HomeMy WebLinkAbout07M Purchase Agreement with Renewal by Andersen PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "AgreemenY') is entered into as of
, 2018 (the "Effective Date'�, by and between the Cottage Grove Economic Development
Authority, a public body corparate and politic under the laws of Minnesota, ("EDA"), and Renewal
by Andersen LLC ("Renewal").
RECITALS
Recital No. 1. Glendenning Farms, L.P., WAG Farms, Inc. and Joan Glendenning
Kennedy Family Limited Partnership (collectively "Owner") are the owners of approximately
approximately 17.66 acres of unimproved real property which real property represents a portion
of Outlot B, Glengrove Industrial Park 6�' Addition, located in Cottage Grove, Washington
County, Minnesota depicted on Exhibit A as Parcels East and West(collectively,the "Property").
Recital No. 2. EDA desires to purchase the portion ofthe Property identified as Parcel
East and legally described on Exhibit B from Owner and sell the same to Renewal on the terms
and conditions of this Agreement.
Recital No. 3. EDA desires to obtain a Right of First Offer from Owner on the portion
ofthe Property identified as Parcel West and legally described on Exhibit C so that Renewal may
have an option to purchase Parcel West from EDA.
Recital No. 4. Renewal desires to purchase Parcel East from EDA and have an option
to buy Parcel West at some future date.
NOW, THEREFORE, Renewal and EDA agree as follows:
1. Sale.
1.1. Sale. Subjectto the terms and provisions ofthis Agreement, EDA shall sell
Parcel East to Renewal, and Renewal shall purchase same from EDA.
1.2. Purchase Price. The purchase price to be paid by Renewal to EDA for
Parcel East shall be Three Dollars and 00/100 ($3.00)multiplied by 401,168 square feet as
determined by the Survey (the "Purchase Price"). The Purchase Price of One Million Two
Hundred Three Thousand Five Hundred and Four 00/100s Dollars ($1,203,504.00) shall
be payable as follows: (a) Twenty-Five Thousand and No/100 Dollars ($25,000.00), as
earnest money, to be paid within three (3) business days following the Effective Date to
DCA Title, 7373 147th Street West, Apple Valley, MN 55124 ("Title"), to be held in
escrow by Title ("Earnest Money"); and (b) the balance of the Purchase Price 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 EDA.
2. Available Survevs. Tests, and Reports. Within ten (10) days of the Effective
Date, EDA shall cause to be delivered to Renewal, (a) copies of any surveys, soil tests,
environmental reports, and any other studies and/or site analyses previously conducted on the
Property and in the possession of EDA, and (b) copies of existing title work for the Property and
in the possession of EDA (the "Due Diligence Materials"). EDA makes no representations or
warranties regarding the accuracy of the Due Diligence Materials. If Buyer so requests, Seller
shall request the preparers of any such surveys, soil tests, environmental reports, and any other
studies and/or site analyses to re-issue or re-certify the same far the direct benefit of Buyer, at
Buyer's expense, so that Buyer may rely on such site analyses or surveys as if prepared for Buyer
in the first instance, but Seller makes no representation as to whether any such reissuance or
recertification will be available.
3. RenewaPs Investiaations. For a period up to the Closing Date following the
Effective Date, EDA shall allow Renewal and Renewal's agents access to the Property without
charge and at all times for the purpose of Renewal's investigation and testing of the Property,
including surveying and testing of soil and groundwater ("Renewal's Investigations"); provided,
however, Renewal shall not perform any invasive testing unless (a) EDA gives its prior written
approval of Renewal's consultant that will perform the testing, which approval shall not be
unreasonably withheld, conditioned or delayed, and (b) Renewal gives EDA reasonable prior
notice of such testing. EDA shall have the right to accompany Renewal during any of Renewal's
Investigations of the Property. Renewal shall provide to EDA copies of all third-party, non-
confidential written test results and reports conducted as part of Renewal's Investigations.
Renewal agrees to pay all of the costs and expenses associated with Renewal's Investigations, to
cause to be released any lien on the Property arising as a result of Renewal's Investigations and to
repair and restore, at Renewal's expense, any damage to the Property caused by Renewal's
Investigations. Renewal shall indemnify and hold EDA and the Property harmless from all costs
and liabilities, including, but not limited to, reasonable attorneys' fees, arising from Renewal's
Investigations. The indemnification obligations provided herein shall survive the termination or
cancellation of this Agreement. Within thirty (30) days from the Effective Date, EDA shall, at
EDA's expense, provide Renewal with a Phase I Environmental Review of the Property dated
within siaty(60) days ofthe Effective Date completed by a contractor selected by EDA, in EDA's
sole discretion.
4. Insurance; Risk of Loss. EDA assumes all risk of destruction, loss or damage to
the Property prior to the Closing Date. If, priar 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, EDA shall immediately give Renewal notice of such condemnation, taking or damage.
After receipt of notice of such condemnation,taking or damage(from EDA or otherwise), Renewal
shall have the option (to be exercised in writing within thirty(30) days) either(a)to require EDA
to (i)conveythe Property at Closing(as defined in Section 6)to Renewal 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 Renewal at Closing all of EDA's right, title and interest in and to
any claims EDA 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,
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and (iii)pay to Renewal at Closing by certified or official bank check all payments made priar 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 EDA,whereupon this Agreement
shall be terminated, the Earnest Money shall be refunded to Renewal 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. EDA shall
not designate counsel, appear in, or otherwise act with respect to the condemnation proceedings
without Renewal's prior written consent, which consent shall not be unreasonably withheld.
5. Contingencies.
5.1. RenewaPs Continaencies.
A. Unless waived by Renewal in writing, Renewal's obligation to
proceed to Closing shall be subject to (a) performance by EDA of its obligations
hereunder, (b) the continued accuracy of EDA's representations and warranties
provided in Section 9.1, and (c) Renewal's satisfaction, in Renewal's sole
discretion, as to the contingencies described in this Section 5.1 within the time
periods set forth below:
(1) On or before the Closing Date, Renewal shall have
determined, in its sole discretion, that it is satisfied with (a)the results of
and maYters disclosed by Renewal's Investigations, surveys, soil tests,
engineering inspections,hazardous substance and environmental reviews of
Parcel East and (b) all other inspections and due diligence regarding Parcel
East, including any Due Diligence Materials.
(2) On or before the Closing Date, Renewal shall have
determined the acceptability of Parcel East for its use (collectively, the
"Proposed Use'�. All costs and expenses related to applying for and
obtaining any governmental permits and approvals for Parcel East for the
Proposed Use shall be the responsibility of the Renewal, with the exception
ofthe re-plat.
(3) On or before the Closing Date, Renewal shall have received
from Title an irrevocable commitment to issue a title insurance policy for
Parcel East in a form and substance satisfactory to Renewal in Renewal's
sole discretion, not disclosing any encumbrance not acceptable to Renewal
in Renewal's sole discretion (the "Approved CommitmenY').
(4) On or before the Closing Date, EDA shall have obtained
releases of the Parcel East from any and all mortgages or other monetary
liens affecting any of the Property.
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(5) On or before the Closing Date, Renewal shall review and
approve the books and records in EDA's possession, if any, including site
plans, surveys, engineering or environmental reports associated with Parcel
East.
(6) On or before the Closing Date, Renewal shall secure
financingthat is satisfactoryto Renewal in Renewal's sole discretion far the
purpose of acquiring and constructing the Proposed Use.
(7) On or before the Closing Date, Renewal shall review and
approve the ALTA Survey of the Parcel East.
(8) On or before the Closing Date, Renewal shall review and
approve the Phase I Environmental Review of Parcel East.
(9) On or before the Closing Date, Renewal shall obtain
approval of the transaction by Renewal by Andersen's Board of Directors.
(10) On or before the Closing Date, Renewal shall approve the
forms of all closing documents, including the agreement with the City of
Cottage Grove containingthe covenants in Section 24 hereof.
The foregoing contingencies are for Renewal's sole and exclusive benefit
and one (1) or more may be waived in writing by Renewal in its sole discretion.
EDA shall reasonably cooperate with Renewal's efforts to satisfy such
contingencies, at no out of pocket cost to EDA or assumption of any obligation or
liability by Renewal. Renewal shall bear all cost and expense of satisfying
Renewal'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 Renewal's option, by written notice from Renewal to EDA. Such written notice
must be given on or before the applicable date, or Renewal's right to terminate this
Agreement pursuant to this Section shall be waived. If Renewal terminates this
Agreement pursuant to this Section, the Earnest Money shall immediately be
refunded to Renewal. 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 Renewal elects not to exercise any of the contingencies set out
herein, such election may not be construed as limiting any representations or
obligations of EDA set out in this Agreement, including without limitation any
indemnity or representations with respect to environmental matters.
5.2 EDA's Continaencies. EDA'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 acquired Parcel East from Owner, and the EDA
agrees to use its best efforts to effectuate such transaction.
B. Renewal 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.
C. All representations and warranties of Renewal contained in this
Agreement shall be accurate as of the Closing Date.
EDA may in its sole discretion waive any of the conditions precedents set
out in this Section.
6. Closing. The closing ofthe purchase and sale contemplated by this Agreement(the
"Closing") shall occur on or before July 31, 2018 (the "Closing Date"). EDA agrees to deliver
legal and actual possession of Parcel East to Renewal on the Closing Date.
6.1 EDA's Closina Documents and Deliveries. On the Closing Date, EDA
shall execute and/or deliver, as applicable, to Renewal the following:
A. Warrantv Deed. A warranty deed conveying title to Parcel East to
Renewal, free and clear of all encumbrances, except the Permitted Encumbrances
(the "Deed").
B. Citv Aareement. EDA shall cause City shall enter into an
Agreement with Owner containing the terms set forth in Section 24 ("City
AgreemenY').
C. Recertification of Representations and Warranties. EDA shall
provide Renewal with a certificate recertifying that the representations and
warranties set forth in Section 9 of this Agreement are true and correct as of the
Closing Date.
D. FIRPTA Affidavit. An affidavit of EDA certifying that EDA is not
a "foreign person", "foreign partnership", foreign trusY', "foreign estate" or
"disregarded entity" as those terms are defined in Section 1445 of the Internal
Revenue Code of 1986, as amended.
E. EDA's Affidavit. A standard owner's affidavit(ALTA form)from
EDA which may be reasonably required by Title to issue an owner's policy of title
insurance with respect to Parcel East with the so-called "standard exceptions"
deleted.
F. Settlement Statement. A settlement statement with respect to this
transaction.
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G. Copies of Resolutions. EDA shall provide Renewal with copies of
the resolutions far the various EDA and/or City public meetings showing the EDA
and/or various City commissions and/or councils have approved this transaction,
Renewal's CUP, Renewal's site plan, etc.
H. General Deliveries. All other documents reasonably determined by
Title to be necessary to transfer Parcel East to Renewal and to evidence that EDA
(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 Parcel East is subject to no monetary liens, (c)has obtained
all consents from third parties necessary to effect EDA's performance of the terms
of this Agreement, including, without limitation,the consents of all parties holding
an interest in Parcel East, (d) has provided such other documents as are reasonably
determined by Title to be necessary to issue policies of title insurance to Renewal
with respectto Parcel East with the so-called"standard exceptions"deleted, and(e)
has duly authorized the transactions contemplated hereby.
6.2. Renewal Closina Documents and Deliveries. On the Closing Date,
Renewal shall execute and/or deliver, as applicable, to EDA the following:
A. Pavment of Purchase Price. The Purchase Price, in accordance
with the terms of Section 1.2.
B. Citv Aareement. Owner shall execute and deliver the City
Agreement.
C. Settlement Statement. A settlement statement with respect to this
transaction.
D. FIRPTA Affidavit. An affidavit of Renewal certifying that
Renewal 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.
E. Evidence of Authority. Renewal shall provide EDA with copies of
the resolutions showing Renewal has met with necessary requirements to acquire
the Property in accordance with this Agreement together with such proceedings,
instruments and documents as may be reasonably required Title as a condition
precedent to issuing the Title Policy in Renewal's name.
F. General Deliveries. All other documents reasonably determined by
Title to be necessary to evidence that Renewal has duly authorized the transactions
contemplated hereby and evidence the authority of Renewal to enter into and
perform this Agreement and the documents and instruments required to be executed
and delivered by Renewal pursuant to this Agreement, or may be required of
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Renewal under applicable law, including any purchaser's affidavits or revenue or
tax certificates or statements.
7. Prorations. EDA and Renewal agree to the following prorations and allocation of
costs regarding this Agreement:
7.1 Title Evidence, Survev and Closina Fee. EDA shall pay all costs of the
Commitment with respect to Parcel East. EDA shall pay all costs of the Survey and re-
platting of the Property. Renewal shall pay all premiums for any title insurance policy it
desires with respect to Parcel East. Renewal and EDA shall each pay one half(1/2) of any
reasonable closing fee or charge imposed by Title.
7.2 Transfer Taxes. EDA shall pay all state deed tax regarding the Deed.
7.3 Recordina Costs. Renewal 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.
7.4 Real Estate Taxes and Special Assessments. General real estate taxes
applicable to any of Parcel East due and payable in the year of Closing shall be prorated
between EDA and Renewal on a daily basis as of 12:00 a.m. CT on the Closing Date based
upon a calendar fiscal year, with EDA paying those allocable to the period prior to the
Closing Date and Renewal being responsible for those allocable to the Closing Date and
subsequentthereto. EDA 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. Renewal shall be responsible for any special
assessments that are levied or become pending against Parcel East after the Closing Date,
including, without limitation, those related to Renewal's development of the Parcel East.
7.5 Utilities. All utility expenses, including water,fuel, gas, electricity, sewer
and other services furnished to or provided for Parcel East, if any, shall be prorated between
EDA and Renewal on a daily basis as ofthe Closing Date,with EDA payingthose allocable
to the period priar to the Closing Date and Renewal being responsible for those allocable
to the Closing Date and subsequent thereto.
7.6 Phase I Environmental Review. EDA shall pay all costs and expenses
related to the Phase I Environmental Review of Parcel East.
7.7 Attornevs' Fees. EDA and Renewal shall each pay its own attorneys' fees
incurred in connection with this transaction.
7.8 Survival. The obligations set forth in this Section 7 survive the Closing.
8. Title Examination. (i) Within seven (7) days following the Effective Date, EDA
shall, at EDA's expense, provide a commitment dated within siaTy(60) days of the Effective Date
for an owner's title insurance policy(ALTA Form 2006)issued by Title for Parcel East, and copies
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of all encumbrances described in the commitment(the"CommitmenY'); and(ii)within fifteen(15)
days following the Effective Date, EDA shall provide, at EDA's expense, an ALTA-certified
surveybearingthe legal description ofthe Property, and showingthe area, dimensions and location
of the Property and the matters shown in the Commitment (the "Survey" and, together with the
Commitment, the "Title Evidence").
8.1 RenewaPs Obiections. Within ten(10)days after Renewal's receipt ofthe
last of the Title Evidence, Renewal 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 Renewal within such time period or waived
by Renewal in accordance with Section 8.2(B) shall be deemed to be permitted
encumbrances ("Permitted Encumbrances"). Notwithstandingthe foregoing,the following
items shall be deemed Permitted Encumbrances: (a) Covenants, conditions, restrictions
(without effective forfeiture provisions) and declarations of record which do not interfere
with the Proposed Use, 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. Renewal shall have
the renewed right to object to the Title Evidence as the same may be revised or endorsed
from time to time.
8.2 EDA's Cure. EDA shall be allowed twenty (20) days after the receipt of
Renewal'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 EDA elects not to cure such Objections, Renewal
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 Renewal so terminates this Agreement, neither EDA nor Renewal 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
Renewal.
9. Warranties and Representations.
9.1 Bv EDA. EDA warrants and represents the following to Renewal, and
acknowledges that Renewal 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 EDA enforceable in
accordance with its terms. EDA has been duly formed under the laws of the State
of Minnesota and is in good standing under the laws ofthe jurisdiction in which the
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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 EDA pursuant hereto. This Agreement and the documents and
instruments required to be executed and delivered by EDA pursuant hereto have
each been duly authorized by all necessary action on the part of EDA and such
execution, delivery and performance does and will not conflict with or result in a
violation of EDA's organizational agreement or any judgment or order.
B. The execution, delivery and performance by EDA ofthis 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,
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 EDA is a party or
by which it or any of its properties may be bound.
C. To EDA'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 EDA 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 Renewal
obtaining all the Approvals (as defined below).
D. To EDA's knowledge, there are no actions, suits or proceedings
pending or threatened against or affecting EDA 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 EDA, would
have a material adverse effect on the ability of EDA to perform its obligations under
this Agreement.
E. EDA 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 paYterns 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 ar the use, operation,
maintenance or management of all or any part of the Property.
F. To EDA's knowledge, there are no wells or sewage treatment
systems located on any portion of the Property. To EDA's knowledge, there has
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been no methamphetamine production on or about any portion of the Property. To
EDA'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. EDA is not a "foreign person," "foreign corporation," "foreign
trust,""foreign estate"or"disregarded entity"as those terms are defined in Section
1445 ofthe Internal Revenue Code.
H. To EDA's knowledge, except as may be disclosed as part ofthe Due
Diligence Materials, (i)no condition exists on Parcel East 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 Parcel East, (ii)there has been no
release, spill, leak or other contamination or otherwise onto Parcel East, and (iii)
there are no restrictions, clean ups or remediation plans regarding Parcel East. To
EDA'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 Parcel East.
"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 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., (� the Safe
Drinking Water Act, 42 U.S.C. §300(�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 ofthe 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 forfuel, and shall include,without limitation, substances
defined as "hazardous substances," "toxic substances," "hazardous waste,"
"pollutants or contaminants" or similar substances under any Environmental Law.
L There are no leases ar tenancies with respect to Parcel East that will
not be terminated as of the Closing Date. There are no unrecorded agreements or
other contracts of any nature or type relating to, affecting or serving Parcel East
beyond an unwritten month-to-month lease with a farmer and the agreements to
acquire Parcel East and Parcel Westfrom Owner. EDA agrees to use its best efforts
to close on the acquisition of Parcel East from Owner on or before the Closing Date
and to enter into an option agreement with Owner regarding Parcel West containing
the provisions in Section 23 on or before the Closing Date.
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J. There will be no indebtedness or sums due attributable to Parcel East
which will remain unpaid after the Closing Date.
As used in this Agreement, the term "to EDA's knowledge" shall mean and refer
to only the current actual knowledge of the designated representative of EDA 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 EDA, or any affiliate of
EDA, 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 Charlene Stevens.
The representations, warranties and other provisions of this Section 9.1 shall
survive Closing;provided,however, EDA shall have no liability with respectto any breach
of a particular representation or warranty if Renewal shall fail to notify EDA in writing of
such breach within two (2) years after the Closing Date, and provided further that EDA
shall have no liability with respect to a breach of the representations and warranties set
forth in this Agreement if Renewal has actual knowledge of EDA's breach thereof prior to
Closing and Renewal consummates the acquisition of Parcel East as provided herein.
Renewal acknowledges and agrees that, except as expressly specified in this
Agreement and/or in any documents executed and delivered by the EDA at Closing, EDA
has not made, and EDA 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 Parcel East, 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, valuation, governmental
approvals, the compliance of Parcel East with governmental laws, the truth, accuracy or
completeness of any information provided by or on behalf of EDA to Renewal, or any other
matter or item regarding Parcel East. Renewal agrees that except as expressly specified in
this Agreement and/or in any documents executed and delivered by the EDA at Closing,
Renewal shall accept Parcel East and acknowledges that the sale of Parcel East as provided
for herein is made by EDA on an "AS IS," "WHERE IS," and "WITH ALL FAULTS"
basis. Renewal is an experienced purchaser of property such as Parcel East and Renewal
has made or will make its own independent investigation of Parcel East. The limitations
set forth in this paragraph shall survive the Closing and shall not merge in the deed.
9.2 By Renewal. Renewal 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. Renewal 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 Renewal of this
Agreement will not(a) violate any provision of any law, statute, rule or regulation
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or any order, writ, judgment, injunction, decree, determination or award of any
court, governmental agency or arbitrator presently in effect having applicability to
Renewal, (b)violate or contravene any provision of the articles of incorparation or
bylaws of Renewal, ar (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 Renewal 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, Renewal shall have no liability with respect to any breach of a
particular representation or warranty if EDA shall fail to notify Renewal in writing of such breach
within two (2)years after the Closing Date.
10. Additional Obliaations of EDA.
10.1 Licenses and Permits. EDA shall transfer to Renewal all transferable
rights, if any, in any permits or licenses held by EDA with respect to Parcel East. EDA
shall execute all applicable transfer forms and applications to facilitate and effect any such
transfer and to cooperate fully with Renewal in its efforts to obtain all of the necessary
licenses and permits for the Proposed Use, at no out-of-pocket cost to EDA, or the
assumption of any obligations or liabilities by EDA.
10.2 Condition of Parcel East at Closina. Prior to Closing, Parcel East shall
be operated in the ordinary course consistent with previous practice. On the Closing Date,
EDA shall deliver to Renewal exclusive vacant possession of Parcel East,free and clear of
any personal property, surface waste and surface debris of any kind. On or before the
Closing Date, EDA shall remove all trash and personal property from Parcel East. EDA
agrees that Renewal may dispose of any trash or personal property remaining on Parcel
East as of the Closing Date in Renewal's sole discretion and EDA agrees to pay for all
costs and expenses incurred by Renewal with respectto the transport and/or disposal of the
personal property within ten (10) days after receipt of an invoice from Renewal.
10.3 Further Assurances. From and after the Closing Date, EDA agrees to
execute, acknowledge and deliver to Renewal such other documents or instruments of
transfer or conveyance as may be reasonably required to carry out its obligations pursuant
to this Agreement.
10.4 Non-Assumption of Contracts or Other Obliaations. The parties
understand and agree that Renewal is only acquiring certain of EDA'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 Renewal of any agreements, indebtedness,
obligations or liabilities of EDA which are owing with respect to the operation of the
Property prior to the Closing Date.
lOS Mortgages. On or before the Closing Date, EDA shall satisfy all mortgage
and/or lien indebtedness with respect to all or any portion of Parcel East and shall obtain
12
recordable releases of Parcel East from any and all such mortgages or other liens affecting
all or any portion of Parcel East.
10.6 Approvals. Renewal may elect to seek certain approvals in order for
Renewal to develop Parcel East for the Proposed Use, including rezoning Parcel East or
receipt of a conditional use permit (the "Approvals"). EDA, at no out-of-pocket cost to
EDA, ar the assumption of any obligations or liabilities by EDA, will reasonably
cooperate with Renewal's efforts to obtain the Approvals at or prior to Closing. EDA
hereby grants Renewal the right to file and prosecute applications and petitions for the
Approvals and any special use permits and variances desired by Renewal; provided,
however, any special use permits or variances shall (a)be contingent on the occurrence of
the Closing and shall not be binding upon EDA or Parcel East unless and until the Closing
occurs, or (b) be approved in writing in advance by EDA. EDA, at no out-of-pocket cost
to EDA, or the assumption of any obligations or liabilities by EDA, agrees to cooperate
with Renewal in the filing and prosecution of such applications and petitions, including
the filing of the same in EDA's name, if required.
11. Commissions. 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
ofthis Agreement.
12. Notice. 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.
Ifto 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
13
If to Renewal:
If bv mail: Renewal by Andersen LLC
100 4�' Avenue North
Bayport, MN 55003
Attention: Director of Real Estate Services
W ith a copy to: Renewal by Andersen LLC
100 4�' Avenue North
Bayport, MN 55003
Attention: General Counsel
If bv nersonal service or overnieht courier:
Renewal by Andersen LLC
5909 Omaha Avenue
Oak Park Heights, MN 55003
Attention: Director of Real Estate Services
With a copy to: Renewal by Andersen LLC
5909 Omaha Avenue
Oak Park Heights, MN 55003
Attention: General Counsel
with copy (whether mail, personal service or overnight courier)to:
Carol A. Eiden
Fox Rothschild LLP
222 South Ninth Street, Suite 2200
Minneapolis, MN 55402
14. Default; Remedies. If either EDA or Renewal 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 Renewal, EDA'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 EDA, Renewal's sole and exclusive remedies shall be (i) specifically enforce this
Agreement, ar(ii)terminate this Agreement, in which case the Earnest Money shall be returned to
Renewal as agreed and final liquidated damages. In no event shall Renewal be entitled to record
a notice of Lis Pendens against Parcel East, unless Renewal 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.
14
15. Cumulative Riahts. No right or remedy conferred or reserved to EDA or Renewal
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.
16. Entire Aareement; Modification. 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.
17. Bindina Effect; Survival. 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.
18. RenewaPs Assi�nment. Renewal may assign this Agreement without the prior
written consent of the EDA(but with written notice to EDA). No assignment shall relieve Renewal
from its obligations under this Agreement.
19. Governinp Law. The provisions of this Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota
20. Counterparts; Facsimiles. This Agreement may be executed in any number of
counterparts, and all ofthe 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.
21. Represented by Counsel. Each party has been represented and advised by counsel
in the transaction contemplated hereby.
22. Time of the Essence. Time is of the essence of this Agreement.
23. Riaht of First Offer for Parcel West. The parties hereto acknowledge,understand
and agree that, in a Purchase Agreement between the EDA and Owner dated June 6, 2018, Owner
granted the EDA a Right of First Offer on Parcel West. Under the Right of First Offer, Owner is
obligated to notify the EDA of the receipt of any offer to purchase Parcel West from a third-party
that Owner is prepared to accept,prior to accepting, and the EDA shall have fifteen(15)days after
receipt thereof to notify Owner whether or not the EDA desires to exercise its Right of First Offer
and purchase Parcel West on such terms and conditions proposed. Ifthe EDA receives such notice
from Owner, EDA shall offer Parcel West to RenewaL If Renewal wishes to exercise its option,
Renewal may do so by providing the EDA, no later than ten(10) days after receipt of such notice,
with a signed purchase offer containing all ofthe same terms as this Agreement between the parties
that will govern sale of Parcel East including the same $3.00 per square foot purchase price and
$25,000.00 earnest money. Renewal can also elect to purchase Parcel West priar to receipt of
EDA's notice hereunder if Buyer wishes to buy Parcel West earlier. Upon any election of Renewal
15
to exercise its option hereunder, EDA agrees to acquire Parcel West from Owner in a manner
allowing EDA to fulfill its obligations hereunder. If Renewal elects to purchase Parcel West, the
sale shall be consummated within siaTy(180) days after receipt of Renewal's notice to exercise its
option hereunder. In the event that Renewal elects not to purchase Parcel West from the EDA,
Renewal shall execute a cancellation of its option to purchase Parcel West,terminating any interest
Renewal may have in Parcel West pursuant to this Purchase Agreement or otherwise. The EDA
may still elect to purchase Parcel West on such terms and conditions proposed by the Owner.
Renewal's option rights hereunder ea�tend from the date of this Agreement through June 6, 2023.
This Section 23 shall survive Closing.
24. City Agreement Covenants. The EDA will facilitate that the City and Renewal
enter into an agreement whereby the City agrees that if Renewal at some point needs to drain
stormwater into a pond offsite, then if no existing pond can accommodate such drainage,the City
will provide, at no costto Renewal, land for apond to be constructed. Renewal will construct such
pond of a size to accommodate Renewal's drainage, and any upsizing required to accommodate
other parcels will be constructed at the City's cost. Renewal will install, at Renewal's expense,
drainage piping of sufficient size to enable the routing of stormwater from Parcel East and Parcel
West to such pond, and if the City wishes to upsize such piping to accommodate flowage from
other properties, such upsizing shall be paid for by the City. The City will provide easements, if
necessary, allowing such drainage. Additionally,the EDA agrees that regardless of whether Parcel
East and Parcel West are combined into Renewal's adjacent property as one real estate parcel for
real estate tax purposes or subdivision purposes, Renewal shall preserve its rights to seek tax
increment financing in the future if Renewal constructs improvements thereon that otherwise meet
the requirements for such tax increment financing. EDA agrees to reasonably cooperate with
Renewal on such subdivisions of real estate that may be required to obtain such tax increment
financing for such future improvements. This Section 24 shall survive closing.
[remainder of page intentionally blank]
16
IN AGREEMENT, the parties hereto have hereunto set their hands as of the date
hereinbefore first written.
COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By
Myron Bailey
Its President
By
Charlene R. Stevens
Its Executive Director
17
RENEWAL BY ANDERSEN LLC:
By:
Name:
Its:
18
EXHIBIT A
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