Board of Selectman Special Meeting Agenda

FIFTEEN ROPE FERRY ROAD PHONE; 860-442-0553
WATERFORD, CT 06385-2886 www.waterfordct.org
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OWN CLERK AGENDA
THE BOARD OF SELECTMEN SPECIAL MEETING
Wednesday, May 24, 2023
5:00pm
Waterford Town Hall
1, Call to Order:
2. Pledge of Allegiance:
3. Public Comment:
4. Southwest School: To consider and act on a proposal to transfer a portion of
the Southwest School property, approximately 15 acres, to LEARN, a non-
profit regional education center, and forward to the RTM for its
consideration, pursuant to the attached proposed contract and in accordance
with Ordinance 2.112.040, subject to Town Attorney approval of final
contract terms.
5. 1 Hamel Court: To consider and act on a proposal to sell by public auction
1 Hamel Court, in accordance with the attached terms of Auction pursuant to
Town Ordinance 2.112.010 et al.
6. Board of Education: To consider and act on a request for an appropriation
from BOE Superintendent of Schools, Thomas Giard III, in the amount of
$536,472 from undesignated fund balance to address all or part of the
reduction from the RTM budget hearing and forward on to the Board of
Finance if approved.
7. Adjournment

S&G DRAFT 05/11/2023
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, Seiler 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.
G)

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:
1. THE PROPERTY.
1.1. 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”):
1.1.1. the Property;
1.1.2. 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
1.1.3. 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
1.1.4. 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.
1.2. 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.
2. PURCHASE PRICE AND PAYMENT.
2.1. 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.
2.2. 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”).
6
3. INSPECTIONS AND APPROVALS.
3.1. 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, I] and IIT 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.

3.2. 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.
3.3. 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.
3.4, 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;
® 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
@ All other documents affecting the ownership or use of the Town
Property that Seller has not already provided to Purchaser.
3.5. Title Commitment.
3.5.1. 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 shail 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
ali mortgages, mechanics liens, judgment liens and tax liens which affect the Premises.
3.5.2. 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.
3.5.3. 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.
3.6. Permitted Exceptions. Purchaser shall accept title to the Property subject
and solely limited to the following exceptions (collectively, the “Permitted Exceptions”):
3.6.1. 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;
3.6.2. 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;
3.6.3. 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;

3.6.4. 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
3.6.5. 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.
3.7. Land Use Matters.
3.7.1. 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 Tithe 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 G0) days
following the receipt by Purchaser and Seller of the final approved Survey.
3.7.2. 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.

3.7.3. 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 Sefler’s Land Use Approvals,
collectively, the “Apprevals”). 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.
3.7.4. 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.
3.7.5. 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.
3.7.6. 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.
3.8. 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
‘
3.9. 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.

3.10. Cooperation. Seller shall cooperate with Purchaser in satisfying the
Inspections, the Purchaser’s Land Use Approvals and the Financing.
3.11. 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
4, SELLER’S OBLIGATIONS PRIOR TO CLOSING. Until Closing, Seller
covenants and agrees to the following:
4.1. 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;
4.2, 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.
4.3. 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.
44. 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.
4.5. 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.
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4.6. 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.
4.7. 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.
48. NoLand 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.
4.9. 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.
4.10. 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.
4.11. 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.
5. REPRESENTATIONS AND WARRANTIES,
5.1. By Seller. Seller represents and warrants to Purchaser as of the Effective
Date that:
5.1.1. Seller is a validly existing municipal corporation duly organized
under the laws of the State of Connecticut.
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5.1.2. 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.
5.1.3. 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.
5.1.4. 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.
5.1.5. 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.
5.1.6. 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.
5.1.7. 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.
5.1.8. 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.
5.1.9. 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.
5.1.10. 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.
5.1.11. Neither the Premises nor any part thereof is subject to any
purchase contract, option, lease or occupancy arrangement, management agreement, construction
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contract, tax agreement, governmental agreements, development agreements, or other contract or
arrangement.
5.1.12. 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.
5.1.13. There are no unrecorded development or use restrictions with
respect to the Premises.
5.1.14. 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.
5.1.15. 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.
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5.1.16. 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 seg., 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.
5.1.17. 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.
5.1.18. 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.
5.1.19. 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.
5.1.20. 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.
5.1.21. The Premises is not in violation of any legal requirements
regarding the use, operation or ownership of the Premises.
5.1.22. Seller is not a foreign person as defined in 26 U.S.C. Section
1445()).
5.1.23. 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.
5.1.24, The Property abuts a public highway or is to be conveyed together
with a permanent right of way or easement to a public highway.
5.1.25. 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.
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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 or failure of any representation and/or warranty made by Seller
and specifying the nature thereof in reasonable detail within a reasonable time after Purchaser’s
discovery of such alleged breach or failure but in any event prior to the expiration of the Survival
Period. Purchaser shall commence any action, suit, or proceeding with respect to any breach or
failure that is the subject of the Notice of Breach, if at all, on or before the date that is thirty (30)
days after the expiration of the Survival Period (the “Suit Deadline”) and Purchaser’s damages
shall be limited as set forth in below.
If, prior to the Closing, Purchaser receives written notice or obtains actual knowledge that
any such representations or warranties made by Seller are untrue, inaccurate or incorrect in any
material respect, Purchaser shall give Seller prompt written notice thereof prior to the Closing.
Notwithstanding anything herein to the contrary, if Seller discloses or Purchaser discovers a
change in a condition with respect to the Premises or the occurrence of any event or
circumstance that, in each instance, makes any representation or warranty of Seller to Purchaser
set forth in this Section 5.1 materially untrue or misleading and consequently such occurrence or
circumstance could have a material and adverse effect on Purchaser’s ownership of the Premises,
then, in such event, Purchaser shall be entitled to adjourn the Closing for up to thirty (30) days to
provide Seller with time within which to cure same. If Seller fails to cure any such
misrepresentation of Seller that is known to be materially untrue or misleading prior to the
Closing Date, then Purchaser, as its sole remedy for any and all such materially untrue or