! d , i.� ro., 'd' I'� O n 3_ ° ° o / \` g �\ �'i �\ � � � 4 �0 / \'`�.�U,. � p � �4< \f� �h'.•y.:..:.��..: .. p n �:� � �` bN 4 � ( � ✓� . 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N r F � / / � I i T\�.�� / / / �/ VnAM�+�'twi �a ' � �+' �,�� :��?: �i� i % /, t� � +� �� i ��u� a � r 1� � i a! t �: � �/ �� 4 +\ � z� Q� s w �� +, � � r ; ii ,; ,/ //) ,� , '�i � , � a . � c�° � g „ �� ' � • °' f� r `o »� ci � - ; ex �+ � r � � � I � ' /' I,�/�, �/-� ° p � �� .cr �' '� tn � I i � /l fj�lJ /f � ,(�, ` , � ""�t^ � d ��7� � ' �� .�� 1♦ IA� �� a\ q— 8 Ly u Y �� N � ' I � � � ♦ ��I ri � \ \ f 'Ifi�_ V_ T L � , n � �I� � } � `' 47 u ��^ Z� Cr � UNd'.� � � r I r b/� •aw qW ^I 'S O.i� e,onaoa M+ wol o1ue.•ae�. e.w .i e ave >u�P.ap.mu� aw�uno v 4Uw Alw ,�un ryqo ..IW .a v»«o .Reah�000 •f�i�orD a� �ro9 e f » e awmo��(n:iioii �� e��i�s >w �,.y.<„ te�ii��a wi �G Poa� n+ni �v+ (!1 1 ya npre a{ �ee� e� �� pa •e ev�mq �o e wno tiauip 41 �� 03-�� FORM APPROVED BYLAW THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY REAL ESTATE PURCHASE AND SALE AGREEMENT Staubach Global Services, Inc. 4105 Lexington Avenue North, Suite 200 Arden Hills, MN 55126 August 21, 2003 BUYER'S OFFER l. The undersigned, hereinafter called "Buyer", offers to purchase from The Burlington Northern and Santa Fe Railway Company hereinafter called "Selier", all of Seller's right, title and interest in and to that pazcel of land situated in St. Paul, County of Ramsey, and State of Minnesota, as shown shaded on attached map marked Exhibit "A", dated May 20, 2003 revised June 3, 2003, attached hereto and made a part hereof (said parcel of land being hereinafter called "the Property") at the price and upon the terms and conditions as follows. PURCHASE PRICE AND PAYMENT 2. Sellermay approve or disapprove this Agreement for any reason whatsoever, in Seller's sole and absolute discrerion, whether reasonable or unreasonable o r w hether a rbitrary o r capricious, s ubject t o the approval of this Agreement by Seller, Buyer agrees to pay to Seller the purchase price of $200,000.00 for Property, of which the amount of $20,000.00 hereinafter called the "deposit", is paid to Seller, or Seller's assignee, to be applied on the purchase price. Said deposit check shall be forwarded to Staubach Global Services, Inc. at 4105 Lexington Avenue North, Suite 200, Arden Hills, MN 55126, and then forwarded to the Seller's account. Said deposit check should be made payable to JPMorgan Chase Bank/Escrow Agent APEX. Said deposit shall be refunded to Buyer if this offer is not accepted by Seller within forty-five (45) days from the date of said offer. The balance of said purchase price shall be paid in cash or by certified check to Seller or wire transfer to Seller's account as designated by Seller at the time Seller's deed to said property is delivered to Buyer. Notwithstanding anything set forth herein to the contrary, the balance of the purchase price shall be due ten (10) days from notice that Seller's deed is ready for delivery. Delivery of said deed shall be made at Seller's above stated office. EXH'��31�' ''G, 03 -�l� .rr_�e��- -- �� . . : , 3. Seller has elected to assign this Agreement to Apex Property & Track Exchange, Ina ("Apex"). Apex is a qualified intermediary within the meaning of Section 1031 of the Intemal Revenue Code of 1986, as amended, and Treas. Reg. § 11031(k)-1(g), for the purpose of completing a tas-defened exchange under said Secrion 1031. Seller shall beaz all expenses associated with the use of Apex, or necessary to qualify this transaction as a tas-deferred exchange, and, except as otherwise provided herein, shall protect, reimburse, indemnify and hold hannless Buyer from and against any and all reasonable and necessary additional costs, expenses, including attomeys fees, and liabilities which Buyer may incur as a result of Seller's use of Apex or the qualification of this transaction as a tas-deferred transaction pursuant to Secrion 1031. Buyer shall cooperate with Seller with respect to this taac-deferred exchange, and shall execute in triplicate the attached Assignment of Rights Under Contract to Real Estate, hereinafter described as Exhibit "B" CONVEYANCE 4. Seller shall convey or caused to be convey.ed, all of Seller's right, title and interest in the property, if any, to Buyer by Quitclaim Deed subject to the exceptions and reservations, whether or not of record and in accordance with the other tertns, conditions and reservations contained herein. Buyer shall, as soon as possible after acceptance of this offer, advise the Seller of Buyer's intent to haue the property surveyed. In the event the Seller's description of the property used in the Deed and the use of an E�ibit map for reference in the Deed is not acceptable to the Buyer, the Buyer shall so advise the Seller of their objections of said description and within 15 days thereof, the Buyer shall, at their expense, arrange for a survey of the property to be furnished to the Seller. ACCEPTANCE CONSTITUTES AGREEMENT 5. This offer of the Buyer to purchase the property when duly accepted and signed by the Seller shall constitute the entire agreement between the parties for the sale and purchase of the property and shall bind and inure to the benefit of the Seller, the Buyer, and their heirs, executors, administrators, successors and assigns. LIQUIDATED DAMAGES AND SPECIFIC PERFORMANCE 6. Time is o£ the essence of this contract. If the Buyer shall fail to perform this contract within the time limits herein specified, Seller may retain the deposit as liquidated damages, not as a penalty or farfeihxre, and declaze this contract terminated, or Seller may proceed to have this contract specifically enforced, SUCCESSORS IN INTEREST 7. Wherever referrec3 to herein, the term Buyer shall imply, mean and apply to the Buyer, its successors, assigns, heirs, executors, administrators, or designees, who shall be severally and collectively liable for any and all performance hereunder. Wherever referred to herein the term Seller shall imply, mean and apply to the Seller, its successors, assigns, heirs, executors, administrators, or designees, who shall be severally and collectively liable for any and all performance hereunder. 2 03 - 812- THIS OFFER IS AND THE CONVEYANCE OF TFIE PROPERTY SfIAI.L BE SUBJECT TO TFIE FOLLOWING TERMS, CONDITIONS AND RESERVATIONS. 8. Easements--A reservation of the necessary right of way, to be detemiiued by Seller, for the continued maintenance, operation and use of all existing driveways, roads, utilities, tracks, wires and easements of any kind whatsoever on the Property whether owned, operated, used or maintained by the Seller, Seller's Licensees or other third parties and whether or not of records, and for the installation, construction and situation of facilities necessary to or beneficial for, the operation of Seller's raikoad, with reasonable right of entry for the repair, reconstruction and replacement thereof, without limitarion as a result of any fiuther enumeration herein. In addition, reservation of a non-exclusive easement for the construction, maintenance and operation of one or more pipelines or fiber optic lines and any and all communicarions facility as presently located or may be located in the future on Property. OTHER TERMS AND CONDITIONS 9. Title Defects--If, within the ten (10) day period following Selier's notice to Buyer that Seller's deed is ready for delivery, Buyer notifies Seller that Buyer has requested evidence of title to the Property, Buyer shall fi�rnish to Seller at Bnyer's expense such evidence of ritle within thirty (30) days of said notice from Buyer in the form of an abstract of titie or a title commitment, and a written statement specifying the matters or defects other than said permitted exceptions and reservations and other than such usual exceptions contained in Owner's policies and the matters to which this sale is subject by the terms hereof, the time of payment o f the b alance o f t he p urchase p rice s hall be extended for a period of sixty (60} days after the receipt of said evidence of title and statement. If Seller is unable or unwilling to cure such matter or defects within said sixty (60) day period, and Buyer is unwilling to accept the deed subject to such matter or defects then either party may terminate this Agreement by serving written notice of termination upon the other party within fifteen (15) days thereafier and all further rights and liabilities under this Agreement shall cease and terminate except that Seller shall return the deposit to Buyer and Seller shall reimburse Buyer for the actual amount paid by Buyer, if any, to an abstractor for an abstract of title or to a title company for a title report (but not for title insurance), provided that said abstract or title report shall be delivered and assigned to Seller. Otherwise, Buyer shall remit to Seller, or Seller's assignee, the purchase price within ten (10) days or at ciosing, whichever is earlier. 10. Real Estate Commissions--If any real estate broker or agent can establish a valid claim for commission or other compensation as a result of Buyer having used their services in connection with the purchase of the Property, all such commission or other compensation shall be paid by Buyer. Seller shall not be liable for any real estate commissions or finders fees to any party with respect to the sale of the Property, except to Staubach Global Services, Inc., ("Broker") pursuant to a separate agreement. On and prior to the Date of this Agreement, Broker has advised, and hereby advises, Buyer, by this writing and by other means, and Buyer hereby acknowledges that Buyer has been so advised, that the Broker is acting as the agent of the Seller, with the duty to represent Seller's interest, and Broker is not the agent of the Buyer. If a policy of ritle insurance is to be obtained, Buyer should obtain a commitment for titie insurance which should be examined prior t o c losing b y an attorney o f Buyer's c hoice. Prior to the execution of this Agreement, Broker has advised and hereby advises the principals of this transaction, that this Agreement is binding on them, and the principals hereby aclrnowledge that they have been so advised. 3 03- �1� 11. Liens of Seller's Mortgages--Seller shall deliver to Buyer, who shall place of record, good and sufficient releases of the liens of Seller's mortgages, where required under the terms of any mortgage on the Properiy, within one hundred eighty (180) days after the first meeting of Seller's Boazd of Directors held after the conveyance contemplated herein. In the event Seller shall be unable to obtain said releases for any reason, Seller shall have the right to teiuiinate this Agreement upon serving written notice of ternunation upon Buyer withiu fifteen (15) days thereafter, and both parties shall thereupon be released and discharged from all liabiliries and obligations hereunder, except that Seller shall repay to Buyer any and all sums therefore paid by Buyer to Seller upon a reconveyance of title to the Properiy to Seller free and clear of defects or objections to the same extent as if no conveyance had been made to Buyer hereunder. 12. Other Liens--Any judgment against Seller which may appear of record as a lien against the Property shall be settled and satisfied by Se}ler if and when it is judicially determined to be valid, and Seller hereby indexnnifies the Buyer for all loss arising out of Seller's failure to have a judgment lien so settied and satisfied. All outstanding assessments levied or due in the year the deed is delivered shall be paid by Buyer. 13. General Real Estate Tases--Real estate taaces or assessments payable or paid in the year the deed is delivered shall be prorated by Selier and Buyer as of the date on which the deed is delivered on the basis of the most recent ascertainable taaces assessed against the subject Property, or as may be equitably apportioned thereto by the Seller if the Property is not separately assessed ar unless the payment of same has been assumed by a tenant under an existing lease to be assigned to Buyer. 14. Transfer Tases--Buyer agrees to purchase, affix and cancei any and ali documentary stamps in the amount prescribed by statute, and to pay any and all required transfer tases, excise taxes and any and all fees incidental to recordation of the conveyance inshlunent. In the event of Buyer's failure to do so, if the Seller shall be obligated so to do, the buyer shall be liable for all costs, expenses and judgments to or against the Seller, including all of Seller's legal fees and expenses and same shall constitute a lien against the Property to be conveyed until paid by the Buyer. 15. Notices and Demands--All notices, demands, payments and other instruments required ar permitted to be given or served by either party shall be in writing and deemed to have been given or served by either party if sent by registered or certified mail, addressed to the other party at the address shown herein. 16. Governmental Approval--If the approval of any governmental agency is required for the sale of the Property, it is understood and agreed that this Agreement is subject thereto and that both parties shall use their best efforts to obtain such approval. The closing date shall be extended for such period as may be required to obtain such approvai. In the event said approval cannot be obtained, either party may terminate this Agreement without liability to the other, except that Seller shall return the deposit to Buyer. In the event a city, county, or other governing authority wherein said Property is located requires a survey or plat or has a subdivision ordinance, the Buyer shall obtain such survey or plat, all at Buyer's sole cost and expense. The survey or plat shall be submitted by Buyer to Seller for review and approval prior to recording and within a period of forty-five (45) days after the date of Seller's acceptance of this offer. 17. Deposit Authorization -- Buyer hereby authorizes Seller to cash any checks that may be delivered to Seller as a deposit ar option payment, and to take the amount of any snch deposit or option payment into its accounts, with the understanding that it will not constitute acceptance of this offer; provided, however, that such authorizarion is given with the understanding that in the event the offer is not accepted the Seller agrees to refund the amount of any deposit in full. n 03 �t� 18. Rail Service -- Nothing in this Agreement shall prevent Seller from discontinuing service over any railroad line or lines by which rail service may be provided to the Property. 19. Leases and License Prepayment Lunitation -- Seller shall not refund any prepaid or unearned lease rentals unless such prepaid or unearned rentals for each lease exceeds the sum of $500.00. 20. Lease Rentals Continuance Buyer's Lease -- Buyer agrees to keep rentals, tazes and other charges payable to Seller under the terms of N/A fully prepaid with any refund or adjustment of same to be made as of the date of Closing. If a lease includes a site only partially located within the Property being purchased, the refund, if applicable, shall be apportioned for that part of said lease site within the Property. Cancellarion of said lease shall be upon the date of conveyance of Property. 21. Leases Other than Buyer -- Lease(s) N/A (Lease No.), being in the name of other than Buyer, shall be assigned to Buyer upon date of conveyance of the Property and will be subject to apportionment of prepaid rental, payable to Buyer, as of date of conveyance. 22. Complete A greement -- T his A greement c ontains t he entire A greement b etween S eiler and Buyer with respect to the Property and, except as set forth in this Agreement, neither Seller, nor Seller's agents or employees, have made any agreements, covenants, warranties or representations of any kind or character, express or implied, oral or written, with respect to the Property. 24. This Agreement relates only to land. Unless otherwise herein provided, any conveyance shall exclude Seller's railroad tracks and appurtenances thereto, Seller's buildings and any other impmvements on the Property, all of which may be removed by Seller within 90 days following conveyance of the Property, and if not removed, shall be deemed abandoned by the Selier without obligation on the Seller's part and shall thereafter be and become the Property of the Buyer in place. 25. A reservation to Seller of all coal, oil, gas, casing-head gas and all ores and minerals of every kind and nature including sand and grauel underlying the surface o fthe Property, together with the fuli right, privilege and license at any and all tnnes to explore, or drill for and to protect, conserve, mine, take, remove and market any and all such products in any manner which will not damage structures on the surface of the Property, together with the right of access at all times to exercise said rights. 26. Seller is not a foreign person as the term is used and defined in Section 1445 of the Internal Revenue Code of 1954, as amended and the regulations promulgated thereunder. Seller shall, upon request of Buyer, complete an affidavit to this effect and deliver it to Buyer on or before closing of said sale. 27. It is specifically agreed and understood by the parties hereto that the Buyer shall, before July 15, 2003, accept and sign this Real Estate Purchase and Sale Agreement and return same together with the $20,000.00 deposit named herein to JPMorgan Chase Bank/Escrow Agent APEX. Failure of the Buyer to perform within the time restrictions will render this Agreement null and void in its entirety. 28. Buyer has been allowed to make an inspection of the property and has knowledge as to the past use of the property. Based upon this inspection and knowiedge, Buyer is/are aware of the condition of the property and BUYER IS AWARE THAT BUYER IS PURCHASING THE PROPERTY ON AN "AS-IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIIiONMENTAL CONDITION OF THE PROPERTY, AND THAT BUYER IS/ARE NOT RELYING ON ANY REPRESENTATTON OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY HIND WHATSOEVER FROM SELLER AS TO ANY MATTERS CONCERNING THE PROPERTY, including the physical condition oFthe property and any 03- �12- defects thereof, the presence of any hazardous substances, wastes or contaminants in, on or under the property, the condition or existence of any of the above ground or underground structures or improvements in, of or under the property, the condition of title to the property, and the leases, easements or other agreements affecting the property. Buyer aware of the risk that hazardous substances and contaminants may be present on the property, and indemnifies, holds harniless and hereby waives, releases and dischazges forever Seller from any and all present or future claims or demands, and any and all damages, loss, injury, liability, clauns or costs, including fines, penalties and judgments, and attorney's fees, arising from or in any way related to the condition of the property or alleged presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or other handling of any hazazdous substances or contaminants in, on or under the property. Losses shall include without limitation (a) the cost of any investigation, removal, remedial or other response action that is required by any Environmental Law, that is required by judicial order or by order of or agreement with any govemmental authority, or that is necessary or otherwise is reasonable under the circumstances, (b) capital expenditures necessary to cause the Seller remaining property or the operarions or business of the Seller on its remaining property to be in compliance with the requirements of any Environmental Law, (c) Losses for injury or death of any person, and (d) Losses arising under any Environmental Law enacted after transfer. The rights of Seller under this section shall be in addition to and not in lieu of any other rights or remedies to which it may be entitled under this document or otherwise. This indeimiity specifically includes the obligation of Buyer to remove, close, remediate, reimbwse or take other actions requested or required by any governmental agency concerning any hazardous substances or contaminants on the property. The term "Environmental Law" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, i ncluding w ithout 1 imitation, t he R esource C onservation and R ecovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. The t erm °Hazardous S ubstance" m eans any h azardous, t oxic, r adioactive o r infectious substance, material or waste as defined, listed or regulated under any Environmentai Law, and includes without limitation, petroleum oil and any of its fractions. 29. The parties agree the terms, conditions, and addendum provisions of tlus agreement shall survive closing. 30. Notwithstanding, anything herein, this sale shall close no later than August 31, 2003. Seller shall have the right to elrtend the closing, at Seller's sole judgment. 31. Buyer acknowledges that, according to Seller's records, Seller's ownership interest in a portion of the Property may be subject to reversion upon abandonment of use for railroad purposes, and that the quitclaim deed releases and conveys only Seller's ownership interest in the Property. Buyer also acknowledges that a material consideration for this conveyance, without which it would not be made, is the agreement by the Buyer, for itself and for its successors and assigns, that Seller, its predecessors, successors and assigns shall be in no manner responsible to Buyer, any subsequent owner, purchaser, or any person interest therein for any claims, demands, damages, causes of action, including loss of access, or suits regarding the quiet and peaceable possession of the Property, title thereto, or condition thereof. 3 03 - �1� BUYER MUST CLEARLY SET FORTH F'ULL AND CORRECT NAMES OR PARTY OR PARTIES TO WFIOM TITLE WILL BE CONVEYED, THEIR ADDRESS, TI3EIR I2ELATIONSHIP, IF ANY, AND WHETHER CONVEYANCE IS TO BE IN JOINT TENANCY OR OTHERWISE, AND IF A COMPANY, WHETHER IT IS A PARTNERSHIP, TRUST, TRUSTEE OR CORPORATION, ADDRESS OF PRINCIPAL OF'FICE AND STATE OF INCORPORATION This offer consisting of 9 pages and by said Exhibit "A" and Exhibit "B" attached hereto, are made a part hereof, have been made, signed and sealed in duplicate by the Buyer this day of , 2003 Buyer's name as it is to appeaz on deed: CITY OF ST. PAUL City Attorney (Form Approval) ADDRESS OF BUYER: By: By: By: Deputy Mayor City Clerk Director — Office of Financial Services CITY, STATE AND ZIP CODE: Real Estate Division 140 Ciry Hall 15 W. Kellogg Blvd. St Paul, MN 55102 The foregoing offer is Accepted by Seller this day of 2003 TELEPHONE NO.: Gi.ibLS.�I�.�c3 THE BURLINGTON NORTHERN AND SANTA F'E RAILWAY COMPANY BY: EXHIBIT "B" 7 03 � gla ASSIGNMENT OF RIGHTS UNDER CONTRACT TO REAL ESTATE APEX PROPERTY & TRACK EXCHANGE, INC., a Massachusetts corporation, of 2036 Washington Street, Hanover, Massachusetts 02339, (hereinafter called "Assignee"), THE BURLINGTON NORTI3ERN AND SANTA F'E RAILWAY COMPANY, a Delaware corporation, (hereinafter called "Exchangor"), and , a corporation (hereinafter called "Buyer"). Whereas, Exchangor and Buyer heretofore entered into an Agreement dated , 200_ (the "ContracY'), wherein Exchangor agrees to assign the rights to the Contract, but not the obligations and warranties over to Assignee, as it pertains to the following described Relinquished Property: "See EXfIIBIT "A" attached hereto and made a part hereof '. Now, Therefore, Exchangor hereby assigns to Assignee all of the Exchangor's rights under the Contract, as contemplated by Treasury Regulations Section 1.1031 (k)-1(g)(4)(v), including all deposits received prior to issuing a Deed transferring fegal title. Exchangor's obiigations and warranties under the Contract remain with the Exchangor, including the authority to issue a Deed transferring legal title to the Relinquished Property over to the Buyer. Assignee previously represented, warranted and covenanted to Exchangor, under the Master Exchange Agreement dated January 1, 1997, that it will not transfer, assign, mortgage or hypothecate the rights that it is receiving from the Exchangor and that Assignee shall not amend, terminate, modify, supplement or otherwise alter any term, condition or other provision of the Contract. At the same time the Deed goes into effect transferring legai title to the Buyer, rights received under this Assigunent of Rights are transferred to the Buyer. Assignee is participating in this transaction only as a Qualified Intermediary and that for purposes of any dispute regarding the Relinquished Property, Exchangor and Buyer shall look solely to each other with respect to resolving any such dispute and neither one shall look to the Assignee. This shall be binding upon and shall inure to the respective heirs, successors and assigns of Exchangor and Buyer. This instrument may be executed in any number of counterparts, each of which, when duly executed, shall constitute an original hereof. 03 - �la- In Witness Whereof, the parties hereto have executed this Assignment of Rights Under Contract, to be effective as of the date on which the last party hereto signs. Exchangor: THE BURI.INGTOIV NORTHERN AND SANTA FE RAILWAY COMPANY, a Detaware corporation D. P. Schneider General Director Real Estate Assignee: APEX PROPERTY & TRACK EXCHANGE, INC., a Massachusetts corporation � Buyer: CIT'I' OF ST. PAUL City Attorney (Form Approval) By: Deputy Mayor By: City Clerk By: Directar — Office of Financial Services Date: Date: Date: Date: 7 � D 3 -�!a � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet DeparhnenVoffice%ouncil: Date Initiated: TE ��010��m�« 14AUG-03 Green Sheet NO: 3004255 Contact Person & Phone: Department Sent To Person InitiaUDate JUan Ortiz / Peter White � 0 echno and Mana e nt 266-8850 p��gn 1 i Attu e Cti Atrorne ��'� �•°J Must Be on Council Agenda by (Date): Number Z e nolo an Mana ement De t Director �,�-Q�Z � Por Routing 3 a or's Office M or/Assistan[ order 4 oun il Ci oundl 5 Cler Ci Clerk Tctal w cf Si^ Pages _{C:ip ."..". � ocz!i�.^.s !�r SiS•^•2'•u'e) Action Requested: Approve purchase of property as replacement land - City's purchase of property at the NW corner of Grove & Olive. Recommendations: Approve (A) or Reject (R): Personai Service Contracts Must Mswer the Following Questions: Planning Commission 1. Has this person�rm ever worked under a contract for this department? CIB Committee Yes No � � Civil Service Commission 2. Has this person/firm ever been a city employee? Yes No 3. Does this person/firm possess a skill not normally possessed by any current city employee? Yes No Explain ail yes answers on separate sheet and attach to green sheet Initiating Problem, Issues, Opportunity(Who, What, When, Where, Why): � Replacement property needs to be in the City possession when it is offered to the property owner from whom we are [aking property from. AdvantageslfApproved: Property owner affected will be made whole with the replacement property. Disadvantages If Approved: r,�'�::.`� `�� ^ `= City will have to purchase the replacement property. y � i �� : � �� s.: ,__ :, . _ _ Disadvantages If Not Approved: _ � = - `� , ` " `' _ � , `_ Other proposals will have to be sought at a signifigant cost to the City. �°Qt� � rt..,�. .� ^.-.. Total Amount of ' Transaction: 200000 CostlRevenue Budgeted: Funqino Source: prOject Fupds ActivityNumber. ��'" �� Financial information: (Explain)