HomeMy WebLinkAbout4.2 Renewal by Andersen/Murphy Logistics
TO: Economic Development Authority
FROM: Matt Wolf, Economic Development Specialist
DATE: May 8, 2019
RE: Purchase of Property from WAG Farms Inc. and Sale of Property to
Shamrock Investments V
Background
Renewal by Andersen has been a member of the Cottage Grove Business Park since
1998. Located at 9900 Jamaica Avenue South their original facility was expanded in
2015 bringing their total employee count in the City of Cottage Grove to over 700
employees and a facility that is approximately 351,000 square feet.
In March 2018 Renewal by Andersen met with the City of Cottage Grove to discuss the
need for expansion at their current facility. Renewal by Andersen has seen tremendous
growth and had begun to outgrow their location for semi-trailer parking for the shipping
of their products. At that time Renewal by Andersen purchased 9.21 acres to develop a
parking lot that would accommodate parking for 40-50 semi-trailers.
Renewal by Andersen began to construct the parking lot on the newly purchased
property. However, their growth required a more long-term solution for not only their
trailer parking but the need for more space in their current facility for manufacturing and
off-site warehousing of supplies for production.
To meet those needs Renewal by Andersen has worked with Murphy Logistics to come
up with a long-term solution to address these issues. Murphy Logistics currently
operates logistics facilities across the Minneapolis-St. Paul metro area. This
partnership would see Murphy Logistics construct a 464,766 square foot multi-user
industrial facility and Renewal by Andersen would lease approximately 2/3 of the facility.
Discussion
Zoning
As part of the project Renewal by Andersen will be selling their current 9.21 acres to
Murphy Logistics as part of the construction of the 464,766 square foot facility.
Additionally, Shamrock Investments V, LLC doing business as Murphy Logistics will be
purchasing an additional 18.66 acres of land. The industrial building will contain
warehouse, light manufacturing and office space. Currently both of these parcels of
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May 8, 2019
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land are zoned I2-General Industry and support all three uses per our zoning code (City
Code 11-11-1).
The building will be fully owned by Murphy Logistics, but Renewal by Andersen will be
leasing more than 2/3 of the facility for their use. The breakdown is shown in the figure
below. One third will be used by Murphy Logistics for their other customers, the
remaining will be used by Renewal by Andersen for warehousing and a combination of
light manufacturing and office space to be used by Renewal by Andersen. Between the
Murphy warehousing and Renewal warehousing space there will be a movable wall that
allows for transfer of space to either end user as needed over time.
Figure 1. Breakdown of the building by use.
Figure 2. Elevations of south side of building
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Figure 3. Site layout
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The building will contain a transitway along the ground that will allow for the transfer of
goods between the new Murphy Logistics building and Renewal by Andersen’s current
facility.
The project will require three variances that will be brought before the Planning
Commission at their May 29, 2019 meeting. The first will be a variance to their setbacks
as the transitway that connects the two buildings will not meet the interior setback
requirement of 40 feet (City Code 11-11-4). The second variance will be for loading
dock doors facing a public street (City Code 11-11-5). Murphy Logistics and Renewal
by Andersen need the loading docks to face south due to a safety concern to allow the
sun to melt any ice build-up during the winter months. The final variance is to the City’s
landscaping ordinance which requires that 327 trees are planted on the site plan (City
Code 11-6-5). However, due to tree spacing requirements for the trees only 217 trees fit
on site.
Sale of Land
The purchase price of the 18.66 acre or 812,830 square feet site is set at $3.00 per
square foot for a total of $2,438,490. The 18.66-acre parcel will be created by
subdividing the eastern section of the current 41.16-acre site that is owned by WAG
Farms. This will leave a parcel of 23 acres for future development. The EDA as in the
past with other projects (i.e. Airgas, Gardenworld, etc.) in the Business Park will
purchase the land from WAG Farms and then sell the land to Murphy Logistics.
Figure 1. Land to be purchased by Murphy Logistics and remaining 23 acres for development.
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Minnesota Investment Fund and Job Creation Fund
Renewal by Andresen will be applying for assistance through the State of Minnesota
Department of Employment and Economic Development. As part of the project
Renewal by Andersen is currently estimating that they will be investing $25 million in
capital costs related to machinery and equipment. Additionally, the project will be
creating 125 jobs over the next three years with the majority of those positions starting
at $16.15 an hour plus benefits.
Based on the capital expenditure in the project and the number of jobs created. The
State of Minnesota determined the project is estimated to receive assistance in the form
of:
Minnesota Job Creation Fund (MJCF) - Up to $800,000
Minnesota Investment Fund (MIF) - Up to $450,000
Forgivable Loan for M&E
(Contingent upon city
agreeing to forgive)
Table 1. Breakdown of jobs to be created by Renewal by Andersen at full operation.
Position Title Average Average Hourly 2020 2021 2022
Hourly Wage Benefits
Office $33.65 $6.75 12 12 10
Engineer $41.82 $7.28 2
Manufacturing Associate $16.15 $5.51 4 58 16
Supervisor/Manager $36.34 $6.96 1 2
Warehouse Associate $16.15 $5.51 6 2
Total Jobs 17 80 28
125
Minnesota Job Creation Fund (JCF) is a pay-for-performance program that provides
payments as hiring, wages and investment targets are achieved. Based on the following
criteria:
Eligible businesses must invest $500,000 in real property improvements within
one year of the award date and hire a minimum of 10 net new full-time
employees within two years. Once qualifying capital expenditures have been
made and the 10 employees have been on the payroll for one year, payments
are provided on an annual basis for up to four years.
Capital expenditure payments are up to 5 percent of eligible capital expenditures
up to a cap established at the time of the award. Job creation payments are
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based on the level of the new employee wages with $1,000 provided annually for
each new job paying at least $27,716 in cash wages, $2,000 for each job paying
at least $37,708 and $3,000 for each job paying at least $47,966. These wages
thresholds increase annually and are also subject to a cap established at the
time of the award.
Within six months following the JCF award, the business must demonstrate
reasonable progress on the project. No orders, contracts or expenditures related
to the project may be signed prior to the award. Such activities include, but are
not limited to architecture services, site preparation, building permits, leases, etc.
Only job creation and eligible expenditures that occur after all signatures have
been obtained on the award contract are eligible for payment.
Minnesota Investment Fund (MIF) is a loan program that operates through city partners.
DEED provides funds to the city which then delivers loan financing to businesses.
Based on the following criteria:
The value of the MIF assistance is based upon capital investment, job creation
within two years, wage levels and economic conditions in the city.
MIF funds would be provided to Cottage Grove and then the City would deliver
funds as a loan to the company to reimburse for machinery or equipment. This
loan would be forgiven (if Cottage Grove agrees) if the company meets the
capital expenditure, job and wage requirements.
MIF funds must be matched on a 1:1 basis; in other words, at least 50% of total
project costs must be privately financed through owner equity or other lending
sources which shouldn’t be a problem given the expected investment.
MIF funds and matching funds may be used only to pay for equipment costs
incurred after the grant agreement has been signed by the city and DEED. A
local resolution is required to be included with the completed application
Recommendation
By Motion:
A. Approve a resolution approving the purchase of property from WAG Farms Inc.,
et. al. and sale of property to Shamrock Investments V, LLC for development
purposes.
B. Approve a resolution regarding a Minnesota Investment Fund application by
Renewal by Andersen, LLC to the Department of Employment and Economic
Development
C. Approve a resolution in support of a Job Creation Fund application in connection
with Renewal by Andersen, LLC.
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Attachment
1. Resolution Approving Sale
2. Purchase Agreement WAG-EDA
3. Purchase Agreement EDA-Shamrock Investments V, LLC
4. Resolution Minnesota Investment Fund
5. Resolution Minnesota Job Creation Fund
COTTAGE GROVE
ECONOMIC DEVELOPMENT AUTHORITY
WASHINGTON COUNTY
STATE OF MINNESOTA
RESOLUTION NO. 2019-005
A RESOLUTION APPROVING THE PURCHASE OF PROPERTY FROM
WAG FARMS, INC., ET AL AND SALE OF PROPERTY TO
SHAMROCK INVESTMENTS V, LLC FOR DEVELOPMENT PURPOSES
Whereas, the Cottage Grove Economic Development Authority (“EDA”) desires to
purchase and sell approximately 18.66 acres of property from WAG Farms, Inc. et. al. for the
purpose of development for certain real property legally described as:
That part of Outlot A, GLENGROVE INDUSTRIAL PARK 7TH ADDITION, according
to the recorded plat thereof Washington County, Minnesota that lies southerly and easterly
of the following described line:
Commencing at the southeast corner of Outlot B, said GLENGROVE INDUSTRIAL
PARK 7TH ADDITION, thence South 00 degrees 07 minutes 51 seconds East, assumed
bearing, along the east line of said Outlot A, a distance of 240.01 feet to the point of
beginning of the line to be described; thence North 89 degrees 59 minutes 21 seconds West
a distance of 650.78 feet; thence South 00 degrees 00 minutes 39 seconds West a distance
of 685.57 feet to the south line of said Outlot A and said line terminating thereat.
(“Property”); and
Whereas, Shamrock Investments V, LLC (“Developer”) desires to purchase the Property
for a new project involving industrial development and uses incidental thereto; and
Whereas, on May 14, 2019, the EDA held a public public hearing on the purchase of the
Property and the sale of the Property and the EDA considered all of the information presented at
the public hearing.
NOW THEREFORE BE IT RESOLVED by the Board of Commissioners of the Cottage
Grove Economic Development Authority as follows:
1. The purchase of Property from the WAG Farms, Inc., et. al. and sale of the Property to the
Developer is in the public interest of the City and its people, furthers its general plan of
economic development and furthers the aims and purposes of Minn. Stat. Sections 469.090
to 469.108; and the appropriate officials are authorized to take such action so as to effectuate
such purchase and sale.
2. The plans and specifications for the development of the Property are hereby approved.
th
Passed this 14 day of May, 2019.
Myron Bailey, President
Attest:
Jennifer Levitt, Executive Director
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this “Agreement”) is entered into as of
, 2019 (the “Effective Date”), by and between the Cottage Grove Economic
Development Authority, a public body corporate and politic under the laws of Minnesota, (“EDA”),
and Glendenning Farms, L.P., a Minnesota limited partnership, WAG Farms, Inc., a Minnesota
corporation and Joan Glendenning Kennedy Family Limited Partnership, a Minnesota limited
partnership (individually and collectively “WAG”).
RECITALS
Recital No. 1. WAG is the owner of 41.16 acres of unimproved real property located
in Cottage Grove, Washington County, Minnesota, legally described and depicted on Exhibit A,
attached hereto and incorporated herein by reference (“WAG Property”).
Recital No. 2. EDA desires to purchase the portion of the WAG Property legally
described and depicted on Exhibit B from WAG, attached hereto and incorporated herein by
reference (the “Property”), made up of approximately 18.66 acres and WAG desires to sell the
same to EDA, all on the terms and conditions of this Agreement.
NOW, THEREFORE, EDA and WAG agree as follows:
1. Sale.
1.1. Sale. Subject to the terms and provisions of this Agreement, WAG shall
sell the Property to EDA, and EDA shall purchase the same from WAG.
1.2. Purchase Price. The purchase price to be paid by EDA to WAG for the
Property shall be One Dollar and 75/100 ($1.75) multiplied by 812,877 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 One Million, Four
Hundred Twenty-Two Thousand, Five Hundred Thirty-Five and No/100 Dollars
$1,422,535.00) 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 WAG. The Closing will occur at DCA Title,
7373 147th Street West, Apple Valley, MN 55124 (“Title”), unless otherwise agreed to by
the parties.
2. Available Surveys, Tests, and Reports. Within ten (10) days of the Effective
Date, WAG 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 WAG, and
(b) copies of existing title work for the Property and in the possession of WAG (the “Due Diligence
Materials”). WAG makes no representations or warranties regarding the accuracy of the Due
Diligence Materials.
3. EDA’s Investigations. For a period up to thirty calendar (30) days following the
Effective Date, WAG 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) WAG 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 WAG reasonable prior notice of such testing. WAG
shall have the right to accompany EDA during any of EDA’s Investigations of the Property. EDA
shall provide to WAG 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 WAG 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.
4. Insurance; Risk of Loss. WAG 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, WAG shall immediately give EDA notice of such condemnation, taking or damage. After
receipt of notice of such condemnation, taking or damage (from WAG or otherwise), EDA shall
have the option (to be exercised in writing within thirty (30) days) either (a) to require WAG 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 WAG’s right, title and interest in and to any
claims WAG 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 WAG, 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. WAG shall not designate counsel, appear in, or otherwise act with respect to
the condemnation proceedings without EDA’s prior written consent, which consent shall not be
unreasonably withheld.
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5. Contingencies.
5.1. EDA’s Contingencies.
A. Unless waived by EDA in writing, EDA’s obligation to proceed to
Closing shall be subject to (a) performance by WAG of its obligations hereunder,
(b) the continued accuracy of WAG’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 thirty (30) 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 Closing Date, EDA shall have determined
the acceptability of the Property for use as a warehouse and parking lot and
other 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 thirty (30) 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, WAG 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 thirty (30) days following the Effective Date,
EDA shall review and approve the books and records in WAG’s possession,
if any, including site plans, surveys, engineering or environmental reports
associated with the Property.
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(7) On or before thirty (30) days following the Effective Date,
EDA shall review and approve the ALTA Survey of the Property.
(8) On or before thirty (30) days following the Effective Date,
EDA shall review and approve the Alternative Urban Area Review (AUAR)
of 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. WAG
shall reasonably cooperate with EDA’s efforts to satisfy such contingencies, at no
out of pocket cost to WAG 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 WAG. 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 WAG set out in this Agreement, including without limitation any indemnity or
representations with respect to environmental matters.
5.2 WAG’s Contingencies. WAG’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. 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.
WAG may in its sole discretion waive any of the conditions precedents set out in
this Section.
6. Closing. The closing of the purchase and sale contemplated by this Agreement (the
“Closing”) shall occur on or before June 30, 2019 (the “Closing Date”). WAG agrees to deliver
legal and actual possession of the Property to EDA on the Closing Date.
6.1 WAG’s Closing Documents and Deliveries. On the Closing Date, WAG
shall execute and/or deliver, as applicable, to EDA the following:
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A. Warranty Deed. A warranty deed conveying title to the Property
to EDA, free and clear of all encumbrances, except the Permitted Encumbrances
(the “Deed”).
B. FIRPTA Affidavit. An affidavit of WAG certifying that WAG 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.
C. WAG’s Affidavit. A standard owner’s affidavit (ALTA form) from
WAG 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).
D. Settlement Statement. A settlement statement with respect to this
transaction.
E. General Deliveries. All other documents reasonably determined by
Title to be necessary to transfer the Property to EDA and to evidence that WAG (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 WAG’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
respect to the Property with the so-called “standard exceptions” deleted (excluding
the survey exception), and (e) has duly authorized the transactions contemplated
hereby.
6.2. EDA Closing Documents and Deliveries. On the Closing Date, EDA shall
execute and/or deliver, as applicable, to WAG the following:
A. Payment of Purchase Price. The Purchase Price, in accordance
with the terms of Section 1.2.
B. Settlement Statement. A settlement statement with respect to this
transaction.
C. General Deliveries. 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.
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7. Prorations. WAG and EDA agree to the following prorations and allocation of
costs regarding this Agreement:
7.1 Title Evidence, Survey and Closing Fee. 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 WAG 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 Recording Costs. EDA will pay all recording costs with respect to the
recording of the Deeds.
7.4 Real Estate Taxes and Special Assessments. General real estate taxes
applicable to any of the Property due and payable in the year of Closing shall be prorated
between WAG and EDA on a daily basis as of 12:00 a.m. CT on the Closing Date based
upon a calendar fiscal year, with WAG 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. WAG 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.
7.5 Utilities. 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 WAG and EDA on a daily basis as of the Closing Date, with WAG 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.
7.6 AUAR. EDA shall pay all costs and expenses related to the AUAR of the
Property.
7.7 Attorneys’ Fees. WAG and EDA 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 ten (10) 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 ten (10) days following the Effective Date, EDA
shall order, at EDA’s expense, an ALTA-certified survey bearing the legal description of the
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Property, and showing the area, dimensions and location of the Property (the “Survey” and,
together with the Commitment, the “Title Evidence”).
8.1 EDA’s Objections. 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,
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.
8.2 WAG’s Cure. WAG 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 WAG 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 WAG 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).
9. Warranties and Representations.
9.1 By WAG. WAG 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 WAG enforceable in
accordance with its terms. WAG 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 WAG pursuant hereto. This Agreement and the documents and
instruments required to be executed and delivered by WAG pursuant hereto have
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each been duly authorized by all necessary action on the part of WAG and such
execution, delivery and performance does and will not conflict with or result in a
violation of WAG’s organizational agreement or any judgment or order.
B. The execution, delivery and performance by WAG 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
WAG, 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 WAG is
a party or by which it or any of its properties may be bound.
C. To WAG’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 WAG 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 WAG’s knowledge, there are no actions, suits or proceedings
pending or threatened against or affecting WAG 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 WAG, would
have a material adverse effect on the ability of WAG to perform its obligations
under this Agreement.
E. WAG 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 WAG’s knowledge, there are no wells or sewage treatment
systems located on any portion of the Property. To WAG’s knowledge, there has
been no methamphetamine production on or about any portion of the Property. To
WAG’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.
8
G. WAG 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 WAG’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 WAG’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.
“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., (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 WAG’s knowledge” shall mean and refer
to only the current actual knowledge of the designated representative of WAG 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 WAG, or any affiliate of
WAG, 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.
9
The representations, warranties and other provisions of this Section 9.1 shall
survive Closing; provided, however, WAG shall have no liability with respect to any
breach of a particular representation or warranty if EDA shall fail to notify WAG in writing
of such breach within two (2) years after the Closing Date, and provided further that WAG
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 WAG’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, WAG has not made, and WAG 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,
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
WAG 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 WAG 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.
9.2 By EDA. EDA warrants and represents the following to WAG, and
acknowledges that WAG 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 WAG shall fail to notify EDA in writing of such breach within two
(2) years after the Closing Date.
10
10. Additional Obligations of WAG.
10.1 Licenses and Permits. WAG shall transfer to EDA all transferable rights,
if any, in any permits or licenses held by WAG with respect to the Property. WAG 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 WAG, or the assumption of
any obligations or liabilities by WAG.
10.2 Condition of Property at Closing. Prior to Closing, the Property shall be
operated in the ordinary course consistent with previous practice. On the Closing Date,
WAG 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, WAG shall remove all trash and personal property from the Property. WAG
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 WAG 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.
10.3 Further Assurances. From and after the Closing Date, WAG 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.
10.4 Non-Assumption of Contracts or Other Obligations. The parties
understand and agree that EDA is only acquiring certain of WAG’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 WAG which are owing with respect to the operation of the Property prior
to the Closing Date.
10.5 Mortgages. On or before the Closing Date, WAG 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.
10.6 Approvals. 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”). WAG, at no out-of-pocket cost
to WAG, or the assumption of any obligations or liabilities by WAG, will reasonably
cooperate with EDA’s efforts to obtain the Approvals at or prior to Closing. WAG 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 WAG or the Property unless and until the
Closing occurs, or (b) be approved in writing in advance by WAG. WAG, at no out-of-
11
pocket cost to WAG, or the assumption of any obligations or liabilities by WAG, agrees
to cooperate with EDA in the filing and prosecution of such applications and petitions,
including the filing of the same in WAG’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
of this 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.
If to EDA: Cottage Grove Economic Development Authority
12800 Ravine Parkway South
Cottage Grove MN 55016
Attn: Jennifer Levitt, 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 WAG: Joan Glendenning Kennedy Family Limited Partnership
7437 Queensland Lane North
Maple Grove, MN. 55311-3799
Attn: William S. Kennedy, Jr.
Glendenning Farms, L.P. and
WAG Farms, Inc.
1941 Ford Parkway #304
St. Paul, MN 55116
Attn: Gordon Glendenning
14. Default; Remedies. If either WAG 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, WAG’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 WAG. In the case of any default by WAG, EDA’s sole and exclusive
12
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.
15. Cumulative Rights. No right or remedy conferred or reserved to WAG 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.
16. Entire Agreement; 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. Binding 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. EDA’s Assignment. EDA may assign this Agreement without the prior written
consent of the WAG (but with written notice to WAG). No assignment shall relieve EDA from its
obligations under this Agreement.
19. Governing 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 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.
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.
\[Remainder of page intentionally blank\]
13
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 ________________________________
Jennifer Levitt
Its Executive Director
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WAG FARMS, INC.
By:__________________________________
William G. Glendenning
Its: President
GLENDENNING FARMS, L.P.
By:__________________________________
William G. Glendenning
Its: General Partner
15
JOAN GLENDENNING KENNEDY
FAMILY LIMITED PARTNERSHIP
By:____________________________
William S. Kennedy, Jr.
Its: General Partner
16
EXHIBIT A
LEGAL DESCRIPTION AND DEPICTION OF WAG PROPERTY
Real property in Washington County, Minnesota legally described as follows:
th
Outlot A, Glengrove Industrial Park 7 Addition
PID: 20.027.21.44.0008
A-1
EXHIBIT B
LEGAL DESCRIPTION AND DEPICTION OF PROPERTY
B-1
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this “Agreement”) is entered into as of
, 2019 (the “Effective Date”), by and between the Cottage Grove Economic Development
Authority, a public body corporate and politic under the laws of Minnesota, (“EDA” or “Seller”),
and Shamrock Investments V, LLC, a Minnesota limited liability company (“Shamrock V” or
“Buyer”).
RECITALS
Recital No. 1. Glendenning Farms, L.P., WAG Farms, Inc. and Joan Glendenning
Kennedy Family Limited Partnership (collectively “Owner”) are the owners of 18.66 acres of
unimproved real property, which real property represents a portion of Outlot A, Glengrove
th
Industrial Park 7 Addition, located in Cottage Grove, Washington County, Minnesota, legally
described and depicted on Exhibit A (the “Property”).
Recital No. 2. EDA desires to purchase the Property from Owner and sell the same to
Shamrock V on the terms and conditions of this Agreement.
NOW, THEREFORE, Shamrock V and EDA agree as follows:
1. Sale.
1.1. Sale. Subject to the terms and provisions of this Agreement, EDA shall sell
the Property to Shamrock V, and Shamrock V shall purchase same from EDA.
1.2. Purchase Price. The purchase price to be paid by Shamrock V to EDA for
the Property shall be Three Dollars and 00/100 ($3.00) multiplied by 812,877 square feet
as finally determined by the Survey (as defined below) (the “Purchase Price”). The
Purchase Price of Two Million, Four Hundred Thirty-Eight Thousand, Six Hundred Thirty-
One 00/100s Dollars ($2,438,631.00) 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 Surveys, Tests, and Reports. Within ten (10) days of the Effective
Date, EDA shall cause to be delivered to Shamrock V, (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 for the direct benefit of Buyer, at
Buyer’s expense except as otherwise provided in this Agreement, 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. Shamrock V’s Investigations. For a period up to the Closing Date following the
Effective Date, EDA shall allow Shamrock V and Shamrock V’s agents access to the Property
without charge and at all times for the purpose of Shamrock V’s investigation and testing of the
Property, including surveying and testing of soil and groundwater (“Shamrock V’s
Investigations”); provided, however, Shamrock V shall not perform any invasive testing unless (a)
EDA gives its prior written approval of Shamrock V’s consultant that will perform the testing,
which approval shall not be unreasonably withheld, conditioned or delayed, and (b) Shamrock V
gives EDA reasonable prior notice of such testing. EDA shall have the right to accompany
Shamrock V during any of Shamrock V’s Investigations of the Property. Shamrock V shall
provide to EDA copies of all third-party, non-confidential written test results and reports
conducted as part of Shamrock V’s Investigations. Except as otherwise provided herein, Shamrock
V agrees to pay all of the costs and expenses associated with Shamrock V’s Investigations, to cause
to be released any lien on the Property arising as a result of Shamrock V’s Investigations and to
repair and restore, at Shamrock V’s expense, any damage to the Property caused by Shamrock V’s
Investigations. Shamrock V shall indemnify and hold EDA and the Property harmless from all
costs and liabilities, including, but not limited to, reasonable attorneys’ fees, arising from
Shamrock V’s Investigations. The indemnification obligations provided herein shall survive the
termination or cancellation of this Agreement. Notwithstanding the foregoing, within thirty (30)
days from the Effective Date, EDA shall, at EDA’s expense, provide Shamrock V with the AUAR
(alternative urban area review) of the Property. If Shamrock V deems it reasonably necessary
based upon its review of the AUAR, Shamrock V shall have an additional thirty (30) days to obtain
and approve a Phase II Environmental Site Assessment (the “Phase II”), at its own expense . If
this Agreement is terminated based upon any environmental condition as herein provided, and
EDA requests, Shamrock V shall give EDA copies of any and all AUAR, Phase I and Phase II
reports obtained by Shamrock V.
4. Insurance; Risk of Loss. EDA 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, EDA shall immediately give Shamrock V notice of such condemnation, taking or damage.
After receipt of notice of such condemnation, taking or damage (from EDA or otherwise),
Shamrock V shall have the option (to be exercised in writing within thirty (30) days of receipt of
such notice from EDA) either (a) to require EDA to (i) convey the Property at Closing (as defined
in Section 6) to Shamrock V 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 Shamrock
V 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, and (iii) pay to Shamrock V 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
2
such termination to EDA, whereupon this Agreement shall be terminated, the Earnest Money shall
be refunded to Shamrock V 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 Shamrock V’s prior written
consent, which consent shall not be unreasonably withheld.
5. Contingencies.
5.1. Shamrock V’s Contingencies.
A. Unless waived by Shamrock V in writing, Shamrock V’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) Shamrock V’s satisfaction, in Shamrock V’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, Shamrock V shall have
determined, in its sole discretion, that it is satisfied with (a) the results of
and matters disclosed by Shamrock V’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 Closing Date, Shamrock V shall have
determined the acceptability and zoning of the Property for its proposed use
as a warehouse and parking lot and other 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 Shamrock V, with the
exception of the re-plat of the Property which shall be at EDA’s sole cost
and expense.
(3) On or before the Closing Date, Shamrock V shall have
received from Title an irrevocable commitment to issue a title insurance
policy for the Property in a form and substance satisfactory to Shamrock V
in Shamrock V’s sole discretion, not disclosing any encumbrance not
acceptable to Shamrock V in Shamrock V’s sole discretion (the “Approved
Commitment”).
(4) On or before the Closing Date, EDA shall have obtained
releases of the Property from any and all mortgages or other monetary liens
affecting any of the Property.
3
(5) On or before the Closing Date, Shamrock V shall review and
approve the books and records in EDA’s possession, if any, including site
plans, surveys, engineering or environmental reports associated with the
Property.
(6) On or before the Closing Date, Shamrock V shall secure
financing that is satisfactory to Shamrock V in Shamrock V’s sole
discretion for the purpose of acquiring and constructing the Proposed Use.
(7) On or before the Closing Date, Shamrock V shall review and
approve the ALTA Survey of the Property.
(8) On or before the Closing Date, Shamrock V shall review and
approve the AUAR of the Property.
(9) On or before the Closing Date, Shamrock V shall obtain
approval of the transaction by Murphy Warehouse Company’s Board of
Directors and the Board of Governors of Shamrock V.
(10) On or before the Closing Date, Shamrock V shall approve
the forms of all closing documents, including the agreement with the City
of Cottage Grove containing the covenants in Section 24 hereof.
(11) Shamrock V shall be able to simultaneously close on the
purchase of a 9.21 acre parcel owned by Renewal by Andersen LLC
(“RbA”) adjacent to the Property (“Adjacent Parcel”) for purposes of
Shamrock V’s development of the Property and the Adjacent Parcel as a
contiguous parcel for its Proposed Use.
(12) Murphy Logistics Services, Inc., an affiliate of Shamrock V,
shall have approved and entered into an acceptable Sublease Agreement
with RbA for RbA’s use and occupancy of a portion of the facilities to be
constructed by Shamrock V on the Property and the Adjacent Parcel.
(13) Shamrock V and RbA shall reach acceptable agreements
related to the construction, maintenance and operation of an enclosed
walkway between the Property, the Adjacent Parcel and RbA’s existing
facilities contiguous to the Adjacent Parcel, and all necessary easements and
permits related thereto.
(14) All representations and warranties of EDA contained in this
Agreement shall be accurate as of the Closing Date.
The foregoing contingencies are for Shamrock V’s sole and exclusive
benefit and one (1) or more may be waived in writing by Shamrock V in its sole
discretion. EDA shall reasonably cooperate with Shamrock V’s efforts to satisfy
4
such contingencies, at no out of pocket cost to EDA or assumption of any
obligation or liability by Shamrock V except as otherwise provided herein.
Shamrock V shall bear all cost and expense of satisfying Shamrock V’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 Shamrock
V’s option, by written notice from Shamrock V to EDA. Such written notice must
be given on or before the applicable date, or Shamrock V’s right to terminate this
Agreement pursuant to this Section shall be waived. If Shamrock V terminates
this Agreement pursuant to this Section, the Earnest Money shall immediately be
refunded to Shamrock V. 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 Shamrock V 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 Contingencies. 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:
A. EDA shall have acquired the Property from Owner, and the EDA
agrees to use its best efforts to effectuate such transaction.
B. Shamrock V 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 Shamrock V 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 of the purchase and sale contemplated by this Agreement (the
“Closing”) shall occur on or before June 30, 2019 (the “Closing Date”). EDA agrees to deliver
legal and actual possession of the Property to Shamrock V on the Closing Date.
6.1 EDA’s Closing Documents and Deliveries. On the Closing Date, EDA
shall execute and/or deliver, as applicable, to Shamrock V the following:
A. Warranty Deed. A warranty deed conveying title to the Property
to Shamrock V, free and clear of all encumbrances, except the Permitted
Encumbrances (the “Deed”).
5
B. Recertification of Representations and Warranties. EDA shall
provide Shamrock V 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.
C. FIRPTA Affidavit. 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.
D. 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 the Property with the so-called “standard exceptions”
deleted.
E. Settlement Statement. A settlement statement with respect to this
transaction.
F. Copies of Resolutions. EDA shall provide Shamrock V with copies
of the resolutions for the various EDA and/or City public meetings showing the
EDA and/or various City commissions and/or councils have approved this
transaction, Shamrock V’s CUP, Shamrock V’s site plan, zoning, and such other
governmental approvals as may be required for Shamrock V’s Proposed Use.
G. General Deliveries. All other documents reasonably determined by
Title to be necessary to transfer the Property to Shamrock V 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 the Property 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 the Property, (d) has provided such other documents
as are reasonably determined by Title to be necessary to issue policies of title
insurance to Shamrock V with respect to the Property with the so-called “standard
exceptions” deleted, and (e) has duly authorized the transactions contemplated
hereby.
6.2. Shamrock V Closing Documents and Deliveries. On the Closing Date,
Shamrock V shall execute and/or deliver, as applicable, to EDA the following:
A. Payment of Purchase Price. The Purchase Price, in accordance
with the terms of Section 1.2.
B. Settlement Statement. A settlement statement with respect to this
transaction.
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C. Evidence of Authority. Shamrock V shall provide EDA with
copies of the resolutions showing Shamrock V 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 Shamrock V’s name.
D. General Deliveries. All other documents reasonably determined by
Title to be necessary to evidence that Shamrock V has duly authorized the
transactions contemplated hereby and evidence the authority of Shamrock V to
enter into and perform this Agreement and the documents and instruments required
to be executed and delivered by Shamrock V pursuant to this Agreement, or may
be required of Shamrock V under applicable law, including any purchaser’s
affidavits or revenue or tax certificates or statements.
7. Prorations. EDA and Shamrock V agree to the following prorations and allocation
of costs regarding this Agreement:
7.1 Title Evidence, Survey and Closing Fee. EDA shall pay all costs of the
Commitment with respect to the Property. EDA shall pay all costs of obtaining the Survey
and re-platting of the Property. Shamrock V shall pay all premiums for any title insurance
policy it desires with respect to the Property. Shamrock V 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 Recording Costs. Shamrock V will pay all recording costs with respect to
the recording of the Deed and for the recording of any mortgage required by Shamrock V,
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 the Property due and payable in the year of Closing shall be prorated
between EDA and Shamrock V 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 Shamrock V being responsible for those allocable to the Closing Date
and subsequent thereto. 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. Shamrock V 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 Shamrock V’s development of
the Property.
7.5 Utilities. 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 EDA and Shamrock V on a daily basis as of the Closing Date, with EDA paying
those allocable to the period prior to the Closing Date and Shamrock V being responsible
for those allocable to the Closing Date and subsequent thereto.
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7.6 AUAR. EDA shall pay all costs and expenses related to the AUAR of the
Property.
7.7 Attorneys’ Fees. EDA and Shamrock V shall each pay its own attorneys’
fees incurred in connection with this transaction, except as otherwise specifically set forth
in this Agreement.
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 sixty (60) days of the Effective Date
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
fifteen (15) days following the Effective Date, EDA shall provide, 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 and the matters shown in the Commitment (the “Survey” and, together
with the Commitment, the “Title Evidence”).
8.1 Shamrock V’s Objections. Within twenty (20) days after Shamrock V’s
receipt of the last of the Title Evidence, Shamrock V 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 Shamrock V within
such time period or waived by Shamrock V 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
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. Shamrock V 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
Shamrock V’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,
Shamrock V 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 Shamrock V so terminates this Agreement, neither EDA nor Shamrock V shall be liable
to the other for any further obligations under this Agreement (except for such obligations
8
as survive termination of this Agreement) and the Earnest Money shall be refunded to
Shamrock V.
9. Warranties and Representations.
9.1 By EDA. EDA warrants and represents the following to Shamrock V, and
acknowledges that Shamrock V 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 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 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 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,
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 Shamrock
V 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.
9
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 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 EDA’s knowledge, there are no wells or sewage treatment
systems located on any portion of the Property. To EDA’s knowledge, there has
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 of the Internal Revenue Code.
H. To EDA’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
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 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 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
10
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 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 the Property
beyond an unwritten month-to-month lease with a farmer and the agreements to
acquire the Property from Owner. EDA agrees to use its best efforts to close on the
acquisition of the Property from Owner on or before the Closing Date.
J. There will be no indebtedness or sums due attributable to the
Property 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 officer, manager, 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 Jennifer Levitt.
The representations, warranties and other provisions of this Section 9.1 shall
survive Closing; provided, however, EDA shall have no liability with respect to any breach
of a particular representation or warranty if Shamrock V 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 Shamrock V has actual knowledge of EDA’s breach thereof prior
to Closing and Shamrock V consummates the acquisition of the Property as provided
herein.
Shamrock V 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 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, 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 EDA to Shamrock V, or any
other matter or item regarding the Property. Shamrock V agrees that except as expressly
specified in this Agreement and/or in any documents executed and delivered by the EDA
at Closing, Shamrock V shall accept the Property and acknowledges that the sale of the
Property as provided for herein is made by EDA on an “AS IS,” “WHERE IS,” and “WITH
ALL FAULTS” basis. Shamrock V is an experienced purchaser of property such as the
Property and Shamrock V has made or will make its own independent investigation of the
11
Property. The limitations set forth in this paragraph shall survive the Closing and shall not
merge in the deed.
9.2 By Shamrock V. Shamrock V 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. Shamrock V 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 Shamrock V 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
Shamrock V, (b) violate or contravene any provision of the articles of incorporation
or bylaws of Shamrock V, 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 Shamrock V 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, Shamrock V shall have no liability with respect to any breach of a
particular representation or warranty if EDA shall fail to notify Shamrock V in writing of such
breach within two (2) years after the Closing Date.
10. Additional Obligations of EDA.
10.1 Licenses and Permits. EDA shall transfer to Shamrock V all transferable
rights, if any, in any permits or licenses held by EDA with respect to the Property. EDA
shall execute all applicable transfer forms and applications to facilitate and effect any such
transfer and to cooperate fully with Shamrock V 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 the Property at Closing. Prior to Closing, the Property shall
be operated in the ordinary course consistent with previous practice. On the Closing Date,
EDA shall deliver to Shamrock V 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, EDA shall remove all trash and personal property from the Property.
EDA agrees that Shamrock V may dispose of any trash or personal property remaining on
the Property as of the Closing Date in Shamrock V’s sole discretion and EDA agrees to
pay for all costs and expenses incurred by Shamrock V with respect to the transport and/or
disposal of the personal property within ten (10) days after receipt of an invoice from
Shamrock V.
10.3 Further Assurances. From and after the Closing Date, EDA agrees to
execute, acknowledge and deliver to Shamrock V such other documents or instruments of
12
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 Obligations. The parties
understand and agree that Shamrock V 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 Shamrock V 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.
10.5 Mortgages. On or before the Closing Date, EDA 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.
10.6 Approvals. Shamrock V may elect to seek certain approvals in order for
Shamrock V to develop the Property for the Proposed Use, including rezoning the
Property or receipt of a conditional use permit (the “Approvals”). EDA, at no out-of-
pocket cost to EDA, or the assumption of any obligations or liabilities by EDA, will
reasonably cooperate with Shamrock V’s efforts to obtain the Approvals at or prior to
Closing. EDA hereby grants Shamrock V the right to file and prosecute applications and
petitions for the Approvals and any special use permits and variances desired by Shamrock
V; 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 the Property 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 Shamrock V 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
of this 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.
13
If to EDA: Cottage Grove Economic Development Authority
12800 Ravine Parkway South
Cottage Grove MN 55016
Attn: Jennifer Levitt, 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 Shamrock V: c/o Murphy Logistics Services, Inc.
701 24th Avenue Southeast
Minneapolis, MN 55414
Attn: Richard T. Murphy, Jr.
and D. Thomas Griep
c/o Murphy Logistics Services, Inc.
701 24th Avenue Southeast
Minneapolis, MN 55414
with a copy to: William J. O’Brien
DeWitt LLP
2100 AT&T Tower
901 Marquette Avenue
Minneapolis, MN 55402
14. Default; Remedies. If either EDA or Shamrock V 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 Shamrock V, 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, Shamrock V’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 Shamrock V as agreed and final liquidated damages. In no event shall
Shamrock V be entitled to record a notice of Lis Pendens against the Property, unless Shamrock
V 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.
15. Cumulative Rights. No right or remedy conferred or reserved to EDA or
Shamrock V 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.
14
16. Entire Agreement; 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. Binding 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. Shamrock V’s Assignment. Shamrock V may assign this Agreement without the
prior written consent of the EDA (but with written notice to EDA). No assignment shall relieve
Shamrock V from its obligations under this Agreement.
19. Governing 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 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.
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.
\[remainder of page intentionally blank\]
15
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 ________________________________
Jennifer Levitt
Its Executive Director
16
SHAMROCK INVESTMENTS V, LLC
By:___________________________
Richard T. Murphy, Jr.
Its: Chief Manager
17
EXHIBIT A
LEGAL DESCRIPTION AND DEPICTION OF THE PROPERTY
A-1
COTTAGE GROVE
ECONOMIC DEVELOPMENT AUTHORITY
WASHINGTON COUNTY
STATE OF MINNESOTA
RESOLUTION NO. EDA 2019-006
RESOLUTION REGARDING AN APPLICATION BY RENEWAL BY ANDERSEN, LLC
FOR MINNESOTA INVESTMENT FUNDS
BE IT RESOLVED that the City of Cottage Grove Economic Development Authority
(EDA) act as the legal sponsor for the project contained in the Minnesota Investment
Fund Application to be submitted on or about May 14, 2019 and that EDA President and
EDA Executive Director are hereby authorized to apply to the Department of
Employment and Economic Development for funding of this project on behalf of
Renewal by Andersen, LLC.
BE IT FURTHER RESOLVED that the EDA is the legal authority to apply for financial
assistance, and the institutional, managerial, and financial capability to administer the
proposed project.
BE IT FURTHER RESOLVED that the EDA has not violated any Federal, State, or local
laws pertaining to fraud, bribery, kickbacks, collusion, conflict of interest or other
unlawful or corrupt practice.
BE IT FURTHER RESOLVED that upon approval of its application by the State, the
EDA may enter into a Grant Contract with the State of Minnesota for the approved
project, and that City of Cottage Grove Economic Development Authority certifies that it
will comply with all applicable laws, statutes, regulations and rules as stated in the Grant
Contract and described in the Project Compliance Certification of the Application.
AS APPLICABLE, BE IT FURTHER RESOLVED that the EDA has obtained credit
reports and credit information on Renewal by Andersen. Upon review by the EDA and
EDA’s Legal Counsel, LeVander, Gillen, and Miller, P.A., no adverse findings or
concerns regarding, but not limited to, tax liens, judgments, court actions, and filings
with state, federal and other regulatory agencies were identified. Failure to disclose any
such adverse information could result in revocation or other legal action.
NOW, THEREFORE BE IT RESOLVED that EDA President Myron Bailey and EDA
Executive Director Jennifer Levitt, or their successors in office, are hereby authorized to
execute the Grant Contract and amendments, thereto, as are necessary to implement
the project on behalf of the EDA.
I CERTIFY THAT the above resolution was adopted by the EDA on May 14, 2019.
SIGNED: _____________________________ ________
Myron Bailey, EDA President Date
____________________________________ _________
Jennifer Levitt, EDA Executive Director Date
WITNESSED: ___________________________ _________
Notary Date
COTTAGE GROVE
ECONOMIC DEVELOPMENT AUTHORITY
WASHINGTON COUNTY
STATE OF MINNESOTA
RESOLUTION NO. EDA 2019-007
RESOLUTION IN SUPPORT OF A JOB CREATION FUND APPLICATION IN CONNECTION WITH
RENEWAL BY ANDERSEN, LLC
WHEREAS, the City of Cottage Grove Economic Development Authority (the "EDA") of Cottage
Grove, MN, desires to assist Renewal by Andersen, LLC, a manufacturing of custom windows and
doors, with the construction of a new warehouse facility and machinery and equipment related to the
project.
WHEREAS, the EDA understands that Renewal by Andersen, LLC, through and with the support of
the EDA, intends to submit to the Minnesota Department of Employment and Economic Development
an application for an award and/or rebate from the Job Creation Fund Program; and,
WHEREAS, the EDA held a meeting on May 14, 2019, to consider this matter.
NOW, THEREFORE, BE IT RESOLVED that, after due consideration, the EDA President and EDA
Executive Director of the EDA hereby express their approval of the project proposed by Renewal by
Andersen, LLC and its application for an award and/or rebate from the Job Creation Fund Program.
________________________________________
Myron Bailey, EDA President
ATTEST:
________________________________________
Jennifer Levitt, EDA Executive Director