HomeMy WebLinkAbout2014-11-12 PACKET 04.D.02.
11-6-14
FIRST AMENDED AND RESTATED
CONTRACT
FOR
PRIVATE DEVELOPMENT
By and Between
COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY
And
LEAFLINE LABS, LLC
This document drafted by:
LeVander, Gillen & Miller, P.A.
633 South Concord St. Suite 400
South St. Paul, MN 55075
651-451-1831
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions .................................................................................................................. 1
Section 1.1.Definitions................................................................................................... 1
Section 1.2.Exhibits ....................................................................................................... 2
Section 1.3.Rules of Interpretation. ............................................................................... 3
ARTICLE II Representations and Warranties ................................................................................ 3
Section 2.1.Representations by the Authority................................................................ 3
Section 2.2.Representations and Warranties by the Developer ..................................... 4
ARTICLE III Sale of Development Property; Title; Closing ......................................................... 4
Section 3.1.Sale of Development Property .................................................................... 4
Section 3.2.Purchase Price ............................................................................................. 4
Section 3.3.Document Review ....................................................................................... 5
Section 3.4. ......................................................................... 5
Section 3.5.Title. ............................................................................................................ 5
Section 3.6.Closing ........................................................................................................ 6
Section 3.7.Right of Entry ............................................................................................. 8
Section 3.8.Platting ........................................................................................................ 8
ARTICLE IV Construction of Minimum Improvements ............................................................... 8
Section 4.1.Construction of Developer and Minimum Improvements .......................... 8
Section 4.2.Grading/Drainage Plan and Easements ....................................................... 8
Section 4.3.Street Maintenance, Access, and Repair ..................................................... 9
Section 4.4.Erosion Control ........................................................................................... 9
Section 4.5.Zoning; Other Approvals ............................................................................ 9
Section 4.6.Commencement and Completion of Construction ...................................... 9
Section 4.7.Certificate of Completion ......................................................................... 10
Section 4.8.Reconstruction of Improvements .............................................................. 10
ARTICLE V Other Obligations of Developer .............................................................................. 10
Section 5.1.Building Permit Fees................................................................................. 10
Section 5.2.Administrative Costs ................................................................................. 10
Section 5.3.Miscellaneous Requirements .................................................................... 11
ARTICLE VI Insurance ................................................................................................................ 11
Section 6.1.Required Insurance ................................................................................... 11
Section 6.2.Evidence of Insurance ............................................................................... 12
ARTICLE VII [This Section intentionally left blank.] ................................................................. 12
ARTICLE VIII Prohibition Against Sale; Encumbrances ............................................................ 12
Section 8.1.Prohibition Against Sale of Minimum Improvements .............................. 12
Section 8.2.Limitation Upon Encumbrance of Development Property ....................... 13
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ARTICLE IX Events of Default ................................................................................................... 14
Section 9.1.Events of Default Defined ........................................................................ 14
Section 9.2.Remedies on Default ................................................................................. 14
Section 9.3.Intentionally Omitted ................................................................................ 15
Section 9.4.No Remedy Exclusive............................................................................... 15
Section 9.5.No Additional Waiver Implied by One Waiver ........................................ 15
ARTICLE X Additional Provisions .............................................................................................. 15
Section 10.1.Conflict of Interests; Representatives Not Individually Liable ................ 15
Section 10.2.Equal Employment Opportunity ............................................................... 15
Section 10.3.Restrictions on Use ................................................................................... 15
Section 10.4.Provisions Not Merged With Deed ........................................................... 16
Section 10.5.Notices and Demands ............................................................................... 16
Section 10.6.Counterparts .............................................................................................. 16
Section 10.7.Disclaimer of Relationships ...................................................................... 16
Section 10.8.Right of First Refusal ................................................................................ 16
EXHIBIT A LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
EXHIBIT B FORM OF QUIT CLAIM DEED
EXHIBIT C PRELIMINARY PLAN DOCUMENTS
EXHIBIT D FORM OF CERTIFICATE OF COMPLETION
EXHIBIT E PRELIMINARY PLAT
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CONTRACT FOR PRIVATE DEVELOPMENT
THIS AGREEMENT, made this 12th day of November, 2014, by and between the Cottage
Grove Economic Development Authority, a public body corporate and politic under the laws of
Minnesota, having its principal office at 12800 Ravine Parkway South, Cottage Grove, Minnesota
nd
its principal office at 222 2 Street SE, Minneapolis, MN 55414
WITNESSETH:
WHEREAS, the Authority entered into a Purchase Agreement for the purchase of
Improvements; and
WHEREAS, the Authority is willing to sell Development Property to Developer for the
construction and operation of Minimum Improvements; and
WHEREAS, the Authority believes that the development of land pursuant to this
Agreement and the fulfillment generally of this Agreement are in the vital and best interests of
Cottage Grove and the health, safety, morals, and welfare of its residents;
WHEREAS, the parties entered into a Contract for Private Development on September 17,
2014;
WHEREAS, the parties desire to amend the Agreement in order to clarify, modify and
include other terms and conditions.
NOW, THEREFORE, in consideration of the covenants and the mutual obligations
contained herein, the Authority and the Developer hereby covenant and agree with the other as
follows:
ARTICLE I
Definitions
Section 1.1.Definitions. In this Agreement the following terms shall have the meanings
given unless a different meaning clearly appears from the context:
amended, or supplemented.
attached hereto, which will be provided to the Developer pursuant to Article IV of this Agreement.
Minnesota.
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on or before January 1, 2015, as may be extended
pursuant to Section 3.4 of this Agreement, unless otherwise agreed to by the parties.
to be submitted by the Developer and approved by the Authority.
d liability company, its
successors and assigns.
will be constructed, which property is generally described in Exhibit A attached hereto.
he quit claim deed in the form attached hereto as
Exhibit B, by which the Authority will convey the Development Property to the Developer.
of this Agreement.
40,000 square foot
building for the purpose of a medical cannabis manufacturing facility and related improvements
consistent with the Preliminary Plans.
n on such Title Commitment and not
objected to by the Developer (other than such consensual liens).
construction of the Minimum Improvements which are on Exhibit C and attached hereto.
voluntary or involuntary.
, as agent for Old Republic National Title Insurance
th
Company, located at 7373 147 Street West, Suite 161, Apple Valley, Minnesota 55118.
weather conditions; strikes or other labor troubles; fire or other casualty to the Minimum
Improvements; litigation commenced by third parties which, by injunction or other similar judicial
action, directly results in delays; or, except those of the Authority reasonably contemplated by this
Agreement, any acts or omissions of any federal, State or local governmental unit which result in
delays in construction of the Minimum Improvements, or any other delays caused by reasons
outside of the reasonable control of Developer.
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Section 1.2.Exhibits. The following exhibits are attached to and by reference made a
part of this Agreement:
Exhibit A. Legal description of the Development Property
Exhibit B. Form of Quit Claim Deed
Exhibit C. Preliminary Plan Documents
Exhibit D. Form of Certificate of Completion
Exhibit E. Preliminary Plat
Exhibit F. Purchase Agreement
Section 1.3.Rules of Interpretation.
(a)This Agreement shall be interpreted in accordance with and governed
by the laws of Minnesota.
(b) similar import, without
reference to any particular section or subdivision, refer to this
Agreement as a whole rather than any particular section or subdivision
hereof.
(c)References herein to any particular section or subdivision hereof are
to the section or subdivision of this Agreement as originally executed.
(d)Any titles of the several parts, articles and sections of this Agreement
are inserted for convenience and reference only and shall be
disregarded in construing or interpreting any of its provisions.
ARTICLE II
Representations and Warranties
Section 2.1.Representations by the Authority. The Authority makes the following
representations as the basis for the undertakings on its part herein contained:
(a)The Authority is a public body corporate and politic under the laws of Minnesota.
The Authority has the power to enter into this Agreement and carry out its
obligations hereunder.
(b)The persons executing this Agreement and related agreements and documents on
behalf of the Authority have the authority to do so and to bind the Authority by
their actions.
(c)The Authority has received no notice or communication from any local, State or
federal official that the activities of the Developer or the Authority in the
Development District may be or will be in violation of any environmental law or
regulation. The Authority is aware of no facts the existence of which would cause
it to be in violation of any local, State or federal environmental law, regulation or
review procedure.
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(d)Other than the contingency of the approval of this Development Agreement,
Authority has a non-contingent Purchase Agreement for the purchase of the
Development Property and will close on the acquisition of the purchase to permit
the transfer to Developer.
(e)Authority will warrant the Development Property is buildable for the Minimum
Improvements and will make any soil corrections as reasonably necessary to
construct the Minimum Improvements.
Section 2.2.Representations and Warranties by the Developer. The Developer makes
the following representations as the basis for the undertakings on its part herein contained:
(a)The Developer is a Minnesota limited liability company, duly organized and in
good standing under the laws of Minnesota and is not in violation of any provisions
of its company documents or by-laws. The Developer has the power to enter into
this Agreement and carry out its obligations hereunder. The persons executing this
Agreement and related agreements and documents on behalf of the Developer have
the authority to do so and to bind the Developer by their actions.
(b)In the event the Development Property is conveyed to the Developer, the Developer
will construct, operate and maintain the Minimum Improvements on the
Development Property in substantial accordance with the terms of this Agreement,
the Construction Plans and all local, State and federal laws and regulations,
including, but not limited to, environmental, zoning, building code and public
health laws and regulations, excluding federal laws related to marijuana.
(c)The Developer will apply for and use its best efforts to obtain, in a timely manner,
all required permits, licenses and approvals, and will meet, in a timely manner, the
requirements of all applicable local, State and federal laws and regulations which
must be obtained or met before the Minimum Improvements may be lawfully
constructed or used for their intended purpose.
(d)The Developer will provide evidence to the Authority that it has sufficient funds
for the construction of Minimum Improvements prior to October 10, 2014.
(e)Earnest Money. The Developer will deposit Twenty-Five Thousand and 00/100
($25,000.00) cash in a trust account of Title Company as Earnest Money for the
purchase of Development Property. If Developer fails to Close on the Development
Property after the contingencies have been satisfied except due to a default by the
Authority, including, without limitation, a failure to convey the Development
Property to Developer as provided herein, Title Company shall release the Earnest
Money to the Authority. If the Authority fails to comply with any terms and
conditions of the Agreement prior to Closing, Title Company shall return the
Earnest Money to the Developer. If all contingencies are met and the parties
proceed to Closing, the Earnest Money shall be applied toward the Purchase Price.
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ARTICLE III
Sale of Development Property; Title; Closing
Section 3.1.Sale of Development Property. Subject to compliance with the terms of this
Agreement, the Authority agrees to sell to Developer, and Developer agrees to buy from the
Authority, the Development Property, subject only to Permitted Encumbrances.
Purchase Price. The Purchase Price for the Property shall be Three Million One Hundred
Nineteen Thousand, Three Hundred Thrity-One Dollars and 00/100 ($3,119,331.00) payable to
the Authority for approximately twenty-four (24) acres. The Purchase Price includes all area
th
charges, park dedication feescosts of 97 Street improvements, the
and sewer and water connection fees,
but does not include building permit fees, planning application fees, state surcharges, Metropolitan
Council Environmental Service Sewer Access Charges or platting fees.
Section 3.2.Section 3.3.Document Review. Within fifteen (15) days after the
Agreement is executed, the Authority shall make available to Developer for copying true and
correct copies of all available documents relating to the Development Property including test
analysis.
Section 3.3.Section 3.4.ingencies
this Agreement are contingent upon each of the following occurring on or before December 2,
2014
needed if the Minnesota Department of Health delays the registration decision referenced in
subparagraph (f) below.
(a)The condition of title shall have been found acceptable to Developer, or been made
acceptable, in accordance with the requirements and terms of this Section.
(b)The Developer shall have determined that it is satisfied with its review and analysis
of the documents submitted by the Authority pursuant to Section 3.3.
(c)The Authority has provided and the Developer has approved an ALTA survey, and
a Phase I Environmental Review for the Development Property.
(d)The Developer has submitted and the Authority has approved the Construction
Plans;
(e)Developer has received all municipal approvals and required letters of support from
local agencies;
(f)Developer is awarded a medical cannabis manufacture registration by the
Minnesota Department of Health;
(g)There has been no Event of Default (as defined in Section 9.1 of this Agreement)
on the part of the Developer which has not been cured.
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If any contingency set forth in this Section 3.4 has not been satisfied on or before the Contingency
option, by written notice from the Developer to the Authority. Such notice of termination must be
given at any time not later than the Closing Date.
Section 3.4.Section 3.5.Title.
(a)Condition of Title. On the Closing Date, the Authority shall be required to convey
fee title to the Development Property to the Developer, subject to no liens,
easements, encumbrances, conditions, reservations or restrictions other than the
Permitted Encumbrances.
(b)Title Insurance Commitment
and deliver to the Developer within twenty (20) days after the Effective Date of this
Agreement a Title Commitment from the Title C
Title Insurance in the amount of the Purchase Price. Within twenty (20) days after
receiving the Title Commitment and Survey, the Developer will make written
objections to the form and/or contents of the Title Commitment and Survey. The
waiver of objections, except that the Developer shall not be deemed by virtue of
failure to so object to have waived any proper objection relating to any consensual
lien on the Development Property and shall be considered a Permitted
Encumbrance.
The Authority shall have thirty (30) days after receipt of the objections to cure the objections,
during which period the Closing will be postponed as necessary. The Authority shall use its best
efforts to correct any objections. To the extent an objection can be satisfied by the payment of
money, the Authority shall have the right to apply a portion of the cash payable to the Authority
at the Closing to satisfy such objection and the amount so applied shall reduce the amount of cash
payable to the Authority at the Closing. If the objections are not cured within such thirty (30) day
ment by written
notice to the Authority; (ii) waive the objections and proceed to close; or (iii) give the Authority
an extension of up to thirty (30) additional days to correct any objections.
Section 3.5.Section 3.6.Closing. The consummation of the purchase and sale
transaction contemplated by this Agreement shall occur on or before the Closing Date at Title
Company. Notwithstanding the foregoing, the Closing may be extended as agreed to by the
Authority and the Developer or as may be necessary to permit Developer to satisfy
contingencies set forth in Section 3.4 hereof. The Authority shall deliver possession of the
Development Property to the Developer on the Closing Date.
(a). On the Closing Date, the Authority shall execute
and/or
where appropriate, be in recordable form.
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1. Deedpment
Property to Developer, free and clear of all encumbrances, except the
Permitted Encumbrances.
2. Title Policy. A Proforma Title Policy or a suitably marked up Commitment
for Title Insurance initialed by Title Company, in the form required by this
Agreement, including usual and customary endorsements required by
Developer.
3. . An Affidavit by the Authority indicating that on the
Closing Date there are no outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving the Authority or the Development
Property; that there has been no skill, labor or material furnished to the
Development Property for which payment has not been made or for which
ts
affidavit and/or indemnity (ALTA form) that may be required by Title
exceptions waived.
4. FIRPTA Affidavit. A non-foreign affidavit as required by applicable law.
5. Other Documents. All other documents reasonably determined to be
necessary to transfer the Development Property to Developer free and clear
of all encumbrances except for the Permitted Encumbrances or as requested
by the Title Company.
(b). On the Closing Date, Developer will execute
and/or deliver to the Authority the following, which (in the case of documents) are
shall be duly executed and, where appropriate, be in recordable form.
1. Purchase Price. The balance of the cash portion of the Purchase Price by
wire transfer or other immediately available funds, or a combination of cash
and Assessment Agreements approved by the City that together, total the
Purchase Price.
2. Other Documents. Such other documents as may be reasonably required by
Title Insurance Policy required by this Agreement.
(c)Costs and Prorations. The Authority and Developer agree to the following
prorations and allocation of costs regarding this Agreement:
1. All real estate taxes due and payable in the year of Closing shall be prorated
on a daily basis through the Closing Date. The Authority shall pay all
special assessments levied or pending as of the Closing Date. Developer
shall pay all real estate taxes due and payable in years following Closing.
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The Developer shall pay all special assessments levied from and after the
Closing Date.
2. The Authority shall pay all title charges for the issuance of the Title
Commitment.
3.
insurance.
4. Developer shall pay all costs of recording the Deed.
5. The Authority shall pay for the cost of recording any other documents
necessary to convey the Development Property as required by this
Agreement.
6. The Authority shall pay the deed tax.
7. Any closing fee payable to the Title Company shall be divided equally
between Developer and the Authority.
8. There are no brokerage or real estate fees or commissions due and payable
by the Authority as part of this transaction.
Section 3.6.Section 3.7.Right of Entry. The Authority hereby agrees to a right of
entry in favor of Developer for any environmental, site preparation, site grading and installation
of footings prior to the transfer of title of Development Property to the Developer. Any
improvements, such as footings, shall b removed if this
Agreement is terminated prior to Closing. Developer shall have 30 days to remove any
improvements and regrade the site if this Agreement is terminated prior to Closing.
Section 3.7.Section 3.8.Platting. The Authority agrees to replat the Development
Property as a separate parcel at its sole cost and expense prior to the issuance of any building
permits. A draft plat is attached hereto as Exhibit E.
ARTICLE IV
Construction of Minimum Improvements
Section 4.1.Construction of Developer and Minimum Improvements. (a) Within 120
days after execution of this Agreement, the Developer shall submit Construction Plans to the
Authority. The Construction Plans shall provide for the construction of Minimum Improvements
and shall be in substantial conformity with the Preliminary Plans listed on Exhibit C, attached
hereto. All Developer and Minimum Improvements constructed on the Development Property
shall be constructed, operated and maintained in accordance with the terms of the Construction
Plans, this Agreement, the Comprehensive Plan, and all local, Minnesota and federal laws and
regulations (including, but not limited to, Environmental Controls and Land Use Regulations),
excluding federal laws relating to marijuana. Developer will use commercially reasonable efforts
to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals,
and will use commercially reasonable efforts to meet, in a timely manner, the requirements of
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applicable Environmental Controls and Land Use Regulations which must be met before
Developer Improvements may be lawfully constructed.
(b) Temporary Structures. During construction of Minimum Improvements,
Developer shall be allowed to have up to eight (8) temporary structures in order to operate its
facility (exclusive of construction trailers). The temporary structure may have up to 8,000 square
feet in size and must be removed within six (6) months after the Minimum Improvements are
completed or by December 31, 2015, whichever occurs first. The temporary structures must
comply with security measures required by the Minnesota Department of Health.
Section 4.2.Grading/Drainage Plan and Easements. Developer shall construct drainage
facilities adequate to serve the Minimum Improvements in accordance with the Construction Plans.
Developer agrees to grant to the City all necessary easements for the preservation of the drainage
system, for drainage basins, and for utility service as required by the City. The grading and
drainage plan shall include any measures necessary to conform to the overall City storm sewer
plan, including but not limited to such considerations as lot and building elevations, drainage
swales, storm sewer, catch basins, erosion control structures and ponding areas. The grading of
the site shall be completed in conformance with the Construction Plans. All storm sewer facilities,
which case, that portion of the facilities shall be public.
Section 4.3.Street Maintenance, Access, and Repair. The Developer shall clear, on a
daily basis, any soil, earth or debris from the existing streets within or adjacent to this Minimum
Improvements resulting from the grading or building on the land within the Minimum
Improvements by the Developer or its agen
gravel base contaminated by mixing construction or excavation debris or earth in it, and repair to
equipment.
Section 4.4.Erosion Control. The Developer shall provide and follow a plan for erosion
control and pond maintenance in accord with the Best Management Practices (BMP) as delineated
by the Minnesota Pollution Control Agency. Such plan shall be detailed on the Construction Plans
and shall be subject to approval of the City. The Developer shall install and maintain such erosion
control structures as appear necessary under the Construction Plans or become necessary
subsequent thereto. The Developer shall be responsible for all damage caused as the result of
grading and excavation within the Minimum Improvements including, but not limited to,
restoration of existing control structures and clean-up of public right-of-way. As a portion of the
erosion control plan, the Developer shall re-seed or sod any disturbed areas in accordance with the
Construction Plans. The City reserves the right to perform any necessary erosion control or
restoration as required, if these requirements are not complied with after Formal Notice by the
City. The Developer shall be financially responsible for payment for this extra work.
Section 4.5.Zoning; Other Approvals. The Authority agrees to exercise its reasonable
efforts to grant or obtain such land use planning review and approvals as may be required in
connection with the development of the Minimum Improvements by applicable Land Use
Regulations. The parties agree that the development of the Minimum Improvements is in the
public interest, will provide significant and important benefits to the City and its residents, and is
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a desirable and appropriate use of the Development Property. Developer acknowledges and agrees
that the Authority cannot and does not undertake in this Development Agreement to bind itself to
grant or obtain any approvals, permits, variances, zoning or rezoning applications or other matters
within the legislative or quasi-judicial discretion of the Authority or the governing body of any
other political subdivision or public agency. The Authority nevertheless agrees that upon request
of Developer, it will cooperate with Developer to seek and secure approvals, permits, variances,
and other matters as may be required prior to the acquisition by Developer of all portions of the
Development Property affected thereby, to cause such matters to be timely considered by the
Authority, City and Planning Commission or the governing body of other political subdivisions or
public agencies with jurisdiction, and to otherwise cooperate with Developer to facilitate
implementation of the Minimum Improvements.
Section 4.6.Commencement and Completion of Construction. Subject to Unavoidable
Delays, the Developer shall commence construction of the Minimum Improvements no later than
May 1, 2015. Subject to Unavoidable Delays, the Developer shall have substantially completed
the construction of the Minimum Improvements no later than January 31, 2016. All work with
respect to the Minimum Improvements to be constructed or provided by the Developer on the
Development Property shall be in substantial conformity with the Construction Plans and
Developer will not modify the size or exterior appearance of the Minimum Improvements without
the consent of the Authority and the City, which consent shall not be unreasonably withheld. The
Developer shall make such reports to the Authority regarding construction of the Minimum
Improvements as the Authority deems necessary or helpful in order to monitor progress on
construction of the Minimum Improvements.
Section 4.7.Certificate of Completion. (a) After substantial completion of the Minimum
Improvements in accordance with the Construction Plans and all terms of this Agreement, the
Authority will furnish the Developer with a Certificate of Completion in the form of Exhibit D
hereto. Such certification by the Authority shall be a conclusive determination of satisfaction and
termination of the agreements and covenants in this Agreement and in the Development Property
Deed with respect to the obligations of the Developer to construct the Minimum Improvements
and the dates for the beginning and completion thereof. The Certificate of Completion shall only
be issued after issuance of a certificate of occupancy by the City.
(b) The Certificate of Completion provided for in this Section 4.7 shall be in such form
as will enable it to be recorded in the proper County office for the recordation of deeds and other
instruments pertaining to the Development Property. If the Authority shall refuse or fail to provide
such certification in accordance with the provisions of this Section 4.7, the Authority shall, within
thirty (30) days after written request by the Developer, provide the Developer with a written
statement, indicating in adequate detail in what respects the Developer has failed to complete the
Minimum Improvements in accordance with the provisions of the Agreement, or is otherwise in
default of a material term of this Agreement, and what measures or acts will be necessary, in the
opinion of the Authority, for the Developer to take or perform in order to obtain such certification.
Section 4.8.Reconstruction of Improvements. If the Minimum Improvements are
damaged or destroyed before completion thereof and issuance of a Certificate of Completion, the
Developer agrees, for itself and its successors and assigns, to reconstruct the Minimum
Improvements within one year of the date of the damage or destruction. The Minimum
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Improvements shall be reconstructed in accordance with the approved Construction Plans, or such
modifications thereto as may be requested by the Developer and approved by the Authority in
accordance with Section 4.1 of this Agreement, which approval will not be unreasonably withheld.
4.8 shall end when the Certificate of Completion is issued.
Section 4.9. Additional Construction Requirements.
(a)As an alternative to the previously approved screening requirements, Developer
may construct one southern barrier wall to screen their mechanicals in the same
material as the principal structure, however, if they choose to do so, associated
landscaping from Phase II depicted on Plan L100 will need to be completed as part
of Phase I.
(b)At its own expense, the Developer shall extend water main looping to the southwest
property line at the time of Phase II development or when the adjacent site property
requires the extension, whichever occurs first. Such extension shall be done
(c)Any public improvements to the adjacent street and sidewalk shall be constructed
in accordance with the public construction plan, Figure 1, included with the
Preliminary Plan Documents.
(d)At time of building permit approval for Phase I, Developer shall provide a cash
escrow or a letter of credit in the amount of 150% of the costs for Phase I
landscaping to assure completion and establishment of such landscaping
improvements.
ARTICLE V
Other Obligations of Developer
Section 5.1.Building Permit Fees. Developer acknowledges that building permit fees
will be payable by Developer or Successor Developer for Developer Improvements.
Section 5.2.Administrative Costs. The Authority has incurred and will continue to incur
administrative costs in reviewing, analyzing, negotiating and studying the Minimum
Improvements and this Development Agreement. In consideration of the time, effort and expenses
to be incurred in pursuing the undertakings set forth herein, on or before execution of this
Agreement, Developer agrees to pay a $5,000 deposit for the costs of certain consulting fees,
including planning, financial, attorneys, engineering, testing and any special meetings. If the
obligations of Developer under this Agreement result in a reduction of the $5,000 cash deposit to
a level of $1,000 or less, then at such point, Developer shall make an additional cash deposit with
the Authority to raise the total cash on deposit with the Authority to $5,000. This process of
redeposit shall be continued until all of the monetary obligations of Developer pursuant to this
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Section are paid in full. The obligations set forth in this shall remain in full force and effect and
shall survive any termination until all monetary obligations of Developer are paid in full. If, after
completion of the tasks contemplated by this Agreement and if, after appropriate payment to the
Authority, there remains on deposit any sum, then such sum shall be paid over to Developer by
the Authority within 30 days after such completion and payment. If Developer terminates this
remainin
the deposit shall be retained by the Authority.
Section 5.3.Miscellaneous Requirements. Any additional requirements as specified by
the Authority are incorporated herein.
ARTICLE VI
Insurance
Section 6.1.Required Insurance. The Developer agrees to provide and maintain or cause
its general contractor to provide and maintain at all times during the process of constructing the
Minimum Improvements and, from time to time at the request of the Authority, furnish the
Authority with proof of payment of premiums on:
(a)--- Completed
value of the Minimum Improvements at the date of completion, and with coverage
(b)Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations and contractual
against bodily injury and property damage of not less than $1,000,000 for each
occurrence (to accomplish the above required limits, an umbrella excess liability
policy may be used); and
(c)
The policies of insurance required pursuant to clauses (1) and (2) above shall be in form and
content reasonably satisfactory to the Authority and shall be placed with financially sound and
reputable insurers licensed to transact business in Minnesota. The policy of insurance delivered
pursuant to clause (1) above shall contain an agreement of the insurer to give not less than thirty
uthority in the event of cancellation of such policy or
change affecting the coverage thereunder.
Section 6.2.Evidence of Insurance. All insurance required in this Article VI shall be
taken out and maintained in responsible insurance companies selected by the Developer which are
authorized under the laws of Minnesota to assume the risks covered thereby. The Developer agrees
to deposit annually with the Authority copies of policies evidencing all such insurance, or a
certificate or certificates or binders of the respective insurers stating that such insurance is in force
and effect. Unless otherwise provided in this Article VI, each policy shall contain a provision that
the insurer shall not cancel nor materially modify it without giving written notice to the Developer
and the Authority at least thirty (30) days before the cancellation or modification becomes
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effective. Not less than fifteen (15) days prior to the expiration of any policy, the Developer shall
furnish the Authority evidence satisfactory to the Authority that the policy has been renewed or
replaced by another policy conforming to the provisions of this Article VI, or that there is no
necessity therefor under the terms of this Agreement. In lieu of separate policies, the Developer
may maintain a single policy, blanket or umbrella policies, or a combination thereof, having the
coverage required herein, in which event the Developer shall deposit with the Authority a
certificate or certificates of the respective insurers as to the amount of coverage in force upon the
Minimum Improvements.
ARTICLE VII
[This Section intentionally left blank.]
ARTICLE VIII
Prohibition Against Sale; Encumbrances
Section 8.1.Prohibition Against Sale of Minimum Improvements. The Developer
represents and agrees that its use of the Development Property and its other undertakings pursuant
to the Agreement, are, and will be, for the purpose of development of the Development Property
and not for speculation in land holding. The Developer further recognizes that in view of the
importance of the construction of the Minimum Improvements on the Development Property to
the general welfare of Cottage Grove and the substantial assistance that has been made available
by the Authority for the purpose of making such Development possible, the fact that any act or
transaction involving or resulting in a significant change in the identity of the Developer is of
particular concern to the Authority. The Developer further recognizes that it is because of such
qualifications and identity that the Authority is entering into the Agreement with the Developer,
and, in so doing, is further willing to accept and rely on the obligations of the Developer for the
faithful performance of all undertakings and covenants hereby by it to be performed. For the
foregoing reasons, the Developer represents and agrees that, prior to the issuance of the Certificate
of Completion, there shall be no sale of the Development Property or the Minimum Improvements
by the Developer nor shall the Developer suffer any such sale to be made, without the prior written
approval of the Authority.
(a)As security for the obligations of Developer under this Agreement, Developer
represents and agrees that prior to the issuance of the Certificate of Completion,
Developer will maintain its existence as a Minnesota limited liability company and
shall not consolidate with or merge into another entity and shall not dissolve or
otherwise dispose of all or substantially all of its assets except as permitted by this
Agreement. Nothing herein shall prevent Developer from selling or issuing
additional membership interests in Developer. Developer and any entity
ts in the Minimum Improvements or
any part under this Section may consolidate with or merge into another entity or
sell or otherwise transfer to a partnership or limited liability company, or other legal
entity, or an individual, all or any part of its interest in this Agreement and the
Minimum Improvements and thereafter be discharged from liability hereunder to
the extent of the interest so transferred, if Developer or such Successor Developer
is not in default of any of its material obligations under this Agreement, if the
transferee partnership, limited liability company, entity or individual enters into a
13
written agreement assuming all of the obligations of Developer under this
Agreement not retained by Developer, if any, with respect and to the extent of the
interest so transferred, in form and substance reasonably acceptable to the
Authority, and the transferee partnership, limited liability company, entity or
individual is financially capable of and has experience in performing the obligations
of Developer under this Agreement and is approved by the Authority. In the event
of a consolidation, merger or sale in accordance with this subsection, Developer or
other transferor shall not be liable for any actions of the Successor Developer or
purchaser or have any liability under this Agreement with respect to matters arising
subsequent to such consolidation, merger or sale which relate to the interest so
transferred.
(b)Developer or any Successor Developer may not sell, transfer, lease or convey the
Development Property and its rights and obligations under this Development
Agreement with respect to such parcel to another entity, whether or not such
Successor Developer is under common management and control with Developer,
or is related to Developer, except in accordance with the terms of this Agreement.
Except as provided in Section 8.1(a) no such sale, transfer, conveyance or lease
shall be effective or recognized for any purpose hereunder, unless:
1. ligation under
any agreement relative to a Credit Provider and the Successor Developer is
approved by the Credit Provider and enters into a written assumption
agreement acceptable to the Credit Provider; and
2. The Successor Developer will assume all of D
obligations to the Authority and the Successor Developer is approved by the
Authority and enters into a written assumption agreement in form and
substance acceptable to the Authority.
Section 8.2.Limitation Upon Encumbrance of Development Property. Prior to the
issuance of the Certificate of Completion, the Developer agrees not to engage in any financing
creating any mortgage or other encumbrance or lien upon the Development Property or the
Minimum Improvements, whether by express agreement or operation of law, or suffer any
encumbrance or lien to be made on or attached to the Development Property or the Minimum
Improvements, other than the liens or encumbrances directly and solely related to construction of
the Minimum Improvements and approved by the Authority, which approval shall not be withheld
or delayed unreasonably if the Authority determines that such lien or encumbrance will not
threaten its security in the Development Property or the Minimum Improvements.
ARTICLE IX
Events of Default
Section 9.1.Events of Default Defined. Each and every one of the following shall be an
Event of Default under this Agreement:
14
(a)Failure by the Authority or the Developer to proceed to closing on the Development
Property after compliance with or the occurrence of all conditions precedent to
closing;
(b)Failure by the Developer to commence and complete construction of the Minimum
Improvements pursuant to the terms, conditions and limitations of Article IV of this
Agreement, including the timing thereof, unless such failure is caused by an
Unavoidable Delay;
(c)Failure by the Developer to pay real estate taxes or special assessments on the
Development Property and Minimum Improvements as they become due;
(d)Use by the Developer or others of the Minimum Improvements for purposes other
than those contemplated and permitted by this Agreement, including failure to
comply with Section 10.3 of this Agreement.
(e)Transfer or sale of the Development Property or the Minimum Improvements or
any part thereof by the Developer in violation of Section 8.1 of this Agreement and
without the prior written permission by the Authority;
(f)If the Developer shall file a petition in bankruptcy, or shall make an assignment for
the benefit of its creditors or shall consent to the appointment of a receiver; or
(g)Failure by either party to observe or perform any material covenant, condition,
obligation or agreement on its part to be observed or performed under this
Agreement or the Assessment Agreement;
Section 9.2.Remedies on Default. Whenever any Event of Default referred to in Section
9.1 of this Agreement occurs, the non-defaulting party may take any one or more of the following
actions after providing 30 days written notice to the defaulting party of the Event of Default, but
only if the Event of Default has not been cured within said thirty days or, if the Event of Default
is by its nature incurable within 30 days, the defaulting party does not provide assurances to the
non-defaulting party reasonably satisfactory to the non-defaulting party that the Event of Default
will be cured and will be cured as soon as reasonably possible:
(a)Suspend its performance under this Agreement, including refusing to close on the
Development Property, until it receives assurances from the defaulting party,
deemed adequate by the non-defaulting party, that the defaulting party will cure its
default and continue its performance under this Agreement;
(b)Terminate or rescind this Agreement;
(c)If the default occurs prior to completion of the Minimum Improvements, the
Authority may withhold the Certificate of Completion;
(d)Take whatever action, including legal or administrative action, which may appear
necessary or desirable to the non-defaulting party to collect any payments due under
this Agreement, or to enforce performance and observance of any obligation,
15
agreement, or covenant of the defaulting party under this Agreement or the
Assessment Agreement.
Section 9.3.Intentionally Omitted.
Section 9.4.No Remedy Exclusive. No remedy herein conferred upon or reserved to the
parties is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle the Authority or the Developer
to exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice
as may be required in Article IX of this Agreement.
Section 9.5.No Additional Waiver Implied by One Waiver. In the event any covenant
or agreement contained in this Agreement should be breached by either party and thereafter waived
by the other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
ARTICLE X
Additional Provisions
Section 10.1.Conflict of Interests; Representatives Not Individually Liable. No officer,
official, or employee of the Authority shall have any personal financial interest, direct or indirect,
in this Agreement, nor shall any such officer, official, or employee participate in any decision
relating to the Agreement which affects his or her personal financial interests, directly or indirectly.
No officer, official, or employee of the Authority shall be personally liable to the Developer, or
any successor in interest, in the event of any default or breach or for any amount which may
become due or on any obligation under the terms of this Agreement.
Section 10.2.Equal Employment Opportunity. The Developer, for itself and its
successors and assigns, agrees that during the construction of the Minimum Improvements
provided for in this Agreement, it will comply with all applicable equal employment and
nondiscrimination laws and regulations.
Section 10.3.Restrictions on Use. The Developer, for itself and its successors and
assigns, agrees to devote the Property and Minimum Improvements only to such land use or uses
ns, which Authority agrees includes use
as a medical cannabis production facility.
Section 10.4.Provisions Not Merged With Deed. None of the provisions of this
Agreement is intended to or shall be merged by reason of delivery of the Development Property
Deed and the Development Property Deed shall not be deemed to affect or impair the provisions
and covenants of this Agreement.
Section 10.5.Notices and Demands. Except as otherwise expressly provided in this
Agreement, any notice, demand, or other communication under the Agreement or any related
16
document by either party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified United States mail, postage prepaid, return receipt requested, or delivered
personally to:
(a)in the case of the Authority: 12800 Ravine Parkway South
Cottage Grove MN 55016
Attn: EDA Executive Director
nd
(b)in the case of the Developer: 222 2 Street SE
Minneapolis, MN 55414
Attn: Peter Bachman
or at such other address with respect to either such party as that party may, from time to time,
designate in writing and forward to the other as provided in this Section 10.5.
Section 10.6.Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 10.7.Disclaimer of Relationships. The Developer acknowledges that nothing
contained in this Agreement nor any act by the Authority or the Developer shall be deemed or
construed by the Developer or by any third person to create any relationship of third-party
beneficiary, principal and agent, limited or general partner, or joint venture between the Authority
and the Developer.
Section 10.8.Right of First Refusal. If vacant property immediately adjacent to the
Development Property becomes available for sale, Developer shall have a right of first refusal on
the vacant property, that is, the opportunity to match the primary business terms of a third party
offer to purchase the vacant land. Once the right of first refusal is presented to Developer in
writing, Developer shall have ten (10) business days to accept or reject the offer.
(The remainder of this page has been intentionally left blank.)
17
IN WITNESS WHEREOF, the Authority and the Developer have caused this Agreement
to be duly executed in their names and behalves on or as of the date first above written.
COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By
Myron Bailey
Its President
By
Ryan Schroeder
Its Executive Director
STATE OF MINNESOTA )
) SS
COUNTY OF _________ )
The foregoing instrument as acknowledged before me this _____ day of _________, 2014,
by Myron Bailey and Ryan Schroeder, president and executive director, respectively, of the
Cottage Grove Economic Development Authority, a public body corporate and politic under the
laws of Minnesota, on behalf of the Economic Development Authority.
Notary Public
18
LEAFLINE LABS, LLC
By
Its
STATE OF MINNESOTA )
) ss
COUNTY OF _________ )
The foregoing instrument was executed this ____ day of _________, 2014, by
________________, the ______________ of Leafline Labs, LLC, a Minnesota limited liability
company, on behalf of the company.
Notary Public
19
EXHIBIT A
LEGAL DESCRIPTION
That part of Outlot B, GLENGROVE INDUSTRIAL PARK 3RD ADDITION, according to the
recorded plat thereof, Washington County, Minnesota, described as follows:
Beginning at the northeast corner of said Outlot B; thence on an assumed bearing of South
0 degrees 07 minutes 51 seconds West along the east line of said Outlot B, a distance of
664.37 feet; thence South 89 degrees 48 minutes 39 seconds West a distance of 1400.02
feet; thence North 0 degrees 07 minutes 51 seconds East a distance of 775.01 feet to the
north line of said Oulot B; thence easterly along said north line to the point of beginning.
A-1
EXHIBIT B
FORM OF QUIT CLAIM DEED
B-1
(Top 3 inches reserved for recording data)
QUIT CLAIM DEED
Business Entity to Business Entity
eCRV number:
DEED TAX DUE: $ DATE:
FOR VALUABLE CONSIDERATION, Cottage Grove Economic Development Authority, a public body corporate
Labs, LLC, a limited
liability company under the laws of Minnes
described as follows:
(Need Legal)
Check here if all or part of the described real property is Registered (Torrens)
together with all hereditaments and appurtenances belonging thereto.
Check applicable box:
The Seller certifies that the Seller does not know of Grantor
any wells on the described real property.
A well disclosure certificate accompanies this Cottage Grove Economic
document or has been electronically filed. Development Authority
(If electronically filed, insert WDC number: [...].)
I am familiar with the property described in this By:
instrument and I certify that the status and number Myron Bailey
of wells on the described real property have not changed Its: President
since the last previously filed well disclosure
certificate. By:
Ryan Schroeder
Its: Executive Director
ECB-1035 Page 1 of 2
State of Minnesota, County of Washington
This instrument was acknowledged before me on ___________, by Myron Bailey as President and
by Ryan Schroeder as Executive Director of Cottage Grove Economic Development Authority.
(Stamp)
(signature of notarial officer)
Title (and Rank): Notary Public
My commission expires:
(month/day/year)
THIS INSTRUMENT WAS DRAFTED BY:
Korine L. Land, 262432 TAX STATEMENTS FOR THE REAL
LeVander, Gillen & Miller, P.A. PROPERTY DESCRIBED IN THIS
633 South Concord Street, Suite 400 INSTRUMENT SHOULD BE SENT TO:
South St. Paul, MN 55075
Leafline Labs, LLC
P: (651) 451-1831 | F: (651) 450-7384
Title Not Examined
EXHIBIT C
PRELIMINARY PLAN DOCUMENTS
The Minimum Improvements shall be constructed in accordance with the following preliminary
plan documents:
C-1
EXHIBIT D
FORM OF
CERTIFICATE OF COMPLETION
deed recorded in the office of the County Recorder in Washington County, Minnesota, as
Document No. __________, has conveyed to __________________, Inc., a Minnesota
Minnesota, to-wit:
(to be completed prior to execution)
and
WHEREAS, said deed was executed pursuant to that certain Contract for Private
Development by and between the Grantor and the Grantee dated the ____ day of _______, 2014
and recorded in the office of the County Recorder in Washington County, Minnesota, as Document
No. _______, which Contract for Private Development contained certain covenants and
restrictions regarding completion of the Minimum Improvements; and
WHEREAS, said Grantee has performed said covenants and conditions in a manner
deemed sufficient by the Grantor to permit the execution and recording of this certification.
NOW, THEREFORE, this is to certify that all construction of the Minimum Improvements
specified to be done and made by the Grantee has been completed and the covenants and conditions
in the Contract for Private Development have been performed by the Grantee therein, and the
County Recorder in Washington County, Minnesota, is hereby authorized to accept for recording
and to record the filing of this instrument, to be a conclusive determination of the satisfactory
termination of the covenants and conditions relating to completion of the Minimum Improvements.
Dated: ______________, ____. COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By
Myron Bailey
Its President
By
Ryan Schroeder
Its Executive Director
STATE OF MINNESOTA )
D-1
) ss.
COUNTY OF _________ )
The foregoing instrument as acknowledged before me this _____ day of _________, 2014,
by Myron Bailey and Ryan Schroeder, the president and executive director, respectively, of the
Cottage Grove Economic Development Authority, a public body corporate and politic, on behalf
of the Economic Development Authority.
Notary Public
D-2
EXHIBIT E
PLAT
E-1