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HomeMy WebLinkAbout4.a. EX canada circle PA EXECUTIVE SUMMARY Port Authority Date: March 20, 2018 AGENDA ITEM: Motion to Approve the Form of the Canada Circle Purchase Agreement. AGENDA SECTION: Old Business PREPARED BY: Kim Lindquist, Deputy Director AGENDA NO. 4.a. ATTACHMENTS: Purchase Agreement APPROVED BY: LJM RECOMMENDATION: Motion to approve the form of the purchase agreement and authorize execution of the agreement subject to completion of the notice and hearing requirements under Minnesota Statutes section 469.065 ISSUE The Port Authority discussed last month the sale of the Canada Circle land to Nate Bry for his light manufacturing and retail building. At the meeting he provided some information regarding the potential building size, exterior elevations, and proposed uses. The Port Authority was supportive of the project and indicated they would support the property sale. At tonight’s meeting, staff is providing a Purchase Agreement drafted by the City Attorney and reviewed by Mr Bry’s attorney. The Port Authority is being asked to approve the form of the purchase agreement so that the buyer can be confident in the specifics of the sale. However, by law, the Port Authority must hold a public hearing before selling or conveying land. The Port Authority will be asked to find that the sale is in the best interests of the City and its citizens, and that the sale furthers the Port Authority’s plans for industrial development. After the hearing the Port Authority will be asked to approve the final Purchase Agreement and the Council will also be asked to approve the Agreement. The agreement is very similar to others entered into by the City when selling other public lands. The property is in the process of being platted to reflect a lot, generally consistent with the drawing forwarded to the Port Authority last month and found in the packet. The current Public Works driveway which traverses a portion of the site will be relocated, with the majority moved off of the property for sale. CONCLUSION The Port Authority is being asked to approve a purchase agreement as to form relating to the Canada Circle site. If there are issues not addressed by the purchase agreement, now would be the time to raise any requested modifications. After this time, staff will be working to get the property platted, schedule a public hearing for the sale, and work with the future property owner to obtain final planning approvals. 518494v3 BDL RS215-4 PURCHASE AGREEMENT 1. PARTIES. This Purchase Agreement (the “Purchase Agreement”) is made on this _____ day of _____________, 2018 (the “Effective Date”), by and between the Rosemount Port Authority, a body corporate and politic in the State of Minnesota, and the City of Rosemount, a Minnesota municipal corporation (together, the “Seller”) and Symnabdre properties LLC, a Minnesota limited liability company (the “Buyer”). 2. SUBJECT PROPERTY. The Seller is the owner of that certain real estate located in the City of Rosemount, Dakota County, Minnesota, legally described on the attached Exhibit A attached hereto, and shown on the attached Exhibit B attached hereto, together with all rights, privileges, interests, licenses, claims, easements, benefits, covenants, conditions and servitudes of any type or nature, whether now owned or acquired, which are appurtenant to or otherwise benefit the property, and all of Seller’s rights, title and interest in and access to all public ways adjoining the same (the “Property”). The Property consists of vacant real estate. 3. OFFER/ACCEPTANCE. In consideration of the mutual agreements herein contained, the Buyer offers and agrees to purchase and the Seller agrees to sell the Property. 4. CONTINGENCIES. The obligations of Buyer under this Purchase Agreement are contingent upon each of the following (the “Contingencies”): A. Representations and Warranties. The representations and warranties of Seller contained in this Purchase Agreement must be true now and on the Closing Date as if made on the Closing Date and Seller shall have delivered to Buyer at Closing a certificate dated as of the Closing Date, signed by an authorized representative of Seller, certifying that such representations and warranties are true as of the Closing Date (the “Bring-down Certificate”) B. Performance of Seller’s Obligations. The Seller shall have performed all of the obligations required to be performed by Seller under this Purchase Agreement, as and when required by this Purchase Agreement. Seller’s obligations include the following: (i) Seller shall allow Buyer and Buyer’s agents access to the Property without charge and at all reasonable times, as provided in Section 9 herein. (ii) Seller shall, without charge to Buyer, cooperate in Buyer’s attempts to obtain all governmental approvals necessary in Buyer’s judgment in order to allow Buyer to use the Property in the manner intended by Buyer. Buyer acknowledges that the property is under two different zoning districts and that rezoning of the property will need to occur to allow proposed uses. The proposed uses include; retail, indoor recreational, assembly and light manufacturing, which will require rezoning to PUD. The Buyer agrees to obtain, at its sole discretion, cost and expense, a Planned Unit Development 2 518494v3 BDL RS215-4 (PUD). Buyer acknowledges that by Seller entering into this Agreement, Seller is not making any representations on behalf of the City of Rosemount that any of the governmental approvals that will be needed by Buyer from the City will necessarily be approved by the City. (iii) Seller shall deliver the documents to Buyer pursuant to Section 6 herein. C. Tests and Studies. The Buyer being satisfied with the results of, and matters disclosed by, all existing files and reports, surveys, inspections, feasibility tests, site plan/location within the development, site conditions, environmental conditions soil tests, engineering inspections, hazardous waste, environmental reviews, and any other tests, studies, reviews or investigations that Buyer conducts (the nature and scope of which shall be determined solely by Buyer) regarding the Property; D. Title. Condition of title being satisfactory to the Buyer following the Buyer’s examination of title as provided in Section 13 herein; E. Governmental Approvals. The Buyer obtaining all public or private land use approvals deemed necessary by the Buyer for the Buyer’s use of the Property (the “Approvals”). The approvals include, but are not limited to, amendment to Zoning Ordinance or PUD approval, design review, site and building plan review and approvals, subdivision approvals (lot split, lot combination or plat) building permits, drainage and detention permits, property disturbance permits, sign approvals and permits, utility permits, and other governmental and third-party approvals and environmental assessment worksheets and statements and other permits and approvals. Buyer acknowledges that by Seller entering into this Agreement, the Seller is not making any representations on behalf of the City of Rosemount that any of the governmental approvals that will be needed by Buyer from the City will necessarily be approved by the City; F. Financing. The Buyer obtaining financing that is deemed necessary by the Buyer in order to finance the purchase of the Property and the development and construction of the desired improvements; G. No Condemnation. As of the Closing Date, there shall be no pending or threatened condemnation or taking of any part of the Property or any means of ingress or egress thereto or any parking therefor. H. Further Assurances. Seller, at the request of Buyer, shall have furnished, executed, and delivered such documents, instruments, certificates, notices, or other further assurances as Buyer shall reasonably request as necessary to effect complete consummation of this Purchase Agreement and the transactions contemplated by this Purchase Agreement. 3 518494v3 BDL RS215-4 I. Platting. Seller is in the process of platting the Property, and this sale is contingent upon the completion of the platting process, including but not limited to obtaining final plat approval and recording the plat. If Seller is unable to complete the platting process for any reason, this Agreement is cancelled and Seller shall return to Buyer the Earnest Money and any interest that has accrued thereto. Notwithstanding any other provision in this Agreement, this contingency is not waivable. J. Agreement to Re-Locate Access Road. The existence of an agreement for the relocation of the access road is deemed necessary by the Buyer for the Buyer’s use of the Property (the “Access Agreement”). Buyer acknowledges that by Seller entering into this Agreement, the Seller is not making any representations on behalf of the City of Rosemount that any of the Access Agreement that will be needed by Buyer from the City will necessarily be approved by the City The “Contingency Date” shall be 120 days from the Effective Date of this Purchase Agreement provided, however, that the Contingency Date relating to the Contingencies described in Sections 4(A), (G) and (H) shall expire on the Closing Date; provided further that the Contingencies described in Section 4(F) shall expire 90 days after the Effective Date; provided further the Contingencies described in Sections 4(C) and (D) shall expire 90 days after the Effective Date, provided, however, that as long as Buyer diligently and continually pursues its Approvals, Buyer shall have the right to extend the Contingency Date applicable to Approvals by one (1) thirty (30) day period, by written notice to Seller on or before the Contingency Date applicable to the Approvals. Thereupon, the Contingency Date applicable to the Approvals shall be extended and Buyer shall continue to proceed as expeditiously as possible with efforts to obtain the Approvals. If any of the foregoing contingencies have not been satisfied on or before the date specified above with respect to the identified contingency, then this Purchase Agreement may be terminated, at Buyer’s option, by written notice from Buyer to Seller delivered on or before the specified date. If any condition set forth in this Section 4 has not been satisfied or waived by Buyer before the Contingency Date applicable to such Contingency, then Buyer may, at Buyer’s option, terminate this Purchase Agreement by written notice to Seller. Upon such termination, this Purchase Agreement shall thereupon be void and the Earnest Money shall be refunded, and neither party will have any further rights or obligations to the other regarding this Purchase Agreement or the Property, except Buyer’s obligations contained in Section 9 hereof. If Buyer does not elect to terminate this Purchase Agreement, the parties shall proceed with this transaction in accordance with the terms and conditions of this Purchase Agreement. The contingencies are specifically stated and agree to be for the sole and exclusive benefit of the Buyer, and the Buyer shall have the right to unilaterally waive any contingency by written notice to the Seller. 5. EXCLUDED PERSONAL PROPERTY. There is no personal property, trade fixtures or equipment, including but not limited to, any above ground or underground storage tanks, included in the sale of the Property. 4 518494v3 BDL RS215-4 6. RECORDS AND DOCUMENTS TO BE DELIVERED. Prior to the Effective Date, the Seller shall deliver the following documents to the Buyer, at the Seller’s cost: None. Within ten (10) days of the Effective Date, Seller shall deliver to Buyer, at the Seller’s cost: (i) any appraisals, permits, plats, surveys, title reports, prior title commitments or policies, authorizations, soil test borings, engineering studies, environmental studies or reports or other reports relating to the physical condition of the Property in Seller’s possession; and (ii) any other notices, records or documents pertaining to the Property. 7. PURCHASE PRICE AND TERMS: A. CONSIDERATION: The Buyer shall pay the Seller $1.85 per square foot for a total of Three Hundred Thirty-Four Thousand Two Hundred Forty-Six and 90/100 ($334,246.90) Dollars for the Property (the “Purchase Price”). B. TERMS: 1. Earnest Money. $15,000.00 as earnest money (“Earnest Money”), which Earnest Money shall be held by the Seller and applied to the Purchase Price and shall be refundable to the Buyer if the sale contemplated hereunder fails to close due to Seller default. The Seller acknowledges delivery and sufficiency of Earnest Money. The Seller shall deposit the Earnest Money in an non-interest bearing account insured by the FDIC. All interest earned thereon shall be added to and become part of the Earnest Money. 2. Balance of Payment. The remaining balance of Three Hundred Nineteen Thousand Two Hundred Forty-Six and 90/100 ($319,264.90) Dollars shall be paid to the Seller by the Buyer at Closing. 8. CLOSING. The closing of the sale of the Property (the “Closing”) shall take place on the date that is no later than 10 days after the Buyer has satisfied or waived all contingencies listed in Section 4 above, or as otherwise mutually agreed upon by the parties (the “Closing Date”). The Closing shall take place at Rosemount City Hall, 2875 145th Street West, Rosemount, Minnesota or such other location as mutually agreed upon by the parties. Seller shall deliver possession of the Property to Buyer on the Closing Date. 9. SURVEYING, ENVIRONMENTAL INSPECTION AND SOIL TESTS. The Buyer and its agents shall have the right to enter upon the Property after the date of this Purchase Agreement for the purpose of surveying and inspecting the Property and conducting such environmental examination and soil tests as the Buyer deems necessary. The Buyer agrees to indemnify the Seller against any liens, claims, losses or damage directly attributable by the Buyer’s exercise of its right to enter and work upon the Property. The Buyer agrees to provide the Seller with a copy of any report or survey prepared as a result of such surveying, inspection, examination, or testing, upon request by the Seller. 5 518494v3 BDL RS215-4 10. DOCUMENTS TO BE DELIVERED AT CLOSING. The Seller agrees to deliver the following documents to the Buyer at Closing: A. A duly recordable quitclaim deed conveying fee simple title to the Property to the Buyer, free and clear of any mortgages, liens or encumbrances other than matters created by or acceptable to the Buyer. B. An affidavit from the Seller indicating that on the Closing Date there has been no skill, labor, or material furnished to the Property for which payment has not been made or for which mechanics’ liens could be filed; and that there are not other unrecorded interests in the Property, together with whatever standard owner’s affidavit and/or indemnity, which may be required by Title Company, sufficient to remove any exception in the Buyer’s policy of title insurance for mechanics’ and materialmens’ liens and rights of parties in possession; C. Affidavit of the Seller confirming that the Seller is not a foreign person within the meaning of Section 1445 of the Internal Revenue Code; D. A completed Minnesota Well Disclosure Certificate or a statement that Seller is not aware of any wells on the Property; and E. A Bring-down Certificate from Seller. F. Any notices, certificates, and affidavits regarding any private sewage systems, underground storage tanks, and environmental conditions as may be required by Minnesota statutes, rules or ordinances. G. All other documents reasonably determined by Buyer or Title Company to be necessary to transfer the Property to Buyer free and clear of all encumbrances except those which are permitted by Buyer pursuant to Section 13 herein. 11. CLOSING COSTS AND RELATED ITEMS. The Seller shall be responsible for the following closing costs and related items: (1) all recording fees and charges relating to the filing of any instrument required to make title marketable; (2) any fees incurred for obtaining the Commitment (including any related search fees); (3) any state deed tax, conservation fee or other federal, state or local documentary or revenue stamps or transfer tax with respect to the quit claim deed to be delivered by the Seller; (4) its own legal and accounting fees associated with this transaction; and (5) all costs and expenses related to the performance of Seller’s obligations under Section 4B of the Purchase Agreement. The Buyer shall be responsible for the following closing costs and related items: (1) the cost of any Survey of the Property required by the Buyer; (2) all premiums required for issuance of any Title Policy; (3) the fees of any soil tests, environmental assessments, inspection reports, appraisals, or other tests or reports ordered by Buyer; (4) recording fees and charges related to the filing of the deed; (5) all costs associated with any land use approvals 6 518494v3 BDL RS215-4 that are requested or required by the Buyer; and (6) its own legal and accounting fees associated with this transaction. All closing fees charged by the Title Company and any escrow fees charged by any escrow agent engaged by the parties in connection with this Purchase Agreement shall be split equally between the Buyer and Seller. 12. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. A. The Seller shall be responsible for all real estate taxes, including any deferred real estate taxes, penalties or interest, for the years prior to the year in which Closing occurs. Real estate taxes that are due and payable in the year of Closing shall be prorated between the Buyer and the Seller. B. The Seller shall pay all special assessments levied and constituting a lien against the Property as of the Closing Date, including, without limitation, special assessments certified for payment with the real estate taxes, any installments of special assessments, including interest payable with general real estate taxes in the year of Closing, and all deferred assessments. The Buyer shall assume payment of any special assessments that are pending, but not levied against the Property as of the Closing Date. 13. TITLE EXAMINATION. The Buyer’s examination of title to the Property shall be conducted as follows: A. SELLER’S TITLE EVIDENCE. Seller shall, within thirty (30) days after the date of this Purchase Agreement, furnish a title insurance commitment (“Commitment”) from a title company (“Title Company”) for an ALTA Owners Policy of Title Insurance (the “Title Policy”). The Commitment shall insure title to the Property in the amount of the Purchase Price. The Commitment shall be accompanied by true and correct copies of all instruments noted as exceptions therein. B. SURVEY. Buyer may, at its sole cost and expense, within a reasonable period of time after receipt of the Commitment, cause an ALTA Survey (“Survey”) to be prepared by a Minnesota land surveyor. (the Commitment and the Survey are sometimes hereinafter referred to as the “Title Evidence”) C. BUYER’S OBJECTIONS. The Buyer shall make written objections (the “Objections”) to the form or contents of the Title Evidence, no later than 30 days after receiving the last of the Title Evidence. The Buyer’s failure to make Objections within such time period shall constitute waiver of the Objections. The Seller shall have 30 days after receipt of the Objections to cure the Objections or to supply reasonably acceptable written evidence reasonably acceptable to the Title Company and Buyer that the Objections will be cured at Closing, during which period the Closing will be postponed, as necessary. The Seller shall use all reasonable efforts to correct any Objections. If the Objections are not cured within such 30 day period, or if 7 518494v3 BDL RS215-4 Seller does not supply written evidence to the Title Company and Buyer within such 30 day period that the Objections will be cured at Closing, the Buyer will have the option to do either of the following: 1. Terminate this Purchase Agreement, by providing written notice of said termination to Seller if termination is due to the Seller’s failure to cure title objections or any other default of the Seller, the Seller shall repay the Earnest Money to the Buyer; or 2. Waive the Objections at the Buyer’s expense and proceed to close. 14. POSSESSION/CONDITION OF THE PROPERTY. The Seller shall deliver possession of the Property to the Buyer at closing in the condition as the Property existed on the date of execution of this Purchase Agreement. 15. REPRESENTATIONS AND WARRANTIES BY THE SELLER. The Seller hereby represents and warrants to the Buyer as of the Closing Date that: A. Authority. The Seller is a body corporate and politic, duly created under and subject to the laws of Minnesota; the Seller has the requisite power and authority to enter into and perform this Purchase Agreement and those closing documents signed by it; such documents have been or will be duly authorized by all necessary action on the part of the Seller and have been or will be duly executed and delivered; such execution, delivery and performance by the Seller of such documents does not conflict with or result in a violation of any judgment, order, or decree of any court or arbiter to which the Seller is a party; such documents are valid and binding obligations of the Seller, and are enforceable in accordance with their terms, subject to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the rights and remedies of creditors generally and principles of equity. B. Rights of Others to Purchase the Property. The Seller has not entered into any other contracts for the sale of the Property, nor are there any rights of first refusal or options to purchase the Property or any other rights of others that might prevent the sale of the Property contemplated by this Agreement. C. Legal Proceedings. There is no action, litigation, investigation, condemnation or proceeding of any kind pending or, to the best of the Seller’s knowledge without investigation, threatened against the Seller or any portion of the Property, and Seller has no actual knowledge that any such action is contemplated. D. Wells. There are not any wells located on the Property. E. Individual Sewage Treatment Systems. There are not any individual sewage treatment systems located on the Property. 8 518494v3 BDL RS215-4 F. Title. The Seller has good, indefeasible and marketable fee simple title to the Property. G. Leases. There are no third parties in possession of the Property, or any part thereof; and there are no leases, oral or written, affecting the Property or any part thereof. H. Defects. The Seller is not aware of any latent or patent defects in the Property, such as wetlands, sinkholes, weak soils, unrecorded easements and restrictions. I. Methamphetamine Production. To the best of the Seller’s knowledge, methamphetamine production has not occurred on the Property. J. Foreign Status. The Seller is not a “foreign person” as such term is defined in the Internal Revenue Code. K. Legal Compliance and Use of the Property. The Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions pertaining to and affecting the Property and the Seller shall continue to comply with such laws, ordinances, regulations, statutes, rules and restrictions. To the best knowledge of Seller, the Property does not violate any federal, state, local or other governmental building, zoning, health, safety, platting, subdivision or other law or regulation, or any applicable private restriction. L. Seller’s Defaults. To the best knowledge of Seller, Seller is not in default concerning any of its obligations or liabilities regarding the Property. M. Eminent Domain. To the best knowledge of Seller, there is no existing or proposed or threatened eminent domain or similar proceeding, or private purchase in lieu of such a proceeding which would affect the Property in any material way. N. Taxes and Assessments. To the best knowledge of Seller, all real property taxes, and all Seller’s personal property taxes relating to the Property, if any, excepting those for the current tax year which are not yet overdue (i.e., which are still payable without interest or penalty) have been paid in full. To Seller’s actual knowledge, there is no existing or proposed assessment that has or may become a lien on the Property. O. Public Utilities. Public Utilities including water and sanitary sewer are currently available on or near the Property for Buyer’s use. P. Storage Tanks. Seller has no knowledge of any underground storage tanks on the Property. To the extent storage tanks exist on or under the Real Property, such storage tanks have been duly registered with all appropriate regulatory 9 518494v3 BDL RS215-4 and governmental bodies, and otherwise are in compliance with applicable federal, state, and local statutes, regulations, ordinances and other regulatory requirements. Q. Environmental Laws. Seller has no actual knowledge that it has stored, released, disposed of, or permitted any other party to store, release or dispose of, and to Seller's actual knowledge there has not been any storage, release or disposal of, any Hazardous Material in, on, about or from the Property, and Seller has no actual knowledge of the existence in, on or about the Property of any Hazardous Material. The term “Hazardous Materials” means asbestos, urea formaldehyde, polychlorinated biphenyls, nuclear fuel or materials; radioactive materials, explosives, known carcinogens, petroleum products and by-products, and any pollutant, contaminant, chemical, material or substance defined as hazardous or as a pollutant or a contaminant in, or the release or disposal of which is regulated by, any federal, state, county, municipal, local or other statute, ordinance or regulation that relates to or deals with human health or the environment, including, without limitation, all regulations promulgated by a regulatory body pursuant to any such statute, ordinance, or regulation, including, but not limited to, the Comprehensive Environmental Response and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601, as amended. R Reports. Seller has delivered to Buyer copies of all environmental reports related to the Property in its possession or reasonably obtainable by Seller. The Seller’s representations and warranties set forth in this Section shall be continuing and are deemed to be material to the Buyer’s execution of this Purchase Agreement and Buyer’s performance of its obligations hereunder. All such representations and warranties shall be true and correct on and as of the Closing Date with the same force and effect as if made at that time; and all of such representations and warranties shall survive the Closing and any cancellation or termination of this Purchase Agreement, and shall not be affected by any investigation, verification or approval by any party hereto or by anyone on behalf of any party hereto. The Seller agrees to defend, indemnify and hold the Buyer harmless for, from, and against any loss, costs, damages, expenses, obligations and attorneys’ fees incurred should an assertion, claim, demand, action or cause of action be instituted, made or taken, which is contrary to or inconsistent with the representations or warranties contained herein. 16. “AS IS, WHERE IS.” The Buyer acknowledges that it has inspected or has had the opportunity to inspect the Property and agrees to accept the Property “AS IS” with no right of set off or reduction in the Purchase Price. Such sale shall be without representation of warranties, express or implied, either oral or written (except for the representations and warranties in Section 15 herein), made by the Seller or any official, employee or agent of the Seller with respect to the physical condition of the Property, including but not limited to, the existence or absence of petroleum, hazardous substances, pollutants or contaminants in, on, or under, or affecting the Property or with respect to the compliance of the Property or its operation with any laws, ordinances, or regulations 10 518494v3 BDL RS215-4 of any government or other body, except as stated above. The Buyer acknowledges and agrees that the Seller has not made and does not make any representations, warranties, or covenants of any kind or character whatsoever, whether expressed or implied, with respect to warranty of income potential, operating expenses, uses, habitability, tenant ability, or suitability for any purpose, merchantability, or fitness of the Property for a particular purpose, all of which warranties the Seller hereby expressly disclaims, except as provided in Section 15 above. 17. CONDEMNATION. If, prior to the Closing, eminent domain proceedings are commenced against all or any part of the Property, the Seller shall immediately give notice to the Buyer of such fact and at the Buyer’s option (to be exercised within 15 days after the Seller’s notice), this Agreement shall terminate, in which event neither party will have further obligations under this Agreement. The Earnest Money shall be returned. If the Buyer fails to give such notice, then there shall be no reduction in the Purchase Price, and the Seller shall assign to the Buyer at the Closing all of the Seller’s right, title and interest in and to any award made or to be made in the condemnation proceedings. Prior to the Closing, the Seller shall not designate counsel, appear in, or otherwise act with respect to the condemnation proceedings without the Buyer’s prior written consent. 18. BROKER COMMISSIONS. The Buyer represents that it has not used any real estate brokerage services with respect to its purchase of the Property. The Seller and Buyer represent and warrant to each other that they have not dealt with brokers in connection with the transaction contemplated by this Purchase Agreement. Each party agrees to indemnify, defend and hold each other harmless from the claims of any broker, or real estate agent. 19. REMEDIES. If the Buyer or Seller defaults in any of the agreements herein and fails to cure said default within thirty (30) days of receipt of written notice of said default, the non- defaulting party may (i) terminate this Purchase Agreement by providing written notice to the defaulting party, (ii) seek actual damages for breach of this Purchase Agreement or (iii) seek specific performance of this Purchase Agreement; provided that any action for specific enforcement must be brought within six months after the date of the alleged breach. 20. TIME IS OF THE ESSENCE. Time is of the essence in this Agreement. If the time for performance of any obligation hereunder shall fall on a Saturday, Sunday or holiday such that the transaction contemplated hereby cannot be performed, the time for performance shall be extended to the next such succeeding day where performance is possible. 21. ASSIGNMENT. The Buyer may assign its rights under this Agreement with the written approval of the Seller, which shall not be unreasonably withheld. 22. AMENDMENT AND MODIFICATION. No amendment, modification or waiver of any condition, provision or term of this Purchase Agreement shall be valid or have any effect unless made in writing, is signed by the party to be bound and specifies with particularity the extent and nature of such amendment, modification or waiver. Any waiver by either party of any default by the other party shall not affect or impair any right arising from any previous or subsequent default. 11 518494v3 BDL RS215-4 23. BINDING EFFECT. This Purchase Agreement binds and benefits the parties and their successors and assigns. 24. NOTICES. Any notice, demand, request or other communication which may or shall be given or served by Seller on Buyer or by Buyer on Seller, shall be deemed has been given or served on the date the same is hand delivered or the date of receipt or the date of delivery if deposited in the United States mail, registered or certified, postage prepaid, and addressed as follows: If to the Seller: Rosemount Port Authority Attn: Executive Director 2875 145th Street West Rosemount, MN 55068-4997 AND City of Rosemount Attn: Community Development Director 2875 145th Street West Rosemount, MN 55068-4997 With a copy to: Mary Tietjen, Esq. Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 If to the Buyer: SYMNABDRE PROPERTIES Attn: Nathan A. Bry 13562 Birdsong Path Rosemount, MN 55068 With a copy to: Rachel Estrella, Esq. Dakota Law, P.L.L.C. 16233 Kenyon Ave., Suite 200 Lakeville, MN 55044 or such other address as either party may give to another party in accordance with this Section. 25. NO PARTNERSHIP OR JOINT VENTURE. Nothing in this Purchase Agreement shall be construed or interpreted as creating a partnership or joint venture between Seller and Buyer relative to the Property. 26. CUMULATIVE RIGHTS. Except as may otherwise be provided herein, no right or remedy herein conferred on or reserved by either party is intended to be exclusive of any other right or remedy provided by law, but such rights and remedies shall be cumulative in and in addition to every other right or remedy given herein or elsewhere or existing at law, equity or by statute. 12 518494v3 BDL RS215-4 27. ENTIRE AGREEMENT. This Purchase Agreement constitutes the entire agreement between the parties and no other agreement prior to this Purchase Agreement or contemporaneous herewith shall be effective except as expressly set forth or incorporated herein. 28. BINDING EFFECT. This Agreement binds and benefits the parties and their successors and assigns. 29. CONTROLLING LAW. This Agreement has been made under the substantive laws of the State of Minnesota, and such laws shall control its interpretation. 13 518494v3 BDL RS215-4 IN WITNESS WHEREOF, the parties have executed this Purchase Agreement as of the date written above. SELLER: ROSEMOUNT PORT AUTHORITY By: ____________________________________ Its: Chair By: ____________________________________ Its: Executive Director CITY OF ROSEMOUNT By:____________________________________ William Droste Its: Mayor By: ___________________________________ Clarissa Hadler Its: City Clerk 14 518494v3 BDL RS215-4 BUYER Symnabdre properties LLC _____________________________ By: Nathan A. Bry Its: President 15 518494v3 BDL RS215-4 Exhibit A Legal Description of Property 16 518494v3 BDL RS215-4 Exhibit B Depiction of Property