HomeMy WebLinkAbout4.3b Renewal By Andersen Purchase Agreement (RbA 19.34 ACRES)
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this “Agreement”) is entered into as of
November 1, 2021 (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 Renewal by Andersen LLC, a Minnesota limited liability company (“Renewal” 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 19.34 acres of
unimproved real property, which real property is described as Lot A, Subdivision Cd 3290,
Glengrove Industrial Park 8th Addition (PID# 2002721430014), located in Cottage Grove,
Washington County, Minnesota, legally described and depicted on Exhibit A (the “Property”).
Recital No. 2. EDA is the contract purchaser of the Property and shall purchase the
Property from Owner and convey the Property to Renewal on the terms and conditions of this
Agreement.
NOW, THEREFORE, Renewal 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 Renewal, and Renewal shall purchase the Property from EDA.
1.2. Purchase Price. The purchase price to be paid by Renewal to EDA for the
Property shall be Three Dollars and 50/100 ($3.50) multiplied by 842,450 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 and
00/100s Dollars ($2,948,575.00) 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 following the
Effective Date, EDA shall cause to be delivered to Renewal (a) copies of any surveys, soil tests,
environmental reports, and any other studies and/or site analyses previously conducted on the
Property and in the possession of EDA, and (b) copies of existing title work for the Property and
in the possession of EDA (the “Due Diligence Materials”). EDA makes no representations or
warranties regarding the accuracy of the Due Diligence Materials. If Buyer so requests, Seller
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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. Renewal’s Investigations. For a period up to the Closing Date, EDA shall allow
Renewal and Renewal’s agents access to the Property without charge and at all times for the
purpose of Renewal’s investigation and testing of the Property, including surveying and testing of
soil and groundwater (“Renewal’s Investigations”); provided, however, Renewal shall not
perform any invasive testing unless (a) EDA gives its prior written approval of Renewal’s
consultant that will perform the testing, which approval shall not be unreasonably withheld,
conditioned or delayed, and (b) Renewal gives EDA reasonable prior notice of such testing. EDA
shall have the right to accompany Renewal during any of Renewal’s Investigations of the Property.
Renewal shall provide to EDA copies of all third-party, non-confidential written test results and
reports conducted as part of Renewal’ Investigations. Except as otherwise provided herein,
Renewal agrees to pay all of the costs and expenses associated with Renewal’s Investigations, to
cause to be released any lien on the Property arising as a result of Renewal’s Investigations and to
repair and restore, at Renewal’ expense, any damage to the Property caused by Renewal’s
Investigations. Renewal shall indemnify and hold EDA and the Property harmless from all costs
and liabilities, including, but not limited to, reasonable attorneys’ fees, arising from Renewal’
Investigations. The indemnification obligations provided herein shall survive the termination or
cancellation of this Agreement. Notwithstanding the foregoing, within thirty (30) days following
the Effective Date, EDA shall, at EDA’s expense, provide Renewal with the AUAR (alternative
urban area review) of the Property. If this Agreement is terminated based upon any environmental
condition as herein provided, and EDA requests, Renewal shall give EDA copies of any and all
AUAR, Phase I and/or Phase II reports obtained by Renewal, if any.
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 Renewal written notice of such condemnation, taking or
damage. After receipt of written notice of such condemnation, taking or damage (from EDA or
otherwise), Renewal shall have the option (to be exercised in writing within thirty (30) days of
receipt of such written notice from EDA) either (a) to require EDA to (i) convey the Property at
Closing (as defined in Section 6) to Renewal in its damaged condition, upon and subject to all of
the other terms and conditions of this Agreement without reduction of the Purchase Price, (ii)
assign to Renewal at Closing all of EDA’s right, title and interest in and to any claims EDA may
have to insurance proceeds, condemnation awards and/or any causes of action with respect to such
condemnation or taking of or damage to the Property or access thereto, and (iii) pay to Renewal 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
written notice of such termination to EDA, whereupon this Agreement shall be terminated, the
Earnest Money shall be refunded to Renewal and thereafter neither party shall have any further
obligations or liabilities to the other, except for such obligations as survive termination of this
Agreement. If the right to terminate this Agreement is not exercised in writing within such thirty
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(30) day period, such right shall be deemed to have been waived. EDA shall not designate counsel,
appear in, or otherwise act with respect to the condemnation proceedings without Renewal’ prior
written consent, which consent shall not be unreasonably withheld.
5. Contingencies.
5.1. Renewal’s Contingencies.
A. Unless waived by Renewal in writing, Renewal’s obligation to
proceed to Closing shall be subject to (a) performance by EDA of its obligations
hereunder, (b) the continued accuracy of EDA’s representations and warranties
provided in Section 9.1, and (c) Renewal’s satisfaction, in Renewal’s sole
discretion, as to the contingencies described in this Section 5.1 within the time
periods set forth below:
(1) On or before the Closing Date, Renewal shall have
determined, in its sole discretion, that it is satisfied with (a) the results of
and matters disclosed by Renewal’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, Renewal 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 Renewal, 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, Renewal shall have received
from Title an irrevocable commitment to issue a title insurance policy for
the Property in a form and substance satisfactory to Renewal in Renewal’s
sole discretion, not disclosing any encumbrance not acceptable to Renewal
in Renewal’s sole discretion (the “Approved 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.
(5) On or before the Closing Date, Renewal shall have
determined that it is satisfied with the books and records in EDA’s
possession, if any, including site plans, surveys, engineering or
environmental reports associated with the Property.
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(6) On or before the Closing Date, Renewal shall have secured
financing that is satisfactory to Renewal in Renewal’s sole discretion for the
purpose of acquiring and constructing the Proposed Use.
(7) On or before the Closing Date, Renewal shall have reviewed
and approved the ALTA Survey of the Property.
(8) On or before the Closing Date, Renewal shall have reviewed
and approved the AUAR of the Property.
(9) On or before the Closing Date, Renewal shall have obtained
approval of the transaction by the Board of Directors of Renewal.
(10) On or before the Closing Date, Renewal shall have approved
the forms of all closing documents.
(11) EDA shall have performed and satisfied all agreements,
covenants and conditions required pursuant to this Agreement to be
performed and satisfied by EDA prior to the Closing Date.
(12) All representations and warranties of EDA contained in this
Agreement shall be accurate as of the Closing Date.
The foregoing contingencies are for Renewal’s sole and exclusive benefit
and one (1) or more may be waived in writing by Renewal in its sole discretion.
EDA shall reasonably cooperate with Renewal’s efforts to satisfy such
contingencies, at no out of pocket cost to EDA or assumption of any obligation or
liability by Renewal except as otherwise provided herein. Renewal shall bear all
cost and expense of satisfying Renewal’s contingencies. If any of the foregoing
contingencies have not been satisfied on or before the applicable date, then this
Agreement may be terminated, at Renewal’s option, by written notice from
Renewal to EDA. Such written notice must be given on or before the applicable
date, or Renewal’s right to terminate this Agreement pursuant to this Section shall
be waived. If Renewal terminates this Agreement pursuant to this Section, the
Earnest Money shall immediately be refunded to Renewal. Upon termination,
neither party shall have any further rights or obligations against the other regarding
this Agreement or the Property, except for such obligations as survive termination
of this Agreement.
B. If Renewal elects not to exercise any of the contingencies set out
herein, such election may not be construed as limiting any representations or
obligations of EDA set out in this Agreement, including, without limitation, any
indemnity or representations with respect to environmental matters.
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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. Renewal shall have performed and satisfied all agreements,
covenants and conditions required pursuant to this Agreement to be performed and
satisfied by Renewal prior to the Closing Date.
C. All representations and warranties of Renewal contained in this
Agreement shall be accurate as of the Closing Date.
EDA may in its sole discretion waive any of the conditions precedents set
out in this Section.
6. Closing. The closing of the purchase and sale contemplated by this Agreement (the
“Closing”) shall occur on or before March 31, 2022 (the “Closing Date”); provided, however,
Renewal shall have the right and option to extend the Closing Date for up to two (2) periods of
thirty (30) days each. Renewal shall exercise its right and option to extend the Closing Date, if at
all, by giving EDA notice of such election on or before the Closing Date, as the same may be
extended. EDA agrees to deliver legal and actual possession of the Property to Renewal 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 Renewal the following:
A. Warranty Deed. A warranty deed conveying title to the Property
to Renewal, free and clear of all encumbrances, except the Permitted Encumbrances
(the “Deed”).
B. Recertification of Representations and Warranties. EDA shall
provide Renewal with a certificate recertifying that the representations and
warranties set forth in Section 9 of this Agreement are true and correct as of the
Closing Date.
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.
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E. Settlement Statement. A settlement statement with respect to this
transaction.
F. Copies of Resolutions. EDA shall provide Renewal 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,
Renewal’ CUP, Renewal’ site plan, zoning, and such other governmental approvals
as may be required for Renewal’ Proposed Use.
G. General Deliveries. All other documents reasonably determined by
Title to be necessary to transfer the Property to Renewal and to evidence that EDA
(a) has satisfied all monetary indebtedness with respect thereto, (b) has obtained
such termination statements or releases from such secured creditors as may be
necessary to ensure that 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 Renewal with respect to the Property with the so-called “standard
exceptions” deleted, and (e) has duly authorized the transactions contemplated
hereby.
6.2. Renewal Closing Documents and Deliveries. On the Closing Date,
Renewal 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.
C. Evidence of Authority. Renewal shall provide EDA with copies of
the resolutions showing Renewal has met with necessary requirements to acquire
the Property in accordance with this Agreement together with such proceedings,
instruments and documents as may be reasonably required by Title as a condition
precedent to issuing the Title Policy in Renewal’ name.
D. General Deliveries. All other documents reasonably determined by
Title to be necessary to evidence that Renewal has duly authorized the transactions
contemplated hereby and evidence the authority of Renewal to enter into and
perform this Agreement and the documents and instruments required to be executed
and delivered by Renewal pursuant to this Agreement, or may be required of
Renewal under applicable law, including any purchaser’s affidavits or revenue or
tax certificates or statements.
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7. Prorations. EDA and Renewal 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. Renewal shall pay all premiums for any title insurance
policy it desires with respect to the Property. Renewal and EDA shall each pay one half
(1/2) of any reasonable closing fee or charge imposed by Title.
7.2 Transfer Taxes. EDA shall pay all state deed tax regarding the Deed.
7.3 Recording Costs. Renewal will pay all recording costs with respect to the
recording of the Deed and for the recording of any mortgage required by Renewal, 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 Renewal on a daily basis as of 12:00 a.m. CT on the Closing Date based
upon a calendar fiscal year, with EDA paying those allocable to the period prior to the
Closing Date and Renewal being responsible for those allocable to the Closing Date and
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. Renewal 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 Renewal’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 Renewal on a daily basis as of the Closing Date, with EDA paying those
allocable to the period prior to the Closing Date and Renewal being responsible for those
allocable to the Closing Date and subsequent thereto.
7.6 AUAR. EDA shall pay all costs and expenses related to the AUAR of the
Property.
7.7 Attorneys’ Fees. EDA and Renewal 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-
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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 Renewal’s Objections. Within twenty (20) days after Renewal’s receipt of
the last of the Title Evidence, Renewal may make written objections (“Objections”) to the
form or content of the Title Evidence. The Objections may include, without limitation, any
easements, restrictions or other matters which may interfere with the Proposed Use of the
Property or matters which may be revealed by the Survey. Any matters reflected on the
Title Evidence which are not objected to by Renewal within such time period or waived
by Renewal in accordance with Section 8.2(B) shall be deemed to be permitted
encumbrances (“Permitted Encumbrances”). 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. Renewal
shall have the renewed right to object to the Title Evidence as the same may be revised or
endorsed from time to time.
8.2 EDA’s Cure. EDA shall be allowed twenty (20) days after the receipt of
Renewal’s Objections to cure the same but shall have no obligation to do so. If such cure
is not completed within said period, or if EDA elects not to cure such Objections, Renewal
shall have the option to do any of the following:
A. Terminate this Agreement with respect to all of the Property.
B. Waive one or more of its objections and proceed to Closing.
If Renewal so terminates this Agreement, neither EDA nor Renewal shall be liable to the
other for any further obligations under this Agreement (except for such obligations as
survive termination of this Agreement) and the Earnest Money shall be refunded to
Renewal.
9. Warranties and Representations.
9.1 By EDA. EDA warrants and represents the following to Renewal, and
acknowledges that Renewal has relied on such representations and warranties in agreeing
to enter into this Agreement:
A. This Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of EDA enforceable in
accordance with its terms. EDA has been duly formed under the laws of the State
of Minnesota and is in good standing under the laws 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
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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.
D. To EDA’s knowledge, there are no actions, suits or proceedings
pending or threatened against or affecting EDA or any of its properties, before any
court or arbitrator, or any governmental department, board, agency or other
instrumentality which in any of the foregoing (a) challenges the legality, validity or
enforceability of this Agreement, or (b) if determined adversely to EDA, would
have a material adverse effect on the ability of EDA to perform its obligations under
this Agreement.
E. EDA has not received written notice, and has no knowledge, of (a)
any pending or contemplated annexation or condemnation proceedings, or purchase
in lieu of the same, affecting or which may affect all or any part of the Property, (b)
any proposed or pending proceeding to change or redefine the zoning classification
of all or any part of the Property, (c) any proposed changes in any road 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
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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 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.
J. EDA has the right to acquire the Property from Owner in sufficient
time to perform its obligations under this Agreement in a timely manner.
K. There will be no indebtedness or sums due attributable to the
Property which will remain unpaid after the Closing Date.
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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. EDA represents and warrants that the
foregoing individual is the representative of EDA most knowledgeable regarding the
Property.
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 Renewal shall fail to notify EDA in writing of
such breach within two (2) years after the Closing Date, and provided further that EDA
shall have no liability with respect to a breach of the representations and warranties set
forth in this Agreement if Renewal has actual knowledge of EDA’s breach thereof prior to
Closing and Renewal consummates the acquisition of the Property as provided herein.
Renewal acknowledges and agrees that, except as expressly specified in this
Agreement and/or in any documents executed and delivered by the EDA at Closing, EDA
has not made, and EDA hereby specifically disclaims, any representation, warranty or
covenant of any kind, oral or written, expressed or implied, or rising by operation of law,
with respect to 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, or any other matter or
item regarding the physical condition of the Property. Renewal agrees that except as
expressly specified in this Agreement and/or in any documents executed and delivered by
the EDA at Closing, Renewal shall accept 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. Renewal is an experienced purchaser of property such as
the Property and Renewal 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 Renewal. Renewal warrants and represents the following to EDA, and
acknowledges that EDA has relied on such representations and warranties in agreeing to
enter into this Agreement:
A. Renewal has all requisite authority to enter into this Agreement and
to perform all of its obligations under this Agreement.
B. The execution, delivery and performance by Renewal of this
Agreement will not (a) violate any provision of any law, statute, rule or regulation
or any order, writ, judgment, injunction, decree, determination or award of any
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court, governmental agency or arbitrator presently in effect having applicability to
Renewal, (b) violate or contravene any provision of the articles of incorporation or
bylaws of Renewal, 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 Renewal is a party or by which it or any of its properties may be bound.
The representations, warranties and other provisions of this Section 9.2 shall survive
Closing; provided, however, Renewal shall have no liability with respect to any breach of a
particular representation or warranty if EDA shall fail to notify Renewal in writing of such breach
within two (2) years after the Closing Date.
10. Additional Obligations of EDA.
10.1 Licenses and Permits. EDA shall transfer to Renewal all transferable
rights, if any, in any permits or licenses held by EDA with respect to the Property. EDA
shall execute all applicable transfer forms and applications to facilitate and effect any such
transfer and to cooperate fully with Renewal in its efforts to obtain all of the necessary
licenses and permits for the Proposed Use, at no out-of-pocket cost to EDA, or the
assumption of any obligations or liabilities by EDA.
10.2 Condition of 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 Renewal 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 Renewal may dispose of any trash or personal property remaining on the
Property as of the Closing Date in Renewal’ sole discretion and EDA agrees to pay for all
costs and expenses incurred by Renewal with respect to the transport and/or disposal of the
personal property within ten (10) days after receipt of an invoice from Renewal.
10.3 Further Assurances. From and after the Closing Date, EDA agrees to
execute, acknowledge and deliver to Renewal such other documents or instruments of
transfer or conveyance as may be reasonably required to carry out its obligations pursuant
to this Agreement.
10.4 Non-Assumption of Contracts or Other Obligations. The parties
understand and agree that Renewal is only acquiring certain of EDA’s real property assets
and that this Agreement and any related agreements shall not be construed to be in any
manner whatsoever an assumption by Renewal of any agreements, indebtedness,
obligations or liabilities of EDA which are owing with respect to the operation of the
Property prior to the Closing Date.
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.
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10.6 Approvals. Renewal may elect to seek certain approvals in order for
Renewal 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 Renewal’s efforts to obtain the Approvals at or prior to Closing. EDA
hereby grants Renewal the right to file and prosecute applications and petitions for the
Approvals and any special use permits and variances desired by Renewal; provided,
however, any special use permits or variances shall be contingent on the occurrence of the
Closing and shall not be binding upon EDA or the Property unless and until the Closing
occurs. EDA, at no out-of-pocket cost to EDA, or the assumption of any obligations or
liabilities by EDA, agrees to cooperate with Renewal in the filing and prosecution of such
applications and petitions, including the filing of the same in EDA’s name, if required.
10.7 Property Acquisition / Farm Lease. EDA shall acquire the Property from
Owner in sufficient time to perform EDA's obligations under this Agreement in a timely
manner. On or before the Closing, EDA shall lawfully terminate the lease with the farmer
with respect to the Property such that EDA may convey the Property to Renewal free and
clear of such tenancy.
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. Attorneys
for each party shall be authorized to give and receive notices for each such party.
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
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If to Renewal:
If by mail: Renewal by Andersen LLC
100 4th Avenue North
Bayport, MN 55003
Attention: Director, Real Estate Services
with a copy to: Renewal by Andersen LLC
100 4th Avenue North
Bayport, MN 55003
Attention: Chief Legal Officer
If by personal service or overnight courier:
Renewal by Andersen LLC
5909 Omaha Avenue
Oak Park Heights, MN 55082
Attention: Director, Real Estate Services
With a copy to: Renewal by Andersen LLC
5909 Omaha Avenue
Oak Park Heights, MN 55082
Attention: Chief Legal Officer
13. Default; Remedies. In addition to the rights granted to the parties pursuant to
Minn. Stat. Sec. 559.21, if either EDA or Renewal fails to perform any of its obligations under this
Agreement in accordance with its terms, and such failing party does not cure such failure within
thirty (30) days after written notice thereof from the other party (provided that no notice or cure
period shall be required for obligations to be performed at Closing), then the other party shall have
the right to terminate this Agreement by giving the failing party written notice of such election. In
the case of any default by Renewal, EDA’s sole and exclusive remedies shall be termination of
this Agreement as provided above and, upon any such termination, the Earnest Money shall be
forfeited to Seller as agreed and final liquidated damages. In the case of any default by EDA,
Renewal’ 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 Renewal as agreed
and final liquidated damages. In no event shall Renewal be entitled to record a notice of Lis
Pendens against the Property, unless Renewal is pursuing specific performance of this Agreement.
In any action or proceeding to enforce this Agreement or any term hereof, the prevailing party
shall be entitled to recover its reasonable costs and attorneys’ fees.
14. Cumulative Rights. No right or remedy conferred or reserved to EDA or Renewal
is intended to be exclusive of any other right or remedy herein or by law provided, but each shall
be cumulative in and in addition to every other right or remedy existing at law, in equity or by
statute, now or hereafter.
15. Entire Agreement; Modification. This written Agreement constitutes the
complete agreement between the parties with respect to this transaction and supersedes any prior
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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.
16. 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.
17. Governing Law. The provisions of this Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota.
18. 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.
19. Represented by Counsel. Each party has been represented and advised by counsel
in the transaction contemplated hereby.
20. Time of the Essence. Time is of the essence of this Agreement.
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IN AGREEMENT, the parties hereto have hereunto set their hands as of the Effective
Date.
COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By ________________________________
Myron Bailey
Its President
By ________________________________
Jennifer Levitt
Its Executive Director
RENEWAL BY ANDERSEN LLC
By:
Name: Alan E. Bernick
Title: Senior Vice President, Chief Legal Officer
A-1
EXHIBIT A
Lot A, Subdivision Cd 3290, Glengrove Industrial Park 8th Addition located in Cottage Grove,
Washington County, Minnesota
PID# 2002721430014