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HomeMy WebLinkAbout2015-10-06 PACKET 04.01.B. PURCHASE AGREEMENT THIS PURCHASE AGREEMENT (this “Agreement”) is entered into as of ___________ ___, 2015 (the “Effective Date”), by and between the Cottage Grove Economic Development Authority, a public body corporate and politic under the laws of Minnesota (“Buyer”), and Independent School District No. 833, a Minnesota public corporation (“Seller”). RECITALS A. Seller is the owner of approximately 30,140 square feet of unimproved real property, located in Cottage Grove, Washington County, Minnesota legally described on Exhibit A and depicted in Exhibit B attached hereto and incorporated herein by reference (the “Property”). B. Buyer desires to purchase the Property from Seller, and Seller desires to sell the same to Buyer, all on the terms and conditions of this Agreement. NOW, THEREFORE, Buyer and Seller agree as follows: Sale 1.. Sale 1.1. Subject to the terms and provisions of this Agreement, Seller shall sell to Buyer, and Buyer shall purchase from Seller, the Property. Purchase Price 1.2. The purchase price to be paid by Buyer to Seller for the Property shall be Six Dollars and 25/100 ($6.25) per square foot multiplied by actual total number of square feet for the Property , for an estimated value of One Hundred Eighty-eight Thousand, Three Hundred Seventy-Five Dollars ($188,375) (the “Purchase Price”). There shall be no setoff to the Purchase Price for a loss of square footage of the Property caused by wetland dedication, easement or roadway dedication or the like which may cause a portion of the Property to become unusable for the Proposed Use as herein defined. The Purchase Price shall be payable on the Closing Date, as defined in Section 6, subject to those adjustments, prorations and credits described in this Agreement, in certified funds or by wire transfer pursuant to instructions from Seller. Available Surveys, Tests, and Reports. 2. Within ten (10) days of the Effective Date, Seller shall cause to be delivered to Buyer, (a) copies of any surveys, soil tests and environmental reports previously conducted on the Property and in the possession of Seller, and (b) copies of existing title work for the Property and in the possession of Seller (the “Due Diligence Materials”). Seller makes no representations or warranties regarding the accuracy of the Due Diligence Materials. Buyer’s Investigations. 3. For a period up to sixty calendar (60) days following the Effective 1 Date, Seller shall allow Buyer and Buyer’s agents access to the Property without charge and at all times for the purpose of Buyer’s investigation and testing of the Property, including surveying and testing of soil and groundwater (“Buyer’s Investigations”); provided, however, Buyer shall not perform any invasive testing unless (a) Seller gives its prior approval of Buyer’s consultant that will perform the testing, which approval shall not be unreasonably withheld, conditioned or delayed, and (b) Buyer gives Seller reasonable prior notice of such testing. Seller shall have the right to accompany Buyer during any of Buyer’s Investigations of the Property. Buyer shall provide to Seller copies of all third- party, non-confidential written test results and reports conducted as part of Buyer’s Investigations. Buyer agrees to pay all of the costs and expenses associated with Buyer’s Investigations, to cause to be released any lien on the Property arising as a result of Buyer’s Investigations and to repair and restore, at Buyer’s expense, any damage to the Property caused by Buyer’s Investigations. Buyer shall indemnify and hold Seller and the Property harmless from all costs and liabilities, including, but not limited to, reasonable attorneys’ fees, arising from Buyer’s Investigations. The indemnification obligations provided herein shall survive the termination or cancellation of this Agreement. Insurance; Risk of Loss. 4. Seller assumes all risk of destruction, loss or damage to the Property prior to the Closing Date. If, prior to the Closing Date, all or any portion of the Property or access thereto is condemned, taken by eminent domain, or damaged by cause of any nature, Seller shall immediately give Buyer notice of such condemnation, taking or damage. After receipt of notice of such condemnation, taking or damage (from Seller or otherwise), Buyer shall have the option (to be exercised in writing within thirty (30) days) either: 4.1To require Seller to (i) convey the Property at Closing (as defined in Section 6) to Buyer in its damaged condition, upon and subject to all of the other terms and conditions of this Agreement without reduction of the Purchase Price, (ii) assign to Buyer at Closing all of Seller’s right, title and interest in and to any claims Seller may have to insurance proceeds, condemnation awards and/or any causes of action with respect to such condemnation or taking of or damage to the Property or access thereto, and (iii) pay to Buyer at Closing by certified or official bank check all payments made prior to the Closing Date under such insurance policies or by such condemning authorities, or 4.2To terminate this Agreement by giving notice of such termination to Seller, whereupon this Agreement shall be terminated, the Earnest Money shall be refunded to Buyer and thereafter neither party shall have any further obligations or liabilities to the other, except for such obligations as survive termination of this Agreement. If the right to terminate this Agreement is not exercised in writing within such thirty (30) day period, such right shall be deemed to have been waived. Seller shall not designate counsel, appear in, or otherwise act with respect to the condemnation proceedings without Buyer's prior written consent, which consent shall not be unreasonably withheld. 2 Contingencies 5.. Buyer’s Contingencies 5.1. (a)Unless waived by Buyer in writing, Buyer’s obligation to proceed to Closing shall be subject to performance by Seller of its obligations hereunder, the continued accuracy of Seller’s representations and warranties provided in Section 9.1, and Buyer’s satisfaction, in Buyer’s sole discretion, as to the contingencies described in this Section 5.1 within the time periods set forth below: (1)On or before ninety (90) days following the Effective Date, Buyer shall have determined, in its sole discretion, that it is satisfied with the results of and matters disclosed by Buyer’s Investigations, surveys, soil tests, engineering inspections, hazardous substance and environmental reviews of the Property and all other inspections and due diligence regarding the Property, including any Due Diligence Materials. (2)On or before the Contingency Date (defined below), Buyer shall have determined the acceptability of the Property for its intended use and incidental uses thereto (collectively, the “Proposed Use”). All costs and expenses related to applying for and obtaining any governmental permits and approvals for the Property for the Proposed Use shall be the responsibility of the Buyer. (3)On or before the Contingency Date, Buyer shall have obtained all appropriate approvals and permits necessary for the Proposed Use on the Property, which approvals may include, without limitation, platting or replatting, zoning approvals and/or rezoning of the Property, conditional use permits, access permits, signage permits, building permits, required licenses, site plan approvals and architectural approvals. All costs and expenses related to the preparation of any documentation necessary to create any plans, specifications or the like shall be the responsibility of the Buyer. (4)On or before the Contingency Date, and without limitation of the terms of Section 5.1(a)(3), Buyer shall be satisfied that it may develop the Property in accordance with a site plan, architectural plan, building plan, grading and drainage plan and other plans and specifications satisfactory to Buyer in its sole discretion. (5)On or before sixty (60) days following the Effective Date, Buyer shall have received from Title an irrevocable commitment to issue a title insurance policy for the Property in a form and substance satisfactory to Buyer in Buyer’s sole discretion, not disclosing any 3 encumbrance not acceptable to Buyer in Buyer’s sole discretion (the “Approved Commitment”). (6)On or before the Closing Date, Buyer shall have received from Title an irrevocable commitment to issue a title insurance policy for the Property in the form of the Approved Commitment, subject only to such changes in title as are Permitted Encumbrances or as are acceptable to Buyer in Buyer’s sole discretion. (7)On or before the Closing Date, Seller shall have obtained releases of the Property from any and all mortgages or other monetary liens affecting any of the Property. (8)On or before sixty (60) days following the Effective Date, Buyer shall review and approve the books and records in Seller’s possession, if any, including site plans, surveys, engineering or environmental reports associated with the Property. (9)On or before sixty (60) days following the Effective Date, Buyer shall review and approve the ALTA Survey of the Property. (10)On or before sixty (60) days following the Effective Date, Buyer shall review and approve a Phase I Environmental Review of the Property. (11)On or before the Closing Date, Hy-Vee, Inc. acquires property located at 7300 East Point Douglas Road South, Cottage Grove, Minnesota (“Grove-Rainbow Property”). (12)On or before the Closing Date, Buyer shall successfully negotiate a development agreement with Hy-Vee, Inc. for the Grove-Rainbow Property and the Property for Buyer’s Proposed Use. (13)On or before the Closing date, Buyer shall acquire property located at 7210 East Point Douglas Road South, Cottage Grove, Minnesota (“Home Depot Property”). (14)On or before the Closing date, Buyer enters into a purchase agreement to sell Home Depot Property and all contingencies included in the purchase agreement have been satisfied or waived. (15)On or before the Closing Date, Seller shall remove the exterior storage area on the Property. The foregoing contingencies are for Buyer’s sole and exclusive benefit and one (1) or more may be waived in writing by Buyer in its sole discretion. Seller shall 4 reasonably cooperate with Buyer’s efforts to satisfy such contingencies, at no out of pocket cost to Seller or assumption of any obligation or liability by Buyer. Buyer shall bear all cost and expense of satisfying Buyer’s contingencies. If any of the foregoing contingencies have not been satisfied on or before the applicable date, then this Agreement may be terminated, at Buyer’s option, by written notice from Buyer to Seller. Such written notice must be given on or before the applicable date, or Buyer’s right to terminate this Agreement pursuant to this Section shall be waived. If Buyer terminates this Agreement pursuant to this Section, the Earnest Money shall immediately be refunded to Buyer. Upon termination, neither party shall have any further rights nor obligations against the other regarding this Agreement or the Property, except for such obligations as survive termination of this Agreement. (b)If Buyer elects not to exercise any of the contingencies set out herein, such election may not be construed as limiting any representations or obligations of Seller set out in this Agreement, including without limitation any indemnity or representations with respect to environmental matters. st (c)As used in this Agreement, the “Contingency Date” shall mean the first (1) business day occurring one hundred twenty (120) days from the Effective Date. Seller’s Contingencies 5.2. Seller’s obligation to proceed to Closing shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions: (a)Buyer shall have performed and satisfied all agreements, covenants and conditions required pursuant to this Agreement to be performed and satisfied by or prior to the Closing Date. (b)All representations and warranties of Buyer contained in this Agreement shall be accurate as of the Closing Date. (c)Buyer agrees to undertake and complete the following improvements to Seller’s existing property, located at 7362 East Point Douglas Road South, Cottage Grove, Minnesota, which are generally depicted on Exhibit C, attached hereto: i.Relocation of Seller’s northern driveway to Seller’s satisfaction; ii.Reconstruction of parking lot, curbing and screening in the northeast corner of the lot to Seller’s satisfaction; iii.Relocation of fiber optic line along Seller’s northern property line to a location approved by Seller. 5 Seller may in its sole discretion waive any of the conditions precedents set out in this Section. Closing 6.. The closing of the purchase and sale contemplated by this Agreement (the st “Closing”) shall occur on the first (1) business day occurring thirty (30) days after the Contingency Date (the “Closing Date”). Notwithstanding the foregoing sentence, the Closing shall occur no later than May 1, 2016. Seller agrees to deliver legal and actual possession of the Property to Buyer on the Closing Date. Closing shall occur at DCA Title, th 7373 147 Street West, Apple Valley, MN 55124 (“Title”). Seller’s Closing Documents and Deliveries 6.1. On the Closing Date, Seller shall execute and/or deliver, as applicable, to Buyer the following: Warranty Deed (a). A warranty deed conveying title to the Property to Buyer, free and clear of all encumbrances, except the Permitted Encumbrances (the “Deed”). FIRPTA Affidavit (b). An affidavit of Seller certifying that Seller is not a “foreign person,” “foreign partnership,” foreign trust,” “foreign estate” or “disregarded entity” as those terms are defined in Section 1445 of the Internal Revenue Code of 1986, as amended. Seller’s Affidavit (c). A standard owner’s affidavit (ALTA form) from Seller which may be reasonably required by Title to issue an owner’s policy of title insurance with respect to the Property with the so-called “standard exceptions” deleted (excluding the survey exception). Settlement Statement (d). A settlement statement with respect to this transaction. General Deliveries (e). All other documents reasonably determined by Title to be necessary to transfer the Property to Buyer and to evidence that Seller has: i.Satisfied all monetary indebtedness with respect thereto, ii.Obtained such termination statements or releases from such secured creditors as may be necessary to ensure that the Property is subject to no monetary liens, iii.Obtained all consents from third parties necessary to effect Seller’s performance of the terms of this Agreement, including, without limitation, the consents of all parties holding an interest in the Property, iv.Provided such other documents as are reasonably determined by Title to be necessary to issue policies of title insurance to Buyer with respect to the Property with the so-called “standard exceptions” deleted (excluding the survey exception), and 6 v.Duly authorized the transactions contemplated hereby. Buyer Closing Documents and Deliveries 6.2. On the Closing Date, Buyer shall execute and/or deliver, as applicable, to Seller the following: Payment of Purchase Price (a). The Purchase Price shall be payable on the Closing Date if bond referendum does not pass on November 3, 2015 and th the City does not order public improvements on 65 Street. However, if the bond referendum passes on November 3, 2015 and the City has ordered or th will order the public improvements on 65 Street, then the Purchase Price th will be issued as a credit to any special assessments for the 65 Street public improvement project. Settlement Statement (b). A settlement statement with respect to this transaction. FIRPTA Affidavit (c). An affidavit of Buyer certifying that Buyer is not a “foreign person,” “foreign partnership,” foreign trust,” “foreign estate” or “disregarded entity” as those terms are defined in Section 1445 of the Internal Revenue Code of 1986, as amended. General Deliveries (d). All other documents reasonably determined by Title to be necessary to evidence that Buyer has duly authorized the transactions contemplated hereby and evidence the authority of Buyer to enter into and perform this Agreement and the documents and instruments required to be executed and delivered by Buyer pursuant to this Agreement, or may be required of Buyer under applicable law, including any purchaser’s affidavits or revenue or tax certificates or statements. Prorations 7.. Seller and Buyer agree to the following prorations and allocation of costs regarding this Agreement: Title Evidence, Survey and Closing Fee 7.1. Buyer shall pay all premiums for any title insurance policy it desires with respect to the Property. Buyer and Seller shall each pay one half (1/2) of any reasonable closing fee or charge imposed by Title. Transfer Taxes. 7.2 Seller shall pay all state deed tax regarding the Deed. Recording Costs 7.3. Seller will pay the cost of recording all documents necessary to place record title to the Property in Seller. Buyer will pay all recording costs with respect to the recording of the Deed. Real Estate Taxes and Special Assessments 7.4. General real estate taxes applicable to any of the Property due and payable in the year of Closing shall be prorated between Seller and Buyer on a daily basis as of 12:00 a.m. CT on the Closing Date based upon a calendar fiscal year, with Seller paying those allocable to the period 7 prior to the Closing Date and Buyer being responsible for those allocable to the Closing Date and subsequent thereto. Seller shall pay in full all special assessments (and charges in the nature of or in lieu of such assessments) levied, pending, postponed or deferred with respect to any of the Property as of the Closing Date. Buyer shall be responsible for any special assessments that are levied or become pending against the Property after the Closing Date, including, without limitation, those related to Buyer’s development of the Property. Phase I Environmental Review 7.5. Buyer shall pay all costs and expenses related to the Phase I Environmental Review of the Property. Attorneys’ Fees 7.6. Seller and Buyer shall each pay its own attorneys’ fees incurred in connection with this transaction. Survival 7.7. The obligations set forth in this Section 7 survive the Closing. Title Examination 8.. Buyer shall obtain a commitment for an owner’s title insurance policy (ALTA Form 2006) issued by Title for the Property, and copies of all encumbrances described in the commitment (the “Commitment”); and (ii) an ALTA-certified survey bearing the legal description of the Property, and showing the area, dimensions and location of the Property (the “Survey” and, together with the Commitment, the “Title Evidence”). Buyer’s Objections 8.1. Within ten (10) days after Buyer’s receipt of the last of the Title Evidence, Buyer may make written objections (“Objections”) to the form or content of the Title Evidence. The Objections may include without limitation, any easements, restrictions or other matters which may interfere with the Proposed Use of the Property or matters which may be revealed by the Survey. Any matters reflected on the Title Evidence which are not objected to by Buyer within such time period or waived by Buyer in accordance with Section 8.2(b) shall be deemed to be permitted encumbrances (“Permitted Encumbrances”). Notwithstanding the foregoing, the following items shall be deemed Permitted Encumbrances: (a)Covenants, conditions, restrictions (without effective forfeiture provisions) and declarations of record, if any; (b)Reservation of minerals or mineral rights by the State of Minnesota, if any; (c)Utility and drainage easements which do not interfere with the Proposed Use; and (d)Applicable laws, ordinances, and regulations. Buyer shall have the renewed right to object to the Title Evidence as the same may be revised or endorsed from time to time. Seller’s Cure 8.2. Seller shall be allowed twenty (20) days after the receipt of Buyer’s Objections to cure the same but shall have no obligation to do so. If such cure is not completed within said period, or if Seller elects not to cure such Objections, Buyer shall have the option to do any of the following: 8 (a)Terminate this Agreement with respect to all of the Property. (b)Waive one or more of its objections and proceed to Closing. If Buyer so terminates this Agreement, neither Seller nor Buyer shall be liable to the other for any further obligations under this Agreement (except for such obligations as survive termination of this Agreement) and the Earnest Money shall be refunded to Buyer. Warranties and Representations 9.. By Seller 9.1. Seller warrants and represents the following to Buyer, and acknowledges that Buyer has relied on such representations and warranties in agreeing to enter into this Agreement: (a)This Agreement has been duly executed and delivered and constitutes the legal, valid and binding obligation of Seller enforceable in accordance with its terms. Seller has been duly formed under the laws of the State of Minnesota and is in good standing under the laws of the jurisdiction in which the Property is located, is duly qualified to transact business in the jurisdiction in which the Property is located, and has the requisite power and authority to enter into and perform this Agreement and the documents and instruments required to be executed and delivered by Seller pursuant hereto. This Agreement and the documents and instruments required to be executed and delivered by Seller pursuant hereto have each been duly authorized by all necessary action on the part of Seller and such execution, delivery and performance does and will not conflict with or result in a violation of Seller’s organizational agreement or any judgment or order. (b)The execution, delivery and performance by Seller of this Agreement will not violate any provision of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award of any court, governmental agency or arbitrator presently in effect having applicability to Seller, or result in a breach of or constitute a default under any indenture, loan or credit agreement or any other agreement, lease or instrument to which Seller is a party or by which it or any of its properties may be bound. (c)To Seller’s knowledge, except as contemplated herein, no order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by, any governmental or public body or authority, or any other entity, is required on the part of Seller to authorize, or is required in connection with, the execution, delivery and performance of, or the legality, validity, binding effect or enforceability of, this Agreement, except for Buyer obtaining all the Approvals (as defined below). 9 (d)To Seller’s knowledge, there are no actions, suits or proceedings pending or threatened against or affecting Seller or any of its properties, before any court or arbitrator, or any governmental department, board, agency or other instrumentality which in any of the foregoing challenges the legality, validity or enforceability of this Agreement, or if determined adversely to Seller, would have a material adverse effect on the ability of Seller to perform its obligations under this Agreement. (e)Seller has not received written notice, and has no knowledge, of (i) any pending or contemplated annexation or condemnation proceedings, or purchase in lieu of the same, affecting or which may affect all or any part of the Property, (ii) any proposed or pending proceeding to change or redefine the zoning classification of all or any part of the Property, (iii) any proposed changes in any road patterns or grades which would adversely and materially affect access to the roads providing a means of ingress or egress to or from all or any part of the Property, or (iv) any uncured violation of any legal requirement, restriction, condition, covenant or agreement affecting all or any part of the Property or the use, operation, maintenance or management of all or any part of the Property. (f)To Seller’s knowledge, there are no wells or sewage treatment systems located on any portion of the Property. To Seller’s knowledge, there has been no methamphetamine production on or about any portion of the Property. To Seller’s knowledge, the sewage generated by the Property, if any, goes to a facility permitted by the Minnesota Pollution Control Agency and there is no “individual sewage treatment system” (as defined in Minnesota Statutes § 115.55, Subd. 1(g)) located on the Property. (g)Seller is not a “foreign person,” “foreign corporation,” “foreign trust,” “foreign estate” or “disregarded entity” as those terms are defined in Section 1445 of the Internal Revenue Code. (h)To Seller’s knowledge, except as may be disclosed as part of the Due Diligence Materials, (i) no condition exists on the Property that may support a claim or cause of action under any Environmental Law (as defined below) and there are no Hazardous Substances (as defined below) on the Property, (ii) there has been no release, spill, leak or other contamination or otherwise onto the Property, and (iii) there are no restrictions, clean ups or remediation plans regarding the Property. To Seller’s knowledge, except as may be disclosed as part of the Due Diligence Materials, there is no buried waste or debris on any portion of the Property, except for shredded automobile tire chips included in fill previously placed on the Property. “Environmental Law” shall mean (a) the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. § 9601-9657, as amended, or any similar state law or local ordinance, (b) the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq., (c) the 10 Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., (d) the Clean Air Act, 42 U.S.C. § 7401, et seq., (e) the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., (f) the Safe Drinking Water Act, 42 U.S.C. § 300(f) et seq., (g) any law or regulation governing aboveground or underground storage tanks, (h) any other federal, state, county, municipal, local or other statute, law, ordinance or regulation, including, without limitation, the Minnesota Environmental Response and Liability Act, Minn. Stat. § 115B.01, et seq., (i) all rules or regulations promulgated under any of the foregoing, and (j) any amendments of the foregoing. “Hazardous Substances” shall mean polychlorinated biphenyls, petroleum, including crude oil or any fraction thereof, petroleum products, heating oil, natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel, and shall include, without limitation, substances defined as “hazardous substances,” “toxic substances,” “hazardous waste,” “pollutants or contaminants” or similar substances under any Environmental Law. (i)There are no leases or tenancies with respect to the Property. There are no unrecorded agreements or other contracts of any nature or type relating to, affecting or serving the Property. (j)There will be no indebtedness attributable to the Property which will remain unpaid after the Closing Date. As used in this Agreement, the term “to Seller’s knowledge” shall mean and refer to only the current actual knowledge of the designated representative of Seller and shall not be construed to refer to the knowledge of any other partner, officer, manager, member, director, agent, authorized person, employee or representative of Seller, or any affiliate of Seller, or to impose upon such designated representative any duty to investigate the matter to which such actual knowledge or the absence thereof pertains, or to impose upon such designated representative any individual personal liability. As used herein, the term “designated representative” shall refer to _____________________________. The representations, warranties and other provisions of this Section 9.1 shall survive Closing; provided, however, Seller shall have no liability with respect to any breach of a particular representation or warranty if Buyer shall fail to notify Seller in writing of such breach within two (2) years after the Closing Date, and provided further that Seller shall have no liability with respect to a breach of the representations and warranties set forth in this Agreement if Buyer has actual knowledge of Seller’s breach thereof prior to Closing and Buyer consummates the acquisition of the Property as provided herein. Buyer acknowledges and agrees that, except as expressly specified in this Section 9 of this Agreement, Seller has not made, and Seller hereby specifically disclaims, any representation, warranty or covenant of any kind, oral or written, expressed or implied, or rising by operation of law, with respect to the Property, including but not limited to, any warranties or representations as to the habitability, merchantability, fitness for a particular purpose, title, zoning, tax consequences, physical or environmental condition, utilities, 11 valuation, governmental approvals, the compliance of the Property with governmental laws, the truth, accuracy or completeness of any information provided by or on behalf of Seller to Buyer, or any other matter or item regarding the Property. Buyer agrees to accept the Property and acknowledges that the sale of the Property as provided for herein is made by Seller on an “AS IS,” “WHERE IS,” and “WITH ALL FAULTS” basis. Buyer is an experienced purchaser of property such as the Property and Buyer has made or will make its own independent investigation of the Property. The limitations set forth in this paragraph shall survive the Closing and shall not merge in the deed. By Buyer 9.2. Buyer warrants and represents the following to Seller, and acknowledges that Seller has relied on such representations and warranties in agreeing to enter into this Agreement: (a)Buyer has all requisite authority to enter into this Agreement and to perform all of its obligations under this Agreement. (b)The execution, delivery and performance by Buyer of this Agreement will not (a) violate any provision of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award of any court, governmental agency or arbitrator presently in effect having applicability to Buyer, (ii) violate or contravene any provision of the articles of incorporation or bylaws of Buyer, or (iii) result in a breach of or constitute a default under any indenture, loan or credit agreement or any other agreement, lease or instrument to which Buyer is a party or by which it or any of its properties may be bound. The representations, warranties and other provisions of this Section 9.2 shall survive Closing; provided, however, Buyer shall have no liability with respect to any breach of a particular representation or warranty if Seller shall fail to notify Buyer in writing of such breach within two (2) years after the Closing Date. Additional Obligations of Seller 10.. Licenses and Permits 10.1. Seller shall transfer to Buyer all transferable rights, if any, in any permits or licenses held by Seller with respect to the Property. Seller shall execute all applicable transfer forms and applications to facilitate and effect any such transfer and to cooperate fully with Buyer in its efforts to obtain all of the necessary licenses and permits for the Proposed Use, at no out-of-pocket cost to Seller, or the assumption of any obligations or liabilities by Seller. Condition of Property at Closing 10.2. Prior to Closing, the Property shall be operated in the ordinary course consistent with previous practice. On the Closing Date, Seller shall deliver to Buyer exclusive vacant possession of the Property, free and clear of any personal property, surface waste and surface debris of any kind. On or before the Closing Date, Seller shall remove all trash and personal property from the Property. Seller agrees that Buyer may dispose of any trash or personal property 12 remaining on the Property as of the Closing Date in Buyer’s sole discretion and Seller agrees to pay for all costs and expenses incurred by Buyer with respect to the transport and/or disposal of the personal property within ten (10) days after receipt of an invoice from Buyer. Further Assurances 10.3. From and after the Closing Date, Seller agrees to execute, acknowledge and deliver to Buyer such other documents or instruments of transfer or conveyance as may be reasonably required to carry out its obligations pursuant to this Agreement. Non-Assumption of Contracts or Other Obligations 10.4. The parties understand and agree that Buyer is only acquiring certain of Seller’s real property assets and that this Agreement and any related agreements shall not be construed to be in any manner whatsoever an assumption by Buyer of any agreements, indebtedness, obligations or liabilities of Seller which are owing with respect to the operation of the Property prior to the Closing Date. Mortgages 10.5. On or before the Closing Date, Seller shall satisfy all mortgage and/or lien indebtedness with respect to all or any portion of the Property and shall obtain recordable releases of the Property from any and all such mortgages or other liens affecting all or any portion of the Property. Approvals 10.6. Buyer may elect to seek certain approvals in order for Buyer to develop the Property for the Proposed Use, including rezoning the Property or receipt of a conditional use permit (the “Approvals”). Seller, at no out-of-pocket cost to Seller, or the assumption of any obligations or liabilities by Seller, will reasonably cooperate with Buyer’s efforts to obtain the Approvals at or prior to Closing. Seller hereby grants Buyer the right to file and prosecute applications and petitions for the Approvals and any special use permits and variances desired by Buyer; provided, however, any special use permits or variances shall (a) be contingent on the occurrence of the Closing and shall not be binding upon Seller or the Property unless and until the Closing occurs, or (b) be approved in writing in advance by Seller. Seller, at no out-of-pocket cost to Seller, or the assumption of any obligations or liabilities by Seller, agrees to cooperate with Buyer in the filing and prosecution of such applications and petitions, including the filing of the same in Seller’s name, if required. Commissions 11.. Each party represents that all negotiations on its behalf relative to this Agreement and the transactions contemplated by this Agreement have been carried on directly between the parties, without the intervention of any party as broker, finder or otherwise and that there are no claims for brokerage commissions or finders’ fees in connection with the execution of this Agreement. Each party hereby indemnifies the other from and against all losses, damages, costs, expenses (including reasonable fees and expenses of attorneys), causes of action, suits or judgments of any nature arising out of any claim, demand or liability to or asserted by any broker, agent or finder, claiming to have acted on behalf of the indemnifying party in connection with this transaction. 13 Notice 12.. Any notice to be given by one party hereto shall be personally delivered (including messenger delivery) or be sent by registered or certified mail, or by a nationally recognized overnight courier which issues a receipt, in each case postage prepaid, to the other party at the addresses in this Section (or to such other address as may be designated by notice given pursuant to this Section), and shall be deemed given upon personal delivery, three (3) days after the date postmarked or one (1) business day after delivery to such overnight courier. If to Buyer: Cottage Grove EDA Attn: EDA Executive Director 12800 Ravine Parkway South Cottage Grove MN 55016 with a copy to: LeVander, Gillen & Miller, P.A. Attn: Korine L. Land 633 South Concord Street, Suite 400 South St. Paul, MN 55075 If to Seller: Independent School District No. 833 Attn: _________________________ 7362 East Point Douglas Road South Cottage Grove, MN 55016 with a copy to: ____________________________ ____________________________ ____________________________ ____________________________ Default; Remedies 13.. If either Seller or Buyer fails to perform any of its obligations under this Agreement in accordance with its terms, and such failing party does not cure such failure within thirty (30) days after written notice thereof from the other party (provided that no notice or cure period shall be required for obligations to be performed at Closing), then the other party shall have the right to terminate this Agreement by giving the failing party written notice of such election. In the case of any default by Buyer, Seller’s sole and exclusive remedies shall be (i) termination of this Agreement as provided above and, upon any such termination, the Earnest Money shall be forfeited to Seller as agreed and final liquidated damages. In the case of any default by Seller, Buyer’s sole and exclusive remedies shall be (i) specifically enforce this Agreement, or (ii) terminate this Agreement, in which case the Earnest Money shall be returned to Buyer as agreed and final liquidated damages. In no event shall Buyer be entitled to record a notice of Lis Pendens against the Property, unless Buyer is pursuing specific performance of this Agreement. In any action or proceeding to enforce this Agreement or any term hereof, the prevailing party shall be entitled to recover its reasonable costs and attorneys’ fees. Cumulative Rights 14.. No right or remedy conferred or reserved to Seller or Buyer is intended to be exclusive of any other right or remedy herein or by law provided, but each 14 shall be cumulative in and in addition to every other right or remedy existing at law, in equity or by statute, now or hereafter. Entire Agreement; Modification 15.. This written Agreement constitutes the complete agreement between the parties with respect to this transaction and supersedes any prior oral or written agreements between the parties regarding this transaction. There are no verbal agreements that change this Agreement and no waiver of any of its terms will be effective unless in writing executed by the parties. Binding Effect; Survival 16.. This Agreement binds and benefits the parties and their respective successors and assigns. All representations and warranties, and indemnification obligations of the parties hereto shall survive the Closing. Buyer’s Assignment 17.. Buyer may assign this Agreement without the prior written consent of the Seller (but with written notice to Seller). No assignment shall relieve Buyer from its obligations under this Agreement. Governing Law 18.. The provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. Counterparts; Facsimiles 19.. This Agreement may be executed in any number of counterparts, and all of the signatures to this Agreement taken together shall constitute one and the same agreement, and any of the parties hereto may execute such agreement by signing any such counterpart. Facsimile or “PDF” signatures on this Agreement shall be treated as originals until the actual original signatures are obtained. Represented by Counsel 20.. Each party has been represented and advised by counsel in the transaction contemplated hereby. Time of the Essence 21.. Time is of the essence of this Agreement. IN AGREEMENT, the parties hereto have hereunto set their hands as of the date hereinbefore first written. \[Remainder of page intentionally left blank\] 15 BUYER: COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY By: ____________________________ Myron Bailey Its President By: ____________________________ Charlene R. Stevens Its Executive Director 16 SELLER: INDEPENDENT SCHOOL DISTRICT NO. 833 By:____________________________ ____________________________ Its: _________________________ 17 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY 1 EXHIBIT B DEPICTION OF THE PROPERTY (ALTA Survey) 2 EXHIBIT C DEPICTION OF PARKING LOT IMPROVEMENTS 3