Board of Selectman Regular Meeting (linked)
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| Board/Commission | Board of Selectmen |
|---|---|
| Meeting Date | May 16, 2023 |
| File Size | 0.9 MB |
| OCR Status | Searchable (OCR processed) |
| Source URL | Original |
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Full Text (OCR Extracted)
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the “Agreement”), made as of the
___ day of , 2023 (the “Effective Date”), by and between
TOWN OF WATERFORD, a Connecticut municipal corporation having an address of
15 Rope Ferry Road, Waterford, Connecticut 06385 (the “Seller”), and LEARN,
a regional educational service center established pursuant to Section 10-
66a of the Connecticut General Statutes having an address of 44 Hatchetts
Hill Road, Old Lyme, Connecticut 06371 (the “Purchaser”).
RECITALS:
WHEREAS, Seller is the owner of certain real property measuring
approximately 19.96 acres and commonly known as 51 Daniels Avenue,
Waterford, Connecticut, as more particularly described on Schedule A,
attached hereto and made a part hereof (the “Town Property”); and
WHEREAS, Seller desires to convey to Purchaser, and Purchaser desires
to purchase from Seller, a portion of the Town Property measuring
approximately 15.36 acres on which is located the building commonly known
as the Southwest School and all other improvements located thereon
substantially as shown on Schedule B, attached hereto and made a part
hereof, with the exact location of the boundaries of that portion of the
Town Property to be conveyed to Purchaser to be determined by Purchaser and
Seller in accordance with this Agreement (the “Property”); and
WHEREAS, Seller desires to sell the Property to Purchaser and
Purchaser desires to purchase the Property from Seller, all in the manner
and in accordance with and subject to the terms and conditions set forth in
this Agreement; and
WHEREAS, Seller, at its sole cost and expense, desires to obtain all
subdivision (or lot division), lot line adjustment, special permit, special
exception, site plan, variance and other land use approvals and permits
necessary, if any, from all boards, commissions, committees, departments
and governmental bodies which have jurisdiction or authority over land use
and/or zoning matters related to real property located in the Town of
Waterford, Connecticut (collectively, the “Land Use Authorities”), to
separate (a) the (i) encroachments upon the Town Property by adjacent
properties located along the western boundary line of the Town Property to
the reasonable satisfaction of Purchaser (the “Encroachment Area”); (ii)
area on which the existing cell tower is located on the Town Property to
the reasonable satisfaction of Purchaser (the “Cell Tower Area”); and (iii)
area where two (2) pickleball courts are to be constructed on the Town
Property to the reasonable satisfaction of Purchaser (the “Pickleball
Courts”), from (b) the Property, in compliance with all zoning, land use,
subdivision and inland wetlands regulations of the Town (collectively, the
“Land Use Regulations”).
WHEREAS, Purchaser, at its sole cost and expense, desires to obtain
all land use approvals from all Land Use Authorities which are necessary
for Purchaser to use the Property as it intends in its sole and absolute
discretion, including without limitation the demolition of the existing
Southwest School located at the Property and the construction of a new
school to be located at the Property permitting educational and/or
institutional use.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual agreements and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and
Purchaser agree as follows:
THE PROPERTY.
1 Description. Subject to the terms and conditions of this Agreement, and
for the consideration set forth herein, Seller hereby agrees to sell,
assign and convey, and Purchaser hereby agrees to purchase, assume and
acquire, all of Seller’s right, title and interest, if any, in and to the
following (collectively, the “Premises”):
1 the Property;
2 all of Seller’s right, title and interest in and to any land lying in the
bed of any streets (open or proposed) adjacent or abutting or adjoining the
Property, together with all rights, privileges, rights of way and easements
appurtenant to the Property, including, without limitation, all minerals on
or under the Property, development rights, air rights, and any easements,
rights of way or other interests in, on or under any lands, highways,
alleys, roads, streets or rights of way abutting or adjoining the Property,
all strips and gores and rights of ingress and egress thereto, all topsoil,
gravel, sand, minerals, mineral rights, earth products, trees, shrubbery
and landscaping, and all buildings and other improvements located thereon
(collectively, the “Appurtenances”); and
3 all of Seller’s right, title and interest in and to the fixtures,
equipment, machinery and other items of tangible personal property which
are owned by Seller and which are used in the operation of the Property as
of the Effective Date, subject to depletions, replacements and additions in
the ordinary course of Seller’s business (collectively called the “Personal
Property”); and
4 any and all intangible personal property used in connection with the
ownership, operation, leasing, occupancy or maintenance of the Property,
including, without limitation, all permits, reports, approvals, licenses,
certificates, certificates of occupancy, special permits, site plan
approvals, variances, warranties, guaranties, signage rights, bonds,
utility and development rights and privileges, general intangibles,
business records, surveys, drawings, appraisals, environmental and other
physical reports, Assumed Contracts (as hereinafter defined), and plans and
specifications pertaining to the Property (collectively, the “Intangible
Property”), if any, to the extent that such Intangible Property is
benefitting, owned or caused to be prepared by Seller with respect to the
Property and not prohibited from being transferred by Seller to Purchaser.
2 Easement. Subject to the terms and conditions of this Agreement, and for
the consideration set forth herein, immediately following Closing (as
hereinafter defined) Purchaser and Seller hereby agree to grant to the
other any Easements (as hereinafter defined) pursuant to the Easement
Agreement (as hereinafter defined) if it is deemed reasonably necessary by
Seller and Purchaser with respect to Purchaser’s intended development of
the Premises.
PURCHASE PRICE AND PAYMENT.
3 Purchase Price. Purchaser agrees to pay to Seller, as the total purchase
price for the Premises, the sum of ONE and 00/100 DOLLAR ($1.00) (the
“Purchase Price”). The Purchase Price shall be payable to Seller on the
Closing Date (as hereinafter defined) by cash, certified or bank check, or
by wire transfer of immediately available federal funds. There shall be no
deposit.
4 Closing. The closing of the purchase and sale of the Premises (the
“Closing”) shall take place at the law offices of Shipman & Goodwin LLP,
265 Church Street, Suite 1207, New Haven, Connecticut 06510, or by mail, on
or before August 1, 2024 (the “Closing Date”).
INSPECTIONS AND APPROVALS.
5 Access to the Property. Seller shall permit Purchaser and Purchaser’s
agents and representatives access to the Property for the purpose of
conducting such appraisals, physical inspections and environmental
inspections of the Property as Purchaser shall deem necessary, in its sole
and absolute discretion, to determine the feasibility of the Property for
Purchaser’s intended use, including without limitation: zoning inspection,
the Title Report (as hereinafter defined), the Municipal Report (as
hereinafter defined), survey, feasibility, financing, structural, a
geotechnical examination and environmental investigation of the surface and
subsurface conditions of the Property (including, but not limited to, soil,
groundwater, indoor air), a hazardous building materials survey, an
environmental site assessment and all other matters in Purchaser’s sole and
absolute discretion (collectively, the “Inspections”). For the avoidance
of doubt, Purchaser may conduct Environmental Site Assessments of the
Property including Phase I, II and III Environmental Site Assessments,
together with any other environmental (e.g., soil and/or groundwater) or
hazardous building material sampling and testing. Before Purchaser enters
the Property to perform the Inspections, Purchaser shall endeavor to give
Seller not less than twenty-four (24) hours prior notice and, at Seller’s
option, a representative of Seller may accompany Purchaser and/or
Purchaser’s representative. Purchaser agrees to be solely responsible for
the conduct of Purchaser’s representatives on and adjacent to the Property
and shall assume and pay for all expenses incurred in connection with the
Inspections. Purchaser agrees to return the Property to substantially the
same condition and cleanliness existing before entry and/or occupation by
Purchaser’s representatives. Purchaser shall use reasonable efforts to
minimize interference with Seller’s use and occupancy of the Property and
the Town Property. Purchaser shall keep confidential the information
resulting from the Inspections except to the extent required by applicable
law; however, Purchaser may disclose such confidential information to
Purchaser’s attorneys, accountants, consultants, agents and representatives
to the extent each needs to know confidential information for the sole
purpose of evaluating the Property. Seller hereby grants to Purchaser
permission to communicate and correspond with any and every tenant, user
and occupant of the Property.
6 Indemnification by Purchaser. Purchaser shall indemnify, defend, release
and hold harmless Seller from any loss, injury, liability, damage or
expense, including reasonable attorneys’ fees and costs, which Seller may
incur in connection with and to the extent caused by (a) any act or
omission of Purchaser or its consultants, agents or representatives arising
in connection with Purchaser’s or Purchaser’s consultants’, agents’ or
representatives’ access to the Property; (b) any tests or inspections of
the Property (including without limitation the Inspections) conducted by
Purchaser or its consultants, agents or representatives; and (c) the
failure of Purchaser to repair, restore and replace the Property in
accordance with Section 3.1; provided, however, that Purchaser shall not be
required to indemnify Seller if and to the extent that any such loss,
injury, liability, damage or expense was caused by the negligence, omission
or willful acts of Seller, its employees or its agents. The foregoing
indemnification shall survive Closing and the delivery of the Deed, or the
earlier termination of this Agreement. Furthermore, Purchaser shall, at
its sole cost and expense, keep and maintain a policy of comprehensive
public liability insurance with a contractual liability endorsement that
covers Purchaser’s indemnity obligation set forth above naming Seller as an
additional insured and affording protection in limits of not less than One
Million Dollars ($1,000,000.00) for bodily injury or death in any one
accident, and not less than One Million Dollars ($1,000,000.00) in the
aggregate, or shall cause any consultants, agents or representatives
performing such Inspections at the Property on Purchaser’s behalf to carry
such insurance. Purchaser may self-insure with respect to the foregoing
insurance requirements in its sole and absolute discretion.
7 Feasibility Date. The “Feasibility Date” shall be June 30, 2024. Except
as set forth herein, Purchaser may, for any reason or no reason, terminate
this Agreement, in its sole and absolute discretion, no later than the
Feasibility Date by providing written notice to Seller on or prior to 5:00
p.m. Eastern Time on the Feasibility Date and, if so terminated, this
Agreement shall terminate and no party shall have any further right, duty
or obligation to any other party pursuant to this Agreement except as
expressly stated herein.
8 Inspection of Documents. Within ten (10) days following the Effective
Date, Seller shall make available to Purchaser via data room or at
Purchaser’s address as set forth above, to the extent in Seller’s
possession or control (collectively, the “Property Documents”):
a) All surveys, as built plans, and specifications for the
improvements on the Town Property;
b) All studies and reports including any Phase I, Phase II or Phase
III Environmental Site Assessments, environmental reports,
compliance audits, sampling data, asbestos or other hazardous
building material surveys or abatement records, and any other
documents, relative to any hazardous or toxic material, waste or
other environmental condition contained in, under, at, on, upon
or emanating from the Town Property (including without
limitation all improvements located at the Town Property);
c) All studies and reports with respect to engineering or the
structural integrity of the improvements located at the Town
Property, and with respect to geotechnical and/or wetlands
concerning the Town Property;
d) All easements, covenants, conditions, restrictions and other
instruments, muniments and written undertakings affecting title
to or the use of the Town Property;
e) All lease documents or other agreements affecting the Town
Property;
f) All documents relating to any special use, non-conforming use or
zoning variance granted with respect to all or any portion of
the Town Property;
g) All existing title insurance policies with respect to the Town
Property; and
h) All orders, notices of violations, cease and desist order,
complaints, threatened litigation, enforcements, judgements or
other similar or related documents with respect to the Town
Property; and
i) All other documents affecting the ownership or use of the Town
Property that Seller has not already provided to Purchaser.
9 Title Commitment.
1 Purchaser, at Purchaser’s sole cost and expense, shall order from a title
insurance company authorized to issue policies of title insurance in the
State of Connecticut reasonably acceptable to Seller (the “Title Company”)
a Commitment for Title Insurance (the “Title Commitment”) setting forth the
status of title to the Town Property and all exceptions which would appear
in an Owner’s Policy of Title Insurance, and specifying the Purchaser as
the named insured and showing at least the estimated value of the Property
as the policy amount, and, if it so desires, a municipal departmental
search with respect to the Town Property (the “Municipal Report”).
Purchaser shall notify Seller in writing of any objections to title other
than the Permitted Exceptions (as hereinafter defined) which it may have no
later than the Feasibility Date (the “Title Objections”), and may notify
Seller in writing of any objections to the Municipal Report (the “Municipal
Objections”). Purchaser shall be deemed to have waived the right to object
to any matter shown on the Title Commitment and not otherwise noted as a
Title Objection. Seller shall have thirty (30) days from the receipt of
Purchaser’s notice of the Title Objections (or Additional Encumbrances, as
hereinafter defined) and any Municipal Objections, during which Seller may,
but shall not be obligated to, state in writing whether it intends to
remedy any defect set forth in Purchaser’s notice by Closing (the “Title
Response Period”). Upon the termination of the Title Response Period,
Purchaser shall either (a) accept the title Seller is able to convey
without abatement, reduction or setoff against the Purchase Price; or (b)
terminate this Agreement. In the event of termination by Purchaser, this
Agreement shall terminate and no party shall have any further right, duty
or obligation to any other party pursuant to this Agreement except as
expressly stated herein. In the event Purchaser fails to notify Seller of
its desire to terminate as set forth herein, Purchaser shall be deemed to
have elected to accept title as set forth in clause (a) of this Section.
The Closing Date shall be postponed, if necessary, by the number of days
required to accommodate such procedures. Notwithstanding anything herein
to the contrary, Seller must remove, have released and discharged of record
any and all monetary encumbrances, including without limitation any and all
mortgages, mechanics liens, judgment liens and tax liens which affect the
Premises.
2 In the event any additional encumbrance arises after the date of the
Title Commitment (the “Additional Encumbrances”) but prior to the Closing
Date of which Purchaser becomes aware, then Seller, upon written notice of
such Additional Encumbrances, shall have a period not to exceed thirty (30)
days following such written notice (the “Cure Period”) to enable Seller to
remove the Additional Encumbrances and Seller shall diligently use its good
faith efforts to remove such Additional Encumbrances (or, at Purchaser’s
sole and exclusive option, provide the Title Company with such assurances
as may be reasonably necessary to issue an Owner’s Policy of Title
Insurance insuring title to the Property without exception for such
Additional Encumbrances). In the event Seller is not able to remove the
Additional Encumbrances prior to the expiration of the Cure Period, then
Purchaser may terminate this Agreement by notifying Seller in writing to
such effect within ten (10) business days following the expiration of the
Cure Period, in which case this Agreement shall terminate and no party
shall have any further right, duty or obligation to any other party
pursuant to this Agreement except as expressly stated herein. If Purchaser
does not so terminate this Agreement, Purchaser shall accept such title as
Seller can convey without reduction in the Purchase Price. The Closing
Date shall be postponed, if necessary, by the number of days required to
accommodate the Cure Period.
3 It is understood and agreed that the marketability of title herein
required to be conveyed by Seller shall be determined in accordance with
the Standards of Title of the Connecticut Bar Association now in effect
(the “Title Standards”). It is also agreed that any and all defects in or
encumbrances against the title which come within the scope of said Title
Standards, shall not constitute a valid objection on the part of Purchaser,
if such Title Standards do not so provide, provided that Seller furnishes
any affidavits or other instruments which may be required by the applicable
Title Standards.
10 Permitted Exceptions. Purchaser shall accept title to the Property
subject and solely limited to the following exceptions (collectively, the
“Permitted Exceptions”):
1 Building lines if established, zoning and building regulations, and any
and all provisions of any ordinance, municipal regulation or public or
private law affecting the Property;
2 Real estate taxes on the current grand list and any and all existing tax
payments, municipal liens or assessments coming due on or after the Closing
Date which Purchaser, by acceptance of the Deed, shall assume and agree to
pay any and all such tax payments, liens and assessments which may on or
after the date hereof be assessed, levied against or become a lien on the
Property;
3 Common law, statutory, riparian and littoral rights of others and other
rights as may exist in and to any natural watercourse or body of water
flowing through or adjoining the Property;
4 Public improvement assessments and/or any unpaid installments thereof
which assessments and/or installments become due and payable after the date
of delivery of the Deed, which assessments and/or installments Purchaser
will assume and agree to pay as part of the consideration for the Deed; and
5 Any matter shown on the Title Commitment and not otherwise noted as a
Title Objection, subject to the terms and conditions of Section 3.5.
11 Land Use Matters.
1 Survey. By March 31, 2024, Purchaser, at its sole cost and expense,
shall cause to be prepared an ALTA/NSPS survey of the Town Property
including all easement areas, and metes and bounds legal descriptions of
the Town Property, certified to, among others, Seller, Purchaser and the
Title Company, and subject to the review, comment and approval of Purchaser
and the Title Company (the “Survey”). Purchaser may include objections to
the Survey as part of its Title Objections. Purchaser and Seller shall
work together in good faith and with diligence to determine the exact
location of the boundaries of the Property to be conveyed to Purchaser,
together with any easements which need to be granted (or reserved in the
deed) for utilities, access and the like, and any other easements deemed
reasonably necessary by Seller and Purchaser as shown on such
aforementioned survey (collectively, the “Easements”). Upon determination
of the exact location of the boundaries of the Property to be conveyed to
Purchaser, Seller and Purchaser shall enter into an amendment to this
Agreement memorializing such exact location (the “Property Description
Amendment”). Seller and Purchaser shall endeavor to enter into the
Property Description Amendment by the date that is thirty (30) days
following the receipt by Purchaser and Seller of the final approved Survey.
2 Subdivision and Property Realignment. Seller shall be responsible, at
its sole cost and expense (including the costs and expenses of any
appeals), for obtaining prior to April 30, 2024 (the “Seller’s Land Use
Approvals Date”), all final subdivision (or lot division), lot line
adjustment, special permit, special exception, site plan, variance and
other land use approvals and permits necessary, if any, from all Land Use
Authorities, to separate (a) the Encroachment Area, the Cell Tower Area and
the Pickleball Courts to Purchaser’s reasonable satisfaction; from (b) the
Property, in compliance with the Land Use Regulations and the Property
Description Amendment (collectively, the “Seller’s Land Use Approvals”).
In the event that any of the Encroachment Area, the Cell Tower Area and the
Pickleball Courts may be separated from the Property by boundary, lot line
or other forms of agreement, Seller shall be responsible, at its sole cost
and expense, for preparing, negotiating, entering into and recording on the
Waterford Land Records prior to the Seller’s Land Use Approvals Date all
such agreements (collectively, the “Boundary Line Agreements”), which
Boundary Line Agreements are subject to the review, comment and approval of
Purchaser and the Title Company prior to their execution. Seller shall be
responsible, at its sole cost and expense, for performing all civil
engineering studies, drawings, boundary realignment maps and subdivision
maps necessary to support all of the foregoing. Seller shall also transfer
all approvals, permits, licenses and consents to Purchaser to the extent
required in accordance with applicable Land Use Regulations.
3 School Construction Project. Purchaser shall be responsible, at its sole
cost and expense (including the costs and expenses of any appeals), for
obtaining prior to June 30, 2024 (the “Purchaser’s Land Use Approvals
Date”), all special permit, special exception, site plan, variance and
other land use approvals and permits necessary, if any, from all Land Use
Authorities, for Purchaser to use the Premises as it intends in its sole
and absolute discretion, including without limitation the demolition of the
existing Southwest School located at the Property and the construction of a
new school to be located at the Property permitting educational and/or
institutional use, together with all permits and approvals necessary to
construct the Pickleball Courts, all in compliance with the Land Use
Regulations(collectively, the “Purchaser’s Land Use Approvals” and,
together with the Seller’s Land Use Approvals, collectively, the
“Approvals”). Purchaser shall be responsible, at its sole cost and
expense, for performing all civil engineering studies, surveys, drawings
and maps necessary to support all of the foregoing. In the event that
Purchaser has not obtained final, unappealabe Purchaser’s Land Use
Approvals by the Purchaser’s Land Use Approval’s Date, Purchaser may, in
its sole and absolute discretion, terminate this Agreement. In the event
of any such termination by Purchaser, this Agreement shall terminate and no
party shall have any further right, duty or obligation to any other party
pursuant to this Agreement except as expressly stated herein. The
Pickleball Courts shall be constructed at Purchaser’s sole cost and
expense.
4 Seller Obligations. Seller shall at all times prior to the Seller’s Land
Use Approvals Date diligently pursue the Seller’s Land Use Approvals using
all good faith efforts, including without limitation (a) submission of all
information and documents required or reasonably requested by any
governmental entity in accordance with established deadlines or, if none,
in a timely manner; (b) payment of any and all application fees and other
costs required by any governmental entity in accordance with established
deadlines or, if none, in a timely manner; and (c) the retention of
qualified and responsive professionals, such as engineers, consultants and
attorneys, to facilitate issuance of the Seller’s Land Use Approvals.
Seller, at no cost or expense to Purchaser, shall cooperate in good faith
with Purchaser in obtaining the Purchaser’s Land Use Approvals, including
executing on Purchaser’s behalf any and all applications and consents
required to be signed by Seller for Purchaser to obtain the Purchaser’s
Land Use Approvals, and attending any hearings or other meetings and
providing letters of support in connection with and in support of any of
Purchaser’s Land Use Approvals.
5 Purchaser Obligations. Purchaser shall at all times prior to the
Purchaser’s Land Use Approvals Date diligently pursue the Purchaser’s Land
Use Approvals using all good faith efforts, including without limitation
(b) submission of all information and documents required or reasonably
requested by any governmental entity in accordance with established
deadlines or, if none, in a timely manner; (b) payment of any and all
application fees and other costs required by any governmental entity in
accordance with established deadlines or, if none, in a timely manner; and
(c) the retention of qualified and responsive professionals, such as
engineers, consultants and attorneys, to facilitate issuance of the
Purchaser’s Land Use Approvals.
6 Appeals. Neither Seller nor Purchaser shall have any obligation to (a)
appeal a denial by any governmental authority having jurisdiction over the
issuance of any Approvals; (b) appeal any Approvals with conditions,
exceptions and/or contingencies deemed unacceptable by either Purchaser or
Seller, in their sole and absolute discretion; or (c) defend any appeal by
any party whatsoever with respect to any Approvals and, notwithstanding
anything herein to the contrary, in the event of any of the foregoing,
Purchaser or Seller may, at any time (i) prior to the expiration of any
relevant appeal period; or (ii) promptly following any such appeal by any
party whatsoever, whichever is later, elect, in its sole and absolute
discretion, to terminate this Agreement. In the event of any such
termination, this Agreement shall terminate and no party shall have any
further right, duty or obligation to any other party pursuant to this
Agreement except as expressly stated herein. In the event Purchaser,
Seller or any adverse party appeals the denial or award of any Approvals,
such Approvals shall not be deemed to have obtained unless and until such
appeal is resolved favorably to Seller with respect to Seller’s Land Use
Approvals or Purchaser with respect to the Purchaser’s Land Use Approvals,
as the case may be, by a final judgment of a court with final jurisdiction
over the appeal.
12 Financing Contingency. Purchaser shall have until June 30, 2024 (the
“Financing Date”), to obtain sufficient funding from the State of
Connecticut to use the Premises as it intends in its sole and absolute
discretion, including without limitation the demolition of the existing
Southwest School located at the Property and the construction of a new
school to be located at the Property permitting educational and/or
institutional use in accordance with the Purchaser’s Land Use Approvals, by
being added to the state bid list or otherwise, the terms and conditions of
which shall be acceptable to Purchaser in its sole and absolute discretion
(collectively, the “Financing”). In the event that Purchaser does not
receive the Financing by the Financing Date, Purchaser may, in its sole and
absolute discretion, terminate this Agreement. In the event of any such
termination by Purchaser, this Agreement shall terminate and no party shall
have any further right, duty or obligation to any other party pursuant to
this Agreement except as expressly stated herein
13 Contracts. As used herein, the term “Contracts” shall mean all service,
repair, maintenance, supply, security or other contracts relating to the
use or operation of the Premises, and all other such assignable contracts
or agreements in effect as of the Effective Date. Seller shall not enter
into any new Contracts without the prior written consent of Purchaser,
which consent Purchaser may withhold in its sole and absolute discretion,
unless the same are terminable upon thirty (30) days prior written notice
and without penalty. Prior to the Feasibility Date, Purchaser shall have
the opportunity to review the Contracts and provide Seller with a list of
Contracts not separately or otherwise addressed in this Agreement that it
will assume (the “Assumed Contracts”). If Purchaser does not terminate the
Agreement in accordance with the terms and conditions of this Agreement,
then Purchaser agrees, at Closing, to purchase the Premises and to assume
and honor all of the Assumed Contracts. Seller shall pay any transfer or
other fee or payment payable under any Assumed Contract as a result of the
assignment and assumption of such Assumed Contract in connection with the
transfer of the Premises, and shall be responsible for obtaining the
consent to the transfer of any Assumed Contract which requires such
consent. Purchaser shall be responsible for any obligations arising under
such Assumed Contract on or after the Closing Date provided that all such
consents necessary for Purchaser to assume the same have been obtained by
Seller. Seller shall remain fully responsible for all Contracts that
Purchaser has elected not to assume, including, without limitation,
termination of any such Contracts if Seller so desires, or payment of any
termination fees, damages or penalties arising under such Contracts. The
consents referenced herein shall provide that if the transaction
contemplated by this Agreement is not consummated, the consent will not be
effective.
14 Cooperation. Seller shall cooperate with Purchaser in satisfying the
Inspections, the Purchaser’s Land Use Approvals and the Financing.
15 Project Feasibility. Notwithstanding anything in this Agreement to the
contrary, if Purchaser, in its sole discretion, shall determine that the
use of the Premises as contemplated by Purchaser is not feasible for any
reason, including without limitation the configuration of the Premises, the
availability of utilities with adequate capacity and other support services
at the Premises, the resistance of governmental authorities having
jurisdiction or other parties to the proposed use of the Premises, or any
other reason which, in the opinion of Purchaser, should cause this
Agreement to be terminated by Purchaser, rather than prolonging Purchaser’s
control of the Premises, Purchaser may notify Seller of its determination
to terminate this Agreement in writing, in which event this Agreement shall
terminate and thereafter neither party shall have any further rights or
obligations hereunder except for those provisions which expressly survive
the termination of this Agreement. This contingency is for the benefit of
Purchaser and may be waived Purchaser in its sole discretion
SELLER’S OBLIGATIONS PRIOR TO CLOSING. Until Closing, Seller covenants and
agrees to the following:
1 Insurance. Seller shall keep the Premises insured in reasonable amounts
against fire and other hazards and comprehensive public liability insurance
against claims for bodily injury, death and property damage occurring in,
on or about the Premises; such insurance policies shall be on an occurrence
basis;
2 Operation. Except as otherwise provided in this Agreement, Seller shall
continue to operate and maintain the Premises in its current manner as of
the Effective Date and deliver the Premises to Purchaser at Closing in the
condition existing as of the Effective Date, reasonable wear and tear and
damage by casualty and condemnation excepted, subject to the terms and
conditions of this Agreement except for such modifications as may be
approved by Purchaser in a signed writing.
3 Waste. Seller shall not dispose, nor permit the disposal of, any trash,
vehicles, debris, building materials, hazardous materials, environmental
contaminants or organic material (including without limitation, trees and
stumps) on the Property except in compliance with all applicable laws and
regulations.
4 General Compliance. Seller shall comply with all covenants, conditions,
restrictions and laws affecting the Premises, and shall not remove nor
damage any structures, fixtures, systems, improvements, topsoil, gravel,
sand, minerals, mineral rights, earth products, trees, shrubbery and
landscaping without Purchaser’s prior written consent.
5 No Violations. Seller and the Premises are not and shall not be at time
of Closing be in violation of, or in default with respect to, (a) any
order, writ, injunction, judgment or decree of any court or federal, state,
or local government instrumentality issued or pending against Seller or the
Premises; (b) of any restrictive covenant or encumbrance recorded upon the
land records and applicable to the Premises; or (c) any federal, state or
local law, rule or regulation.
6 Taxes and Payments. Seller shall continue to pay all taxes and mortgage
payments (if applicable) with respect to the Premises as and when the same
are due and, at Closing, there shall be no unpaid bills or claims which may
give rise to a lien against the Premises or be binding upon Purchaser.
7 No Transfers. Seller shall not (a) further encumber, or give, grant or
convey or modify any easements, leases, licenses or other direct or
indirect interests in and to, the Premises or Seller’s rights and
obligations therein or under this Agreement nor permit the same to occur;
and (b) hereafter sell or otherwise transfer any direct or indirect
interest in the Premises or this Agreement, and shall not enter into any
agreements with respect to the Premises which shall remain binding on the
Premises after Closing except as permitted pursuant to this Agreement.
Except for the Assumed Contracts and this Agreement, all contracts and
agreements relative to the Premises shall be terminated at or prior to
Closing.
8 No Land Use Changes. Except permitted pursuant terms and conditions of
this Agreement, Seller shall not initiate, consent to or affect any zoning,
subdivision or other land use changes to the Premises.
9 Continued Accuracy of Representations. Seller shall take no action nor
permit any action or omission which may alter the continued complete
accuracy of Seller's representations and warranties as contained herein
throughout the term hereof. Seller shall take all actions, at its sole
cost and expense, to maintain the continuing truth and accuracy of Seller's
representations and warranties contained herein.
10 Notice of Changed Circumstances. Seller shall promptly advise Purchaser
of any changed circumstances with respect to the Premises including,
without limitation, every (a) rezoning of the Town Property or proposal to
do so; (b) actual or threatened taking or condemnation or all or any
portion of the Town Property; (c) actual or threatened enforcement action
by any party whatsoever; (d) actual or threatened lien against title to the
Town Property; and (d) change in circumstances that would alter any of
Seller’s continuing representations, warranties or covenants herein
contained.
11 UST Closure and Removal. Seller shall close or provide Purchaser with
proof of closure of the UST Notices of Violation from the Connecticut
Department of Energy and Environmental Protection (CTDEEP) dated February
14, 2018, for (a): failure to comply with annual testing of the cathodic
protection system (NOVUST-GB18-0018); and (b) failure to provide updated
registration information (NOVUST-GB18-0022) (collectively, the “Known UST
NOVs”), in accordance with CTDEEP guidance and regulations.
REPRESENTATIONS AND WARRANTIES.
12 By Seller. Seller represents and warrants to Purchaser as of the
Effective Date that:
1 Seller is a validly existing municipal corporation duly organized under
the laws of the State of Connecticut.
2 Seller has taken all requisite action and obtained all requisite
consents, releases and permissions in connection with entering into this
Agreement and the instruments and documents referenced herein or required
under any covenant, agreement, encumbrance, law or regulation with respect
to the obligations required hereunder, and no consent of any other party is
required for the performance by Seller of its obligations hereunder.
3 This Agreement is, and all agreements, instruments and documents to be
executed and delivered by Seller pursuant to this Agreement shall be, duly
authorized, executed and delivered by Seller.
4 This Agreement is, and all agreements, instruments and documents to be
executed and delivered by Seller pursuant to this Agreement shall be, valid
and legally binding upon Seller and enforceable in accordance with their
respective terms.
5 Neither the execution of this Agreement nor the consummation of the
transactions contemplated hereby does now constitute or shall result in a
breach of, or a default under, any agreement, document, instrument or other
obligation to which Seller is a party or by which Seller may be bound, or
any law, statute, ordinance, rule, governmental regulation or any writ,
injunction, order or decree of any court or governmental body, applicable
to Seller or to the Premises.
6 No petition in bankruptcy (voluntary or otherwise), assignment for the
benefit of creditors, or petition seeking reorganization or arrangement or
other action under Federal or state bankruptcy law is pending against or
contemplated by Seller.
7 There are no actions, suits, claims or other proceedings pending or
contemplated or threatened against Seller that could affect Seller’s
ability to perform its obligations when and as required under the terms of
this Agreement.
8 Seller has not received any written notice or request for information
which remains effective on the date hereof of any actual or potential
claim, action or proceeding, including, without limitation, condemnation
proceedings against the Premises, or against Seller with respect to the
Premises (including the environmental condition thereof), including without
limitation with respect to the violation of (a) any applicable laws,
ordinances, rules and regulations with respect to the Premises which have
not heretofore been cured, or (b) any enforceable recorded restrictions,
conditions or covenants encumbering the Premises.
9 Seller is the sole owner of the Premises and has not transferred all or
any portion of the air or other development rights appurtenant to the
Premises.
10 Except for the matters of record disclosed in the Title Commitment,
Seller has good and marketable, indefeasible, absolute fee simple title to
the Premises free and clear of all defects, security interests, liens,
encumbrances, easements, covenants, restrictions, reservations, conditions,
encroachments and any other matters or defects whatsoever.
11 Neither the Premises nor any part thereof is subject to any purchase
contract, option, lease or occupancy arrangement, management agreement,
construction contract, tax agreement, governmental agreements, development
agreements, or other contract or arrangement.
12 There are no commitments or agreements with respect to the Premises
which would require Purchaser to pay any money or perform any obligation or
which would otherwise affect the ownership or development of the Premises.
13 There are no unrecorded development or use restrictions with respect to
the Premises.
14 Seller is not aware of any condition, event or circumstance that might,
after the Closing, prevent, impede, or materially increase the costs
associated with the ownership, lease, operation, performance or use of the
Premises for Purchaser’s intended use of the Premises as more particularly
set forth in this Agreement.
15 The operations of Seller with respect to the Premises are currently and
have been in compliance with all Environmental Laws (as hereinafter
defined). Seller has not received from any person, with respect to the
Premises, any: (a) environmental notice or environmental claim; or (b)
written request for information pursuant to Environmental Law, which, in
each case, either remains pending or unresolved, or is the source of
ongoing obligations or requirements as of the Effective Date.
“Environmental Laws” means any applicable federal, state and local law,
common law, and any governmental order or binding agreement with any
governmental authority: (i) relating to pollution (or the clean-up thereof)
or the protection of natural resources, endangered or threatened species,
human health or safety, or the environment (including ambient air, soil,
surface water or groundwater, or subsurface strata); or (ii) concerning the
presence of, exposure to, or the management, manufacture, use, containment,
storage, recycling, reclamation, reuse, treatment, generation, discharge,
transportation, processing, production, disposal or remediation of any
Hazardous Materials including without limitation, the following (including
their implementing regulations and any state analogs): the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§
9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. §§6901 et seq.; the
Clean Air Act, 42 U.S.C. §§7401 et seq.; the Federal Water Pollution
Control Act of 1972, as amended by the Clean Water Act, 33 U.S.C. §§1251 et
seq.; the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq., as
amended by the Frank R. Lautenberg Chemical Safety for the 21st Century
Act; and the Emergency Planning and Community Right to Know Act, 42 U.S.C.
§§11001 et seq.; (iv) the Connecticut Transfer Act, Conn. Gen. Stat. §§ 22a-
134 et seq., (Transfer Act) and (vii) any other Laws relating to the
matters set forth above. “Hazardous Materials” means: (A) any material,
substance, chemical, waste, product, derivative, compound, mixture, solid,
liquid, mineral or gas, in each case, whether naturally occurring or
manmade, that is hazardous, acutely hazardous, toxic, or words of similar
import or regulatory effect under Environmental Laws; and (B) any petroleum
or petroleum-derived products, radon, radioactive materials or wastes,
asbestos in any form, lead or lead-containing materials including paint,
radioactive materials, putrescible and infectious materials,, per- and
polyfluoroalkyl substances, urea formaldehyde foam insulation and
polychlorinated biphenyls.
16 There has been no actual or threatened release of Hazardous Materials in
contravention of any Environmental Laws with respect to the Premises and
neither the Premises nor any business currently or formerly located thereon
is an “establishment” as such term is defined in the Connecticut Transfer
Act, Conn. Gen. Stat. §§ 22a-134 et seq., and the Premises (including
soils, groundwater, surface water, buildings and other structures located
thereon) has not been contaminated with any Hazardous Material which could
reasonably be expected to result in a violation of Environmental Law.
17 Other than the underground storage tanks associated with the Known UST
NOVs, no active or abandoned aboveground or underground storage tanks exist
at, on, upon or under the Premises.
18 Seller has provided or otherwise made available to Purchaser any and all
Property Documents, including without limitation any environmental reports,
studies, audits, records, sampling data, site assessments, and other
similar documents with respect to the Premises related to compliance with
Environmental Law, which are in the possession or control of Seller.
19 Seller has not received any written notice of and has no actual
knowledge of pending or threatened litigation, action, suit, proceeding or
investigation (by any person, any governmental or quasi-governmental
agency, department, board, commission, bureau or other entity or
instrumentality or otherwise) affecting the ownership, use, occupancy,
value, operation or title of the Premises, or any part thereof, or the
consummation of the sale to Purchaser pursuant hereto, and there is no tax
appeal by Seller pending with respect to the Premises.
20 Seller has no knowledge of any pending public agency (including but not
limited to planning, zoning, inland wetlands, etc.) hearings or appeals
therefrom concerning the Premises or any abutting property, and Seller
shall promptly notify Purchaser in writing if Seller receives notice or
learns of any such hearings on and after the Effective Date.
21 The Premises is not in violation of any legal requirements regarding the
use, operation or ownership of the Premises.
22 Seller is not a foreign person as defined in 26 U.S.C. Section
1445(f)(3).
23 There are no special assessments levied or to be levied against the
Premises which are not yet a lien upon the Premises, and Seller has
received no written notice and has no actual knowledge of any existing
improvements or work done at the Premises which may result in special taxes
or assessments to be paid thereon.
24 The Property abuts a public highway or is to be conveyed together with a
permanent right of way or easement to a public highway.
25 Except for this Agreement, there are no outstanding contracts between
Seller and any other person with respect to the sale of all or any portion
of the Premises.
The representations and warranties made in this Section 5.1 shall be
true and complete at Closing and shall survive the Closing for a period of
three (3) years following the Closing Date (the “Survival Period”).
Purchaser shall provide Seller with written notice (a “Notice of Breach”)
of any alleged breach