HRA Report 2013-12 Purchase Agreement - 501 Mainstreet * 15 Sixth Ave NCity of Hopkias
October 31, 2013
HRA Report 2013-12
PURCHASE AGREEMENT — 501 MAINSTREET & 15 SIXTH AVENUE NORTH
Proposed Action
Staff recommends adoption of the following motion: Move to approve the Purchase
Agreement between the Hopkins Housing and Redevelopment Authority and Doran/
Pratt LLC.
With this motion the Purchase Agreement for 501 Mainstreet and 15 Sixth Avenue
North will be executed. It is understood that staff has the authority to make
modifications that do not change the intent of the agreement.
Overview
The City of Hopkins/Hopkins HRA has identified the property on Block 64 as desirable
for redevelopment. City staff has worked with two developers to this end, and in the
process have purchased the property at 525 Mainstreet. The properties at 501
Mainstreet and 15 Sixth Avenue North were purchased by Doran Pratt LLC for
redevelopment purposes. That proposed development did not move forward and
subsequently the developer, Doran/Pratt LLC, has listed the property for sale.
In an effort to keep redevelopment of the block viable, City staff is recommending that
the Hopkins HRA purchase the property to retain site control. The negotiated purchase
price is reasonable and will serve the long-term interests of the community.
Under the terms of the agreement, the HRA will pay Doran Pratt $320,000 for both
properties, subject to standard contingencies, and will close on the sale by the end of
December 2013. Additional costs will be incurred for a Phase I environmental review of
the properties. Plans are to demolish the structures and continue to pursue a
redevelopment project with another developer.
Supporting Documents
- • P
ran/Pratt LLC
ersten EfN erum �~'~
Directgr/of Planning & Development
Financial Impact: $330,000 Budgeted: Y/N Source: ED Fund
Related Documents (CIP, ERP, etc.):
Notes:
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made and entered into effective as
of the latest date set forth opposite the parties' signatures at the end of this Agreement ("Effective
Date"), between Hopkins/Doran, LLC, a Minnesota limited liability company ("Seller") and the
Housing and Redevelopment Authority in and for the City of Hopkins, a public body corporate and
politic under the laws of Minnesota ("Buyer").
In consideration of the terms covenants and conditions of this Agreement, Seller and Buyer
agree as follows:
1. Sale of Property. Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller
real property located in Hennepin County, Minnesota, described as follows:
All of the real property located at 15 — Oh Avenue North and at 501 Mainstreet,
Hopkins, Hennepin County, Minnesota, legally described in Exhibit A attached
hereto together with all easement and rights benefiting or appurtenant thereto,
including Seller's rights and any vacated or existing public rights-of-way abutting
such real property (such real property, easements and appurtenances being herein
collectively referred to as the "Property").
2. Purchase Price and Manner of Payment. The total purchase price ("Purchase
Price") to be paid by Buyer to Seller for the Property shall be $320,000.00, payable as follows:
(a) $5,000.00, as earnest money ("Earnest Money"), which Earnest Money shall be held
by Commercial Partners Title LLC (the "Title Company") in an escrow account in
accordance with the terms of this Agreement. Upon Seller's full performance of this
Agreement, the Earnest Money shall be delivered to Seller and applied toward the
payment of the Purchase Price.
(b) The balance of $315,000.00, shall be paid, in cash or by wire transfer, on the Closing
Date specified in Section 4, below.
3. Contingencies. The obligations of Buyer under this Agreement are subject to and
contingent upon each of the following contingencies:
(a) Representations and Warranties. The representations and warranties of Seller
contained in this Agreement must be true on the date of this Agreement and on the
Closing Date as if made on the Closing Date. On the Closing Date, Seller shall
deliver to Buyer a certificate (the "Update Certificate") certifying that such
representations and warranties are true as of the Closing Date.
Hopeiv\PurchaseAgreement.HopkinsDoranLLC.10.31.13
(b) Title. Title shall have been found acceptable as of the Closing Date, or been made
acceptable, in accordance with the requirements and terms of Section 6 of this
Agreement.
(c) Performance of Seller's Obligations. Seller shall have performed all of the
obligations required to be performed by Seller under this Agreement, as and when
required by this Agreement.
(d) Buyer's Inspection. Seller shall allow Buyer, and Buyer's engineers, surveyors,
consultants and employees, access to the Property without charge at all reasonable
times for the purpose of Buyer's investigation and testing. Such investigation and
testing may include a Phase I Environmental Assessment and, if recommended by the
Phase I, a Phase II Environmental Assessment of the Property (collectively the
"Environmental Assessment"), asbestos survey and any additional tests and
inspections deemed necessary by Buyer, in Buyer's sole discretion. Buyer shall pay
all costs and expenses of such investigation and testing, except as herein otherwise
expressly stated, and shall hold Seller and the Property harmless from all costs and
liabilities associated with Buyer's investigation and testing. On or before December
27, 2013, Buyer shall have determined that all matters disclosed by Buyer's
inspection and testing including, but not limited to, matters disclosed by the
Environmental Assessment and any asbestos surveys, are acceptable to Buyer, in
Buyer's sole discretion. Prior to entry upon the Property for the purpose of
commencing any such investigation or testing, Buyer or Buyer's consultants shall
procure and maintain general public liability insurance providing commercially
reasonable limits of coverage and naming Seller as an additional insured as to such
activities conducted on the Property. Any such Inspections shall be subject to the
rights of parties in possession, if any. Buyer agrees to restore any material damage
done to the Property by Buyer or anyone acting on Buyer's behalf in conducting
inspections or tests. Buyer agrees to indemnify and hold Seller harmless from and
against all loss, cost liability and expense suffered by Seller as a result of personal
injury or damage to property caused by the tests, inspections or the exercise of entry
rights by Buyer, its agents, employees or independent contractors.
If any of the above contingencies have not been satisfied on or before the applicable dates stated
above, then this Agreement may be terminated, at Buyer's option, by written notice from Buyer to
Seller. Such notice of tenmination may be given at any time on or before the first business day
occurring after the applicable dates stated above for satisfaction of each of such contingencies. Upon
such termination, the Earnest Money shall be refunded to Buyer, this Agreement shall be null and
void and neither party will have any further rights or obligations regarding this Agreement or the
Property. If Buyer fails to give such notice of tenmination on or before the applicable date(s) stated
above, Buyer shall be conclusively deemed to have waived the contingency in question, and this
Agreement shall remain in effect. All the contingencies set forth in this Agreement are specifically
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stated and agreed to be for the sole and exclusive benefit of the Buyer and the Buyer shall have the
right to unilaterally waive any contingency by written notice to Seller.
Within ten (10) days after the Effective Date, Seller shall deliver to Buyer, without cost to Buyer,
copies of all documents in the possession of Seller or Seller's agents relating to investigations of the
condition of the Property or title thereto including, but not limited to, all surveys, reports, of soil
testing and geotechnical engineer's reports, environmental assessments and reports, all records
related to the presence of any hazardous substances or petroleum products on the Property and all
other records relating to the Property that are in Seller's possession or are available to Seller.
4. Closing. The closing of the purchase and sale contemplated by this Agreement (the
"Closing") shall occur on December 30, 2013 (the AClosing Date"). The Closing shall take place at
the offices of the Title Company or at such other location as shall be mutually agreed to. Seller
agrees to deliver possession of the Property to Buyer on the Closing Date.
A. Seller's Closing Documents. On the Closing Date, Seller shall execute and/or
deliver to Buyer the following (collectively, "Seller's Closing Documents"):
(1) Limited Warranty Deed. A Limited Warranty Deed conveying the Property to
Buyer, free and clear of all encumbrances, except the Permitted Encumbrances
hereinafter defined.
(2) Seller's Affidavit. An Affidavit of Seller in the Minnesota Uniform Conveyancing
Blanks form and containing such additional information as shall reasonably be
required by the Title Company to. issue the Owners' Policy of Title Insurance required
by Section 6 of this Agreement.
(3) FIRPTA Affidavit. A non -foreign affidavit, properly executed and in recordable
form, containing such information as is required by IRC Section 1445(b)(2) and its
regulations.
(4) Mutual Release. The Mutual Release attached to this Agreement as Exhibit B.
(5) Other Documents. The Update Certificate and such other documents as shall
reasonably be required to carry out the intent of this Agreement.
B. Buyer's Closing Documents. On the Closing Date, Buyer will execute and/or
deliver to Seller the following (collectively, "Buyer's Closing Documents"):
(1) Purchase Price. Buyer shall pay the Purchase Price to Seller in the manner required
by Section 2 of this Agreement.
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(2) Affidavit of Purchaser. A Minnesota Uniform Conveyancing Blanks Affidavit of
Purchaser in such form as shall reasonably be required by the Title Company to issue
the Owners' Policy of Title Insurance as required by Section 6 of this Agreement.
(3) Mutual Release. The Mutual Release attached to this Agreement as Exhibit B.
(4) Other Documents. Such other documents as shall reasonably be required to carry
out the intent of this Agreement.
5. Prorations. Seller and Buyer agree to the following prorations and allocation of costs
regarding this Agreement:
(a) Real Estate Taxes and Special Assessments. Seller will pay, on or before the
Closing Date, allinstallments of special assessments due and payable in the year
2013. General real estate taxes and installments of special assessments payable
therewith payable in all years before the year in which Closing occurs will be paid by
Seller. General real estate taxes due and payable in the year of closing shall be pro
rated between Seller and Buyer as of the Closing Date. Buyer shall assume the
balance of special assessments, if any, remaining after payment by Seller of the
installments of special assessments due and payable in the year 2013. General real
estate taxes and installments of special assessments due and payable in years
subsequent to the year of closing shall be paid by Buyer.
(b) Recording Costs. Seller will pay the State Deed Tax and the cost of recording all
documents necessary to transfer record title in the condition warranted by Seller in
this Agreement. Buyer will pay the cost of recording all other documents.
(c) Attorneys' Fees. Each of the parties will pay its own attorneys' fees, except that a
party defaulting under this Agreement will pay the reasonable attorney's fees and
court costs incurred by the non -defaulting party to enforce its rights regarding such
default as provided in Section 22, below.
(d) Title Insurance and Closing Fees. Seller will pay all costs of providing the Title
Commitment (defined in Section 6 of this Agreement). Buyer shall pay the premium
for issuance of the Title Policy. Seller and Buyer shall each pay one-half (1/2) of any
closing fee or escrow fees charged by the Title Company.
(e) Other Costs. All other operating costs of the Property, will be allocated between
Seller and Buyer as of the Closing Date, so that Seller pays that part of such other
operating costs payable for dates before the Closing Date, and Buyer pays that part of
such operating costs payable for dates from and after the Closing Date.
6. Title Examination. Title examination will be conducted as follows:
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(a) Seller's Title Evidence. Seller shall, within ten (10) business days after the Effective
Date, furnish to Buyer a Commitment ("Title Commitment") for an ALTA Form B
Owners' Policy of Title Insurance in the amount of the Purchase Price issued by the
Title Company. If the Property is abstract property, Seller shall also deliver to the
Title Company any Abstracts of Title to the Property which are in Seller's possession.
(b) ALTA Survey. Buyer may, within thirty (30) days after the date on which the Title
Commitment has been delivered to Buyer, obtain an ALTA/ACSM survey of the
Property ("Survey") from a registered land surveyor acceptable to Buyer. The
surveyor's ALTA/ACSM certification of the Survey shall be in a form acceptable to
Buyer. Buyer shall pay the surveyor's fees for preparing the Survey. The Survey and
the Title Commitment are hereinafter collectively referred to as the "Title Evidence".
(c) Buyer's Objections. Within ten (10) business days after receiving the Title
Evidence, Buyer will make written objections ("Objections") to any matter disclosed
in the Title Evidence that makes title unmarketable. Buyer's failure to make
Objections within such time period will constitute waiver of Objections. Any matter
shown on the Title Evidence and not objected to by Buyer shall be a "Permitted
Encumbrance" hereunder. Seller will have sixty (60) days after receipt of the
Objections to cure the Objections, during which period the closing will be postponed
as necessary. Seller shall use commercially -reasonable efforts to correct any
Objections, provided Seller shall be required to remove any Objections based upon
monetary liens that can be satisfied by the payment of money. If the Objections are
not cured within such sixty-day period, Buyer will have the option to do any of the
following:
i) Terminate this Agreement and receive a refund of the Earnest Money. Upon
such termination and refund of the Earnest Money, neither party shall have
any obligation to the other under this Agreement.
ii) Proceed to Closing, and withhold from the Purchase Price the sum of
$10,000.00, to be deposited in escrow with the Title Company, to reimburse
Buyer for the cost of removing the Objections. Buyer shall assume
responsibility for the removal of Objections post -Closing, and Buyer shall be
entitled to be reimbursed for the commercially reasonable costs of doing so ,
from the escrow established with the Title Company.
iii) Waive the Objections and proceed to close.
(d) Title Policy. The Title Company will furnish to Buyer at closing a Pro forma
Owners' Policy of Title Insurance ("Title Policy") issued by the Title Company
pursuant to the Title Commitment, or a suitably marked up Title Commitment
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undertaking to issue such a Title Policy in the form required by the Title
Commitment as approved by Buyer.
7. Representations and Warranties by Seller. Seller represents and warrants to Buyer
as follows:
(a) Title to Property. Seller holds fee title to the Property, free and clear of all
encumbrances, subject to the provisions of Section 6 of this Agreement.
(b) Leases. There shall, on the Closing Date, be no leases or possessory rights of others
affecting the Property.
(c) Environmental Laws. To the actual knowledge of Seller without inquiry or
investigation, and except as disclosed in any environmental assessment delivered by
Seller to Buyer, no toxic or hazardous substances or wastes, pollutants or
contaminants (including, without limitation, asbestos, urea formaldehyde, the group
of organic compounds known as polychlorinated biphenyls, petroleum products
including gasoline, fuel oil, crude oil and various constituents of such products, and
anyhazardous substance as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Section 9601-
9657, as amended) have been generated, treated, stored, released or disposed of, or
otherwise placed, deposited in or located on the Property, nor has any activity been
undertaken on the Property that would cause or contribute to (i) the Property to
become a treatment, storage or disposal facility within the meaning of, or otherwise
bring the Property within the ambit of, the Resource Conservation and Recovery Act
of 1976 ("RCRA"), 42 U.S.C. Section 6901 et seq., or any similar state law or local
ordinance, (ii) a release or threatened release of toxic or hazardous wastes or
substances, pollutants or contaminants, from the Property within the meaning of, or
otherwise bring the Property within the ambit of, CERCLA, or any similar 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 the Federal Water Pollution Control
Act, 33 U.S.C. Section 1251 et sec ., or the Clean Air Act, U.S.C. Section 7401 et
sec.., or any similar state law or local ordinance. To the actual knowledge of Seller
without inquiry or investigation, and except as disclosed in any environmental
assessment delivered by Seller to Buyer, there are no substances or conditions in or
on the Property that may support a claim or cause of action under RCRA, CERCLA
or any other federal, state or local environmental statutes, regulations, ordinances or
other environmental regulatory requirements, including without limitation, the
Minnesota Environmental Response and Liability Act, Minn. Stat. 115B ("MERLA")
and the Minnesota Petroleum Tank Release Cleanup Act, Minn. Stat. 115C. To the
actual knowledge of Seller without inquiry or investigation, and except as disclosed
in any environmental assessment delivered by Seller to Buyer, no above ground or
underground storage tanks, are located in or about the Property, or have been located
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under, in or about the Property and have subsequently been removed or filled. Seller
makes no representations or warranties as to the usability or habitability of the
structures currently located on the Property. Seller discloses and Buyer
acknowledges, without waiving the contingencies stated in Section 3 of this
Agreement, that there may be undiscovered environmental contamination or
additional remediation of known environmental contamination required at the
Property.
(d) Environmental Claims. To the best of Seller's knowledge, there are no
Environmental Claim pending or, to the knowledge of the Seller, threatened against
the Seller or the Property or against any person whose liability for such
Environmental Claim the Seller has retained or assumed by contract, license use
agreement, lease, warranty or guarantee, or any applicable law, except Seller
discloses that Seller was required by the MPCA to remove five underground storage
tanks and all fuel dispensers. The removal of the tanks has been completed but the
MPCA file has not been closed. "Environmental Claim" means any written notice by
a government authority alleging potential liability (including potential liability for
investigatory cost, cleanup cost, governmental response cost, natural resources
damage, property damage, personal injury or penalty) arising out of or resulting from,
directly or indirectly, (i) the presence, or release into the environment, of any material
or form of energy at any location, whether or not owned by the Seller, or (ii)
circumstances forming the basis of any violation, or alleged violation, of any
environmental law identified in Paragraph (c), above.
(e) Septic Systems. To the best of Seller's knowledge, no on-site septic systems or
private sewage systems exist on or under the Property.
(f) Water Wells. To the best of Seller's knowledge, no water wells exist on or under the
Property or have existed on or under the Property.
(g) Rights of Others to Purchase Property. Seller has not entered into any other
contracts for the sale of the Property, nor to the best knowledge of Seller are there
any rights of first refusal or options to purchase the Property or any other rights of
others that might prevent the consummation of this Agreement.
(h) FIRPTA. Seller is not a "foreign person". "foreign partnership", "foreign trust" or
"foreign estate" as those terms are defined in Section 1445 of the Internal Revenue
Code.
(i) Proceedings. There is no action, litigation, investigation, condemnation or
proceeding of any kind pending or to the best knowledge of Seller, threatened against
Seller which would materially affect the Property or Seller's ability to perform its
obligations under this Agreement.
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(j) Authority. Seller represents that Seller has the authority to enter into this
Agreement, and that the party executing this Agreement on Seller's behalf has the
requisite authority to do so and bind Seller to its obligations under this Agreement.
This Agreement is a valid and binding obligation of Seller enforceable in accordance
with its terms.
For a period of one (1) year from the Date of Closing, Seller will indemnify Buyer, its successors and
assigns, against, and will hold Buyer, its successors and assigns, harmless from, any expenses or
damages, including reasonable attorneys, fees, that Buyer incurs because of the breach of any of the
above representations and warranties, whether such breach is discovered before or after closing.
Except as herein expressly stated, Buyer is purchasing the Property based upon its own investigation
and inquiry and is not relying on any representation of Seller or any agent or representative of Seller,
and Buyer agrees to accept and purchase the Property "As Is" and "Where Is" subject only to the
express warranties herein contained.
8. Damage or Destruction. If, prior to the Closing Date, the Property or any part
thereof shall be damaged or destroyed by fire or other casualty, this Agreement shall become null and
void at Buyer's option by written notice to Seller and, in such case, Seller will be entitled to the
insurance proceeds and Buyer shall receive a refund of the Earnest Money. If Buyer does not
terminate this Agreement, despite said damage or destruction, there shall be no reduction in or
abatement of the Purchase Price and Seller shall assign all insurance proceeds it received due to the
damage or destruction to Buyer.
9. Broker's Commission. Seller and Buyer represent and warrant to each other that
they have dealt with no brokers, finders or the like in connection with this transaction and agree to
indemnify each other and to hold each other harmless against all claims, damages, costs or expenses
of or for any such fees or commissions resulting from their separate actions or agreements with any
brokers regarding the Property or performance of this Agreement, and will pay all costs of defending
any action or lawsuit brought to recover any such fees or commissions incurred by the other party,
including reasonable attorneys' fees. Seller discloses that Kelly J. Doran is a licensed real estate
broker in the state of Minnesota.
10. Notices. Any notice, request or other cominunication required or provided to be given
under this Agreement shall be in writing and shall be deemed to be duly given when delivered
personally or when mailed by first class United States mail, postage prepaid, addressed as follows:
To Seller: Hopkins/Doran, LLC.
Attention: Kelly J. Doran
7803 Glenroy Road x#200
Bloomington, MN 55439
Hopciv\PurchaseAgreement.HopkinsDoranLLC. l 0.3 l .13
With a Copy to be mailed to: Anne T. Behrendt
Doran Companies
7803 Glenroy Rd. Suite 200
Bloomington, MN 55439
To Buyer: Hopkins Housing and Redevelopment Authority
Attention: Executive Director
1010 First Street South
Hopkins, MN 55343
With a Copy to be mailed to Jeremy S. Steiner
simultaneously to: Steiner & Curtiss, P.A.
400 Norwest Bank Building
1011 First Street South
Hopkins, Minnesota 55343
or to such other address as either party, by notice given as herein provided, shall designate. Mailed
notice shall be conclusively deemed to have been given one (1) business day after the date of
mailing. Any party may change its address for notice purposes by notice given to the other party as
provided above.
11. Survival. All of the terms of this Agreement shall survive and be enforceable for a
period of one hundred eighty (180) days after the Closing, provided Seller's indemnification
obligations under Section 7 of this Agreement shall survive and be enforceable for the one (1) year
period specified in Section 7.
12. Cautions. 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.
13. Entire Agreement; Modification. This written Agreement constitutes the complete
agreement between the parties and supersedes any prior oral or written agreements between the
parties regarding the purchase of the Property by Buyer. There are no verbal agreements that change
this Agreement and no waiver or modification of any of its terms will be effective unless in a writing
executed by the parties.
14. Binding Effect. This Agreement binds and benefits the parties and their successors
and assigns.
15. Controlling Law. This Agreement has been made under the laws of the State of
Minnesota, and such laws will control its interpretation.
16. Default by Seller. If Seller fails and refuses to perform its obligations under this
Agreement and such failure to perform continues for a period of fifteen (15) days after Buyer notifies
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Seller, in writing, of such nonperfonnance, Buyer may, at its option, elect one of the following
remedies:
(a) To terminate this Agreement by written notice to Seller, in which event the Earnest
Money shall be refunded to Buyer and neither party shall have any further rights or
obligations hereunder; or
(b) To enforce specific performance of Seller's obligations under this Agreement,
including specifically the conveyance of the Property in the condition required
hereby. In the event of such a proceeding for specific performance, the prevailing
party in such proceeding shall be entitled to be awarded its reasonable attorneys' fees.
17. Default by Buyer. If Buyer defaults under this Agreement, Seller shall have the right
to terminate this Agreement by giving written notice to Buyer in accordance with Minn. Stat. 559.21.
If Buyer fails to cure such default within thirty (30) days of the date of service of such notice in
accordance with Minn. Stat. 559.21, this Agreement will terminate, and, upon such termination,
Seller will retain the Earnest Money as liquidated damages and not as a penalty, time being of the
essence of this Agreement. Termination of this Agreement and retention of the Earnest Money shall
be the sole remedy available to Seller for a default by Buyer, and Buyer shall not be liable for
damages or specific performance.
18. Third Party Beneficiary. Except as expressly provided in Section 24, below, there
are no third party beneficiaries of this Agreement, intended or otherwise.
19. No Joint Venture or Partnership. Seller and Buyer, by entering into this Agreement
and completing the transactions described herein, shall not be considered joint venturers or partners.
20. Time Periods. If the time for performance of any obligations under this Agreement
expires on a day that is not a business day, the time for performance shall be extended to the next
business day.
21. Attorneys' Fees. If either Seller or Buyer files any action or brings any proceeding
against the other arising out of this Agreement, or is made a party to any action or proceeding
brought by a third party arising out of this Agreement without fault of the defending party, then as
between Seller and Buyer, the prevailing party in any such action or proceeding shall be entitled to
recover, as an element of its costs of suit and not as damages, reasonable attorneys' fees to be fixed
by the Court. The "prevailing party" shall be the party who is entitled to recover its costs of suit,
whether or not the suit proceeds to final judgment. A party not entitled to recover its costs shall not
recover attorneys' fees. No sum for attorneys' fees shall be counted in calculating the amount of a
judgment for purposes of detennining whether a party is entitled to attorneys' fees.
22. Mutual Release of Claims. Reference is ]Wade to the Third Amended and Restated
Contract for Private Redevelopment dated May 22, 2008, between Buyer and Doran -Pratt
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Development, LLC, as amended by Amendments dated August 1, 2008 and October 1, 2008,
(collectively the "Redevelopment Contract"). Doran -Pratt Development, LLC, is an affiliated entity
of Seller. In consideration of Buyer's agreement to purchase and Seller's agreement to sell the
Property upon the terms and conditions stated in this Agreement, Buyer agrees to enter into, execute
and deliver the Mutual Release of claims arising under the Redevelopment Contract attached hereto
as Exhibit B. Seller acknowledges and agrees Seller shall cause such Mutual Release to be executed
and delivered, at closing, by Doran -Pratt Development, LLC as a condition of Buyer's obligation to
close the transaction described in this Agreement.
23. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which together shall be one and the same instrument.
Seller and Buyer have executed this Agreement effective as of the latest date set forth
opposite the parties' signatures, below, herein referred to as the "Effective Date".
Dated: 12013 HOPKINS/DORAN, LLC
By
Its
Dated: , 2013 HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY
OF HOPKINS
By
Its
By
Its
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EXHIBIT A
Legal Description of Property
15 — 6h Avenue North, Hopkins, Minnesota 55343
Property Identification No. 24-117-22-42-0017
Lot 6, Block 64, West Minneapolis Second Division and the South 50 feet of the North 162.2
feet of Lot 3, Auditor's Subdivision No. 242, Hennepin County, Minnesota
501 Mainstreet, Hopkins, Minnesota 55343
Property Identification No. 24-117-22-42-0009
All of Lot 5 and the South 110 feet of Lot 6, Auditor's Subdivision No. 242, Hennepin County,
Minnesota.
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vowft
MUTUAL RELEASE
This Mutual Release is made and entered into effective , by and
between the Housing and Redevelopment Authority in and for the City of Hopkins, Minnesota
("Hopkins HRA"), Doran -Pratt Development, LLC, a Minnesota limited liability company ("Doran -
Pratt"), Kelly J. Doran, ("Guarantor") and Hopkins/Doran, LLC a Minnesota limited liability
company ("Hopkins/Doran")
RECITALS
A. The Hopkins HRA and Doran -Pratt are the parties to that certain Third Amended and
Restated Contract for Private Redevelopment dated May 22, 2008, as amended by Amendments
dated August 1, 2008 and October 1, 2008, (collectively, the "Redevelopment Contract"). Pursuant
to a Guaranty dated August 13, 2008 ("Guaranty"), Guarantor personally guaranteed the performance
of Doran-Pratt's obligations under the Redevelopment Contract. The Redevelopment Contract sets
forth the terms and conditions upon which Doran -Pratt was to acquire and redevelop the
"Redevelopment Property" as defined in the Redevelopment Contract ("Redevelopment Property").
B. The Hopkins HRA has alleged Doran -Pratt is in default in the performance of its
obligations under the Redevelopment Contract and has demanded that Doran -Pratt and Guarantor
reimburse the Hopkins HRA for costs, expenses, damages and attorney's fees incurred by the
Hopkins HRA in the performance of its obligations under the Redevelopment Contract or otherwise
related to the Redevelopment Contract. Doran -Pratt and Guarantor have denied liability for such
claims by the Hopkins HRA and have alleged that the Redevelopment Contract was cancelled and
that the Hopkins HRA defaulted in the performance of its obligations under the Redevelopment
Contract.
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C. Pursuant to a Purchase Agreement dated , 2013, ("Purchase
Agreement") by and between the Hopkins HRA and Hopkins/Doran, the Hopkins HRA has agreed to
purchase and Hopkins/Doran has agreed to sell certain "Property" as described in the Purchase
Agreement (the "Property") to the Hopkins HRA. The Property is part of the "Redevelopment
Property" that is the subject of the Redevelopment Contract.
D. Doran -Pratt, Hopkins/Doran and Guarantor are affiliates of one another. Guarantor is
the owner of a controlling interest and a principal in Doran -Pratt and Hopkins/Doran. The Hopkins
HRA and Hopkins/Doran have agreed, as part of the Purchase Agreement, that the Hopkins HRA,
Doran -Pratt, Hopkins/Doran and Guarantor shall execute and deliver this Mutual Release at the time
of closing of the purchase and sale of the Property pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated in
and made a part of this Mutual Release, the Hopkins HRA, Doran -Pratt, Hopkins/Doran and
Guarantor agree as follows:
1. In consideration of the sale of the Property to the Hopkins HRA in accordance with
the terms of the Purchase Agreement and the terms, covenants and conditions of this
Mutual Release, the Hopkins HRA hereby releases and forever discharges Doran -
Pratt, Hopkins/Doran and Guarantor and, as applicable, their affiliates, owners,
members, govenors, officers, employees, successors and assigns, of and from any and
all claims, demands, actions and causes of action of every kind and nature
whatsoever, at law or in equity, which the Hopkins HRA may now or hereafter have
or claim to have against said parties, arising out of or resulting from, directly or
indirectly, the Redevelopment Contract, the Guaranty or the matters that are the
subject of the Redevelopment Contract, provided the Hopkins HRA does not release
but expressly reserves all claims and causes of action arising under the Purchase
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Agreement to the extent such claims or causes of action survive the closing of the
transaction described therein.
2. In consideration of the terms, covenants and conditions of this Agreement, Doran -
Pratt, Hopkins/Doran and Guarantor, hereby release and forever discharge, the
Hopkins HRA and the City of Hopkins, Minnesota and their respective officers,
officials, commissioners, employees, representatives, successors and assigns, of and
from any and all claims, demands, actions and causes of action of every kind and
nature whatsoever, at law or in equity, which Doran -Pratt, Hopkins/Doran or
Guarantor may now or hereafter have or claim to have against the Hopkins HRA or
the City of Hopkins or their respective officers, elected officials, commissioners,
employees, representatives, successors and assigns, arising out of or resulting from,
directly or indirectly, the Redevelopment Contract or the matters that are the subject
of the Redevelopment Contract, provided Hopkins/Doran does not release but
expressly reserves all claims and causes of action arising under the Purchase
Agreement to the extent such claims or causes of action survive the closing of the
transaction described therein.
3. Doran -Pratt represents and warrants that it has not assigned its interest in the
Redevelopment Contract or any claims arising out of the Redevelopment Contract or
related in any way thereto to a third party, that the individual executing this Mutual
Release on behalf of Doran -Pratt has been duly and properly authorized to do so and
that this Release is binding on Doran -Pratt.
4. It is understood and agreed that the foregoing Releases are full and final releases of
all claims of every kind and nature whatsoever, and release claims that are known or
unknown, suspected or unsuspected. With the exception of the City of Hopkins,
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there are no third party beneficiaries of this Mutual Release, intended or otherwise.
5. The undersigned parties agree that, upon execution of this Mutual Release by all
parties, the Redevelopment Contract shall be terminated and be of no further force or
effect.
6. This Mutual Release is made solely for the purpose of resolving the matters
addressed herein and nothing in this Mutual Release shall be construed as or
constitute an admission of liability or concession of wrong doing on the part of any
party, all liability and claims being expressly denied and contested.
7. If any provision of this Mutual Release is declared illegal or unenforceable by any
court of competent jurisdiction and it cannot be modified to be enforceable, that
provision will become void, leaving the remainder of this Mutual Release in full
force and effect.
8. This Mutual Release shall be subject to and governed by the laws of the State of
Minnesota. Any action arising from or relating to this Mutual Release shall be
venued in District Court in Hennepin County, State of Minnesota, and the parties
hereby consent to the personal jurisdiction of said court.
9. The parties to this Mutual Release represent and warrant: that each has the sole right
and exclusive authority to execute this Mutual Release; that the individual executing
this Mutual Release on behalf of each party has been duly authorized to do so; and
that such party has not sold, assigned, transferred, conveyed or otherwise disposed of
any of the claims, demands, obligations, or causes of action covered by this Mutual
Release.
10. This Mutual Release contains the entire agreement of the parties related to its subject
matter and may be changed, modified or altered only by an agreement in writing,
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Hopciv\PurchaseAgreement.HopkinsDoran LLC.10.31.13
signed by the parties. No other representations, inducements, covenants,
undertakings, or other prior or contemporaneous agreements, oral or written,
respecting any matters which are not specifically incorporated herein shall be deemed
in any way to exist or to bind any of the parties.
11. This Mutual Release may be executed in multiple counterparts, each of which shall
be deemed an original, but all of which together shall be deemed one and the same
instrument.
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
HOPKINS, MINNESOTA
By_
Its
Chairman
By
Its Executive Director
Hopciv\PurchaseAgreement.HopkinsDoranLL.C.10.31.13
Kelly J. Doran
DORAN-PRATT DEVELOPMENT, LLC
By_
Its
17'
HOPKINS/DORAN, LLC
Its