HomeMy WebLinkAbout2015-10-11 PACKET 04.02.C.
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, (referred
to hereinafter as “EDA”), and Glendenning Farms, L.P., a Minnesota limited partnership, and
WAG Farms, Inc., a Minnesota corporation, and Joan Glendenning Kennedy Family Limited
Partnership, a Minnesota Family Limited Partnership (collectively referred to hereinafter as the
“Seller”).
RECITALS
Recital No. 1.
Seller is the owner of approximately nine (specifically 9.084) acres of
unimproved real property which real property represents a portion of Outlot B, Glengrove
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Industrial Park 3 Addition, located in Cottage Grove, Washington County, Minnesota legally
described on Exhibit A and depicted as Parcel 1 on Exhibit B, attached hereto and incorporated
herein by reference (the “Property”).
Recital No. 2.
EDA desires to purchase the Property from Seller, and Seller desires to
sell the same to EDA, all on the terms and conditions of this Agreement.
Recital No. 3.
EDA desires a Right of First Offer from Seller and Seller desires to grant
EDA a Right of First Offer on property adjacent to Property legally described on Exhibit C,
attached hereto and incorporated herein and depicted as Parcel 2 on Exhibit B.
NOW, THEREFORE,
EDA and Seller agree as follows:
Sale
1. .
Sale
1.1. . Subject to the terms and provisions of this Agreement, Seller shall
sell to EDA, and EDA shall purchase from Seller, the Property.
Purchase Price
1.2. . The purchase price to be paid by EDA to Seller for the
Property shall be One Dollar and 75/100 ($1.75) multiplied by Three Hundred Ninety-Five
Thousand Seven Hundred Four (395,704) square feet, as determined by the Survey (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 of Six Hundred Ninety-Two Thousand Four Hundred
Eighty-Two and No/100 Dollars ($692,482.00) shall be paid 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. The
Closing will occur at DCA Title, 7373 147th Street West, Apple Valley, MN 55124
(“Title”), unless otherwise agreed to by the parties.
Available Surveys, Tests, and Reports.
2. Within ten (10) days of the Effective
Date, Seller shall cause to be delivered to EDA, (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.
EDA’s Investigations.
3. For a period up to sixty calendar (60) days following the
Effective Date, Seller shall allow EDA and EDA’s agents or assigns access to the Property without
charge and at all times for the purpose of EDA’s investigation and testing of the Property, including
surveying and testing of soil and groundwater (“EDA’s Investigations”); provided, however, EDA
shall not perform any invasive testing unless (a) Seller gives its prior written approval of EDA’s
consultant that will perform the testing, which approval shall not be unreasonably withheld,
conditioned or delayed, and (b) EDA gives Seller reasonable prior notice of such testing. Seller
shall have the right to accompany EDA during any of EDA’s Investigations of the Property. EDA
shall provide to Seller copies of all third-party, non-confidential written test results and reports
conducted as part of EDA’s Investigations. EDA agrees to pay all of the costs and expenses
associated with EDA’s Investigations, to cause to be released any lien on the Property arising as a
result of EDA’s Investigations and to repair and restore, at EDA’s expense, any damage to the
Property caused by EDA’s Investigations. EDA shall indemnify and hold Seller and the Property
harmless from all costs and liabilities, including, but not limited to, reasonable attorneys’ fees,
arising from EDA’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 EDA notice of such condemnation, taking or damage. After
receipt of notice of such condemnation, taking or damage (from Seller or otherwise), EDA shall
have the option (to be exercised in writing within thirty (30) days) either (a) to require Seller to (i)
convey the Property at Closing (as defined in Section 6) to EDA 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 EDA 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 EDA 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 (b) to terminate
this Agreement by giving notice of such termination to Seller, whereupon this Agreement shall be
terminated 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
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the condemnation proceedings without EDA’s prior written consent, which consent shall not be
unreasonably withheld.
Contingencies
5. .
EDA’s Contingencies
5.1. .
A.Unless waived by EDA in writing, EDA’s obligation to proceed to
Closing shall be subject to (a) performance by Seller of its obligations hereunder,
(b) the continued accuracy of Seller’s representations and warranties provided in
Section 9.1, and (c) EDA’s satisfaction, in EDA’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,
EDA shall have determined, in its sole discretion, that it is satisfied with
(a) the results of and matters disclosed by EDA’s Investigations, surveys,
soil tests, engineering inspections, hazardous substance and environmental
reviews of the Property and (b) all other inspections and due diligence
regarding the Property, including any Due Diligence Materials.
(2)On or before the Contingency Date (defined below), EDA
shall have determined the acceptability of the Property for use as an office,
warehouse and greenhouse facility and uses related 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 EDA.
(3)On or before sixty (60) days following the Effective Date,
EDA shall have received from Title an irrevocable commitment to issue a
title insurance policy for the Property in a form and substance satisfactory
to EDA in EDA’s sole discretion, not disclosing any encumbrance not
acceptable to EDA in EDA’s sole discretion (the “Approved
Commitment”).
(4)On or before the Closing Date, EDA 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 EDA
in EDA’s sole discretion.
(5)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.
(6)On or before sixty (60) days following the Effective Date,
EDA shall review and approve the books and records in Seller’s possession,
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if any, including site plans, surveys, engineering or environmental reports
associated with the Property.
(7)On or before sixty (60) days following the Effective Date,
EDA shall review and approve the ALTA Survey of the Property.
(8)On or before sixty (60) days following the Effective Date,
EDA shall review and approve the Phase I Environmental Review of the
Property.
(9)On or before ninety (90) days following the Effective Date,
the EDA shall successfully negotiate a Development Agreement with
Gardenworld, (hereinafter referred to as the “Developer”) for the Property
for the Proposed Use.
(10)On or before the Closing Date, Seller, at no cost to City shall
dedicate property legally described on Exhibit D, attached hereto and
incorporated herein and depicted as Parcel 3 on Exhibit B for a stormwater
pond, which shall be memorialized in an agreement with the EDA and
recorded against the Property.
The foregoing contingencies are for EDA’s sole and exclusive benefit and
one (1) or more may be waived in writing by EDA in its sole discretion. Seller
shall reasonably cooperate with EDA’s efforts to satisfy such contingencies, at no
out of pocket cost to Seller or assumption of any obligation or liability by EDA.
EDA shall bear all cost and expense of satisfying EDA’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 EDA’s option, by written notice
from EDA to Seller. Such written notice must be given on or before the applicable
date, or EDA’s right to terminate this Agreement pursuant to this Section shall be
waived. Upon termination, neither party shall have any further rights or
obligations against the other regarding this Agreement or the Property, except for
such obligations as survive termination of this Agreement.
B.If EDA 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.
C.As used in this Agreement, the “Contingency Date” shall mean the
st
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:
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A.EDA 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 EDA contained in this
Agreement shall be accurate as of the Closing Date.
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 earlier than ____________________ Seller agrees to deliver legal and actual possession
of the Property to EDA on the Closing Date.
Seller’s Closing Documents and Deliveries
6.1 . On the Closing Date, Seller
shall execute and/or deliver, as applicable, to EDA the following:
Warranty Deed
A.. A warranty deed conveying title to the Property
to EDA, 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 EDA and to evidence that Seller (a)
has satisfied all monetary indebtedness with respect thereto, (b) has 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, (c) has 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, (d) has provided such other documents as are reasonably
determined by Title to be necessary to issue policies of title insurance to EDA with
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respect to the Property with the so-called “standard exceptions” deleted (excluding
the survey exception), and (e) has duly authorized the transactions contemplated
hereby.
Stormwater Pond Agreement
F.. A stormwater pond agreement
executed by Seller.
EDA Closing Documents and Deliveries
6.2. . On the Closing Date, EDA shall
execute and/or deliver, as applicable, to Seller the following:
Payment of Purchase Price
A.. The Purchase Price, in accordance
with the terms of Section 1.2.
Settlement Statement
B.. A settlement statement with respect to this
transaction.
FIRPTA Affidavit
C.. An affidavit of EDA certifying that EDA 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 EDA has duly authorized the transactions
contemplated hereby and evidence the authority of EDA to enter into and perform
this Agreement and the documents and instruments required to be executed and
delivered by EDA pursuant to this Agreement, or may be required of EDA under
applicable law, including any purchaser’s affidavits or revenue or tax certificates
or statements.
Prorations
7. . Seller and EDA agree to the following prorations and allocation of
costs regarding this Agreement:
Title Evidence, Survey and Closing Fee
7.1 . EDA shall pay all costs of the
Commitment with respect to the Property. EDA shall pay all cost of the Survey. EDA shall
pay all premiums for any title insurance policy it desires with respect to the Property. EDA
and Seller shall each pay one half (1/2) of any reasonable closing fee or charge imposed by
Title.
Transfer Taxes.
7.2 EDA shall pay all state deed tax regarding the Deed.
Recording Costs
7.3 . EDA will pay the cost of recording all documents
necessary to place record title to the Property in Seller. EDA will pay all recording costs
with respect to the recording of the Deed and for the recording of the mortgage, if any, and
any mortgage registration tax, if any.
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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 EDA 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 prior to the
Closing Date and EDA 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. EDA 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 EDA’s development of the Property.
Utilities
7.5 . All utility expenses, including water, fuel, gas, electricity, sewer
and other services furnished to or provided for the Property, if any, shall be prorated
between Seller and EDA on a daily basis as of the Closing Date, with Seller paying those
allocable to the period prior to the Closing Date and EDA being responsible for those
allocable to the Closing Date and subsequent thereto.
Phase I Environmental Review
7.6 . EDA shall pay all costs and expenses
related to the Phase I Environmental Review of the Property.
Attorneys’ Fees
7.7 . Seller and EDA shall each pay its own attorneys’ fees
incurred in connection with this transaction.
Survival
7.8 . The obligations set forth in this Section 7 survive the Closing.
Title Examination
8. . (i) Within twenty (20) days following the Effective Date, EDA
shall, at EDA’s expense, order 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) within thirty (30) days following the Effective Date,
EDA shall order, at EDA’s expense, 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”).
EDA’s Objections
8.1 . Within ten (10) days after EDA’s receipt of the last of
the Title Evidence, EDA 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 EDA within such time period or waived by
EDA 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,
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ordinances, and regulations. EDA 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
EDA’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, EDA shall
have the option to do any of the following:
A.Terminate this Agreement with respect to all of the Property.
B.Waive one or more of its objections and proceed to Closing.
If EDA so terminates this Agreement, neither Seller nor EDA shall be liable to the other
for any further obligations under this Agreement (except for such obligations as survive
termination of this Agreement).
Warranties and Representations
9. .
By Seller
9.1 . Seller warrants and represents the following to EDA, and
acknowledges that EDA 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 (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
Seller, or (b) 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,
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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 EDA
obtaining all the Approvals (as defined below).
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 (a) challenges the legality, validity or
enforceability of this Agreement, or (b) 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 (a)
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, (b)
any proposed or pending proceeding to change or redefine the zoning classification
of all or any part of the Property, (c) 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 (d) 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
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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 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 William G. Glendenning.
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 EDA 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 EDA has actual knowledge of Seller’s breach thereof prior to
Closing and EDA consummates the acquisition of the Property as provided herein.
EDA 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
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warranties or representations as to the habitability, merchantability, fitness for a particular
purpose, title, zoning, tax consequences, physical or environmental condition, utilities,
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 EDA, or any other matter or item regarding the Property. EDA 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. EDA is an
experienced purchaser of property such as the Property and EDA 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 EDA
9.2 . EDA 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.EDA 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 EDA 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 EDA,
(b) violate or contravene any provision of the articles of incorporation or bylaws of
EDA, or (c) 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 EDA 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, EDA shall have no liability with respect to any breach of a particular
representation or warranty if Seller shall fail to notify EDA 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 EDA 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 EDA 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 EDA 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
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agrees that EDA may dispose of any trash or personal property remaining on the Property
as of the Closing Date in EDA’s sole discretion and Seller agrees to pay for all costs and
expenses incurred by EDA with respect to the transport and/or disposal of the personal
property within ten (10) days after receipt of an invoice from EDA.
Further Assurances
10.3 . From and after the Closing Date, Seller agrees to
execute, acknowledge and deliver to EDA 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 EDA 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 EDA 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. EDA or Developer may elect to seek certain approvals in order
for EDA 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 EDA’s efforts to obtain the Approvals at or prior to Closing. Seller hereby
grants EDA and Developer the right to file and prosecute applications and petitions for
the Approvals and any special use permits and variances desired by EDA; 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 EDA 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, except
Collier’s International (“Broker”), and that there are no claims for brokerage commissions or
finders’ fees in connection with the execution of this Agreement except those of Broker. 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. Seller shall
be responsible for the payment of any commission at Closing to Broker in connection with the
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transaction contemplated by this Agreement. Moreover, Seller shall be responsible for the
payment of any commission to Broker on the Right of First Offer (See Section 23) at the time of
the closing on the Right of First Offer property.
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 EDA: Cottage Grove Economic Development Authority
12800 Ravine Parkway South
Cottage Grove MN 55016
Attn: Charlene Stevens, EDA Executive Director
with a copy to: Korine L. Land
LeVander, Gillen & Miller, P.A.
633 South Concord Street, Suite 400
South St. Paul, MN 55075
If to Seller: Joan Glendenning Kennedy Family Limited Partnership
7437 Queensland Lane North
Maple Grove, MN. 55311-3799
Attn: William S. Kennedy, Jr.
with copy to: Glendenning Farms, L.P. and
WAG Farms, Inc.
1765 Pinehurst Avenue
St. Paul, MN 55116
Attn: Gordon Glendenning
Default; Remedies
14. . If either Seller or EDA 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 EDA, Seller’s sole and exclusive remedies shall be (i)
termination of this Agreement as provided above and, upon any such termination, final liquidated
damages shall be forfeited to Seller. In the case of any default by Seller, EDA’s sole and exclusive
remedies shall be (i) specifically enforce this Agreement, or (ii) terminate this Agreement, in which
case final liquidated damages shall be returned to EDA. In no event shall EDA be entitled to record
a notice of Lis Pendens against the Property, unless EDA 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.
13
Cumulative Rights
15. . No right or remedy conferred or reserved to Seller or EDA is
intended to be exclusive of any other right or remedy herein or by law provided, but each 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
16. . 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
17. . 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.
EDA’s Assignment
18. . EDA may assign this Agreement without the prior written
consent of the Seller (but with written notice to Seller). No assignment shall relieve EDA from its
obligations under this Agreement.
Governing Law
19. . The provisions of this Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota.
Counterparts; Facsimiles
20. . 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
21. . Each party has been represented and advised by counsel
in the transaction contemplated hereby.
Time of the Essence
22. . Time is of the essence of this Agreement.
Right of First Offer for Parcel 2
23. . The parties hereto acknowledge, understand
and agree that Seller hereby grants the EDA a Right of First Offer on the adjacent 5 acre parcel
located directly south of the Property, legally described on Exhibit C, shown as Parcel 2 on Exhibit
B (hereinafter “Parcel 2”).
Seller’s Obligations.
23.1 Under the Right of First Offer, Seller is obligated to
notify the EDA of any offer to purchase Parcel 2 from a third-party that Seller is prepared
to accept, prior to accepting, and the EDA shall have ten (10) days after receipt thereof to
notify Seller whether or not the EDA desires to exercise its Right of First Offer and
purchase Parcel 2 on such terms and conditions proposed by the third party buyer. If the
EDA elects to purchase Parcel 2, the sale shall be consummated within one hundred eighty
days (180) days after the EDA has given such written notice.
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EDA’s Obligations.
23.2 Pursuant to a Purchase Agreement between the EDA
and Developer dated , 2015, upon receipt of the offer to purchase Parcel 2
from Seller under this Section 23, the EDA is obligated to immediately notify Developer
of the offer and provide Developer the option to purchase Parcel 2 from the EDA upon
completion of the sale by Seller. Developer shall have five (5) days to notify the EDA
whether or not Developer desires to purchase Parcel 2 from EDA on such terms and
conditions proposed by the EDA.
In the event that Developer elects not to purchase Parcel 2 from the EDA, Developer will
execute a cancellation of its option to purchase Parcel 2, terminating any interest Developer
may have in Parcel 2 pursuant to its Purchase Agreement or otherwise. The EDA may still
elect to purchase Parcel 2 on such terms and conditions proposed by the Seller.
If, as a result of the process set forth above, the EDA has not elected to purchase Parcel 2,
then Seller shall have the right to sell Parcel 2 to another party provided, however, the sale
to the other party must be on substantially similar terms and conditions as stated in the
offer and the sale to the other party must be consummated within one hundred eighty (180)
days after the written offer to the EDA by Seller. If a sale to the other party is not so
consummated upon such terms and within such time, then Seller must again follow the
provisions of this Section 23 in order to have the right to sell Parcel 2 to another party.
This Section 23 shall survive Closing.
\[Remainder of page intentionally left blank\]
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IN AGREEMENT
, the parties hereto have hereunto set their hands as of the date hereinbefore
first written.
\[Signature page to Purchase Agreement by EDA\]
EDA:
COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By ________________________________
Myron Bailey
Its President
By ________________________________
Charlene R. Stevens
Its Executive Director
16
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Real property located in the County of Washington, State of Minnesota, legally described
as follows:
PARCEL 1
That part of Outlot B, GLENGROVE INDUSTRIAL PARK 4TH ADDITION, according to the
recorded plat thereof, Washington County, Minnesota described as follows:
Commencing at the northwest corner of Outlot A, said GLENGROVE INDUSTRIAL
PARK 4TH ADDITION; thence on an assumed bearing of South 89 degrees 48 minutes
39 seconds West along the north line of said Outlot B, a distance of 434.73 feet to the point
of beginning of the land to be described; thence South 00 degrees 07 minutes 51 seconds,
a distance of 380.01 feet; thence South 89 degrees 48 minutes 39 seconds West, a distance
of 1085.02 feet to the west line of said Outlot B; thence North 00 degrees 07 minutes 30
seconds East along said west line, a distance of 101.54 feet; thence 438.29 feet
northeasterly along a tangential curve, concave to the southeast, having a radius of 280.00
feet and a central angle of 89 degrees 41 minutes 09 seconds; thence North 89 degrees 48
minutes 39 seconds along said north line, a distance of 806.59 feet to the point of beginning.
A-1
EXHIBIT B
DEPICTION OF THE PROPERTY
B-1
EXHIBIT C
LEGAL DESCRIPTION OF RIGHT OF FIRST OFFER PROPERTY
Real property located in the County of Washington, State of Minnesota, legally described
as follows:
PARCEL 2
That part of Outlot B, GLENGROVE INDUSTRIAL PARK 4TH ADDITION, according to the
recorded plat thereof, Washington County, Minnesota described as follows:
Commencing at the northwest corner of Outlot A, said GLENGROVE INDUSTRIAL
TH
PARK 4 ADDITION; thence on an assumed bearing of South 89 degrees 48 minutes 39
seconds West along the north line of said Outlot B, a distance of 434.73 feet; thence South
00 degrees 07 minutes 51 seconds, a distance of 380.01 feet to the point of beginning of
the land to be described; thence South 89 degrees 48 minutes 39 seconds West, a distance
of 1085.02 feet to the west line of said Outlot B; thence South 00 degrees 07 minutes 30
seconds West along said west line, a distance of 200.00 feet; thence North 89 degrees 48
minutes 39 seconds East, a distance of 1085.00 feet; thence North 00 degrees 07 minutes
51 seconds East, a distance of 200.00 feet to the point of beginning.
C-1
EXHIBIT D
LEGAL DESCRIPTION OF STORMWATER POND PROPERTY
Real property located in the County of Washington, State of Minnesota, legally described
as follows:
PARCEL 3
That part of Outlot B, GLENGROVE INDUSTRIAL PARK 4TH ADDITION, according to the
recorded plat thereof, Washington County, Minnesota described as follows:
Beginning at the northwest corner of Outlot A, said GLENGROVE INDUSTRIAL PARK
4TH ADDITION; thence on an assumed bearing of South 89 degrees 48 minutes 39
seconds West along the north line of said Outlot B, a distance of 434.73 feet; thence South
00 degrees 07 minutes 51 seconds, a distance of 380.01 feet; thence North 89 degrees 48
minutes 39 seconds East, a distance of 434.73 feet to the west line of Lot 1, Block 1, said
GLENGROVE INDUSTRIAL PARK 4TH ADDITION; thence North 00 degrees 07
minutes 51 seconds East along said west line and the west line of said Outlot A, a distance
of 380.01 feet to the point of beginning.
D-1