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05-58Return copy to: (bn) Real Estate Division 140 City Hall CITY OF Presented By Referred To �, WHEREAS, the Ciry of Saint Paul, acting through its Valuation & Assessment Engineer, has secured an agreement for the purchase of one pazcel of real property, described as follows: An azea bounded by Dale Street on the East, BNSF tracks on the North, St. Albans St. on the West and Hubbard Ave. on the South, Northerly of Pierce BuUer Route; As shown on attached map, WHEREAS, said property described is necessary for the future extension of Pierce Buder Route. The value of the property is One Hundred Fifty Thousand Dollars ($150,000) this being a fair and reasonable values;and io ii WHEREAS, the Valuation & Assessment Engineer has recommended the purchase of said property at iz the recommended value; 13 ia NOW THEREFORE BE TI' RESOLVED, that the proper City officials aze hereby authorized and is directed to enter into a Purchase Agreement (attached) for the above referenced property and i6 pay$150,000 plus ciosing costs to JP Morgan ChaseBscrow Agent Apex Property and Track Exchange, i� Inc. (agents for The Burlington Northern And Santa Fe Railway Company) for the purchase of said ia property. Said sum to be charged to MSA ConUngency 19 20 :�I%1.7 Requested by Department of: ��-- // ' � . �� �-- ' � ��� �-- � �� �-- � ✓ Council Fffe # �5"J Green Sheet # �� RESOLUTION NT PAUL, MINNESOTA Director Form A�roved by City Adopted by Council: Date Adoption By: � Approved By: _—� by �Date Mayor'far S�tbm�ssion to, � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � pW — Pubticwodrs CoMact Person & Phone: Pete White 266-8853 Must Be on Couneil Agentla by (Date): 26-JAN-0S 12-JAN-05 I Green Sheet NO: � Assign Number For Routing Order 05-5� 3024888 0 �ablic Works i � 1 bGc Works ar�ent Director 2 i Attorce 3 or's �ce Ma or/Assistant 4 uncil 5 i Clerk (.5 Clerk Total # of Signature Pages _(Clip OJI Locations for Signature) Action Requested: Sign Council Resolution authorizing purchase land for the extension of Pierce Butler Route. Recommendatians: Approve (A) or Rejeet (R): Planning Commission CIB Committee Civil Service Commission Persorraf Service Contrects Must Mswer the Foflowing 1. Has this perso�rm ever worked under a contract for this department? Yes No 2. Has this personffirm ever been a city employee? Yes No 3. Does this persoNfirm possess a skill not normally possessed by any current ciry employee? Yes No Explain all yes answers on separate sheet and attach to green sheet Initiating Problem, Issues, OpportuniTy (Who, What, When, Where, Why): There has been a plan for the extension of Pierce Bufler Route for some time. The property to be acquired is a BNSF parcel that is needed for the proposed extension of the road AdvantaaeslfApproved: The City wili be buying a pazcel that is not developed Disativantaqes If Approved: The BNSF has a prospective purchaser for the pazcel and if the City does not acquire it now the cost in the furhire will increase if it is developed. Disadvantages If Not Approved: None ., °S.aC��Frr (°,�•�+?�' J�f 19 20�5 7otal Amount of Trensaction: Funding Source: 150000 MSA Contingency Cost/Revenue Budgeted: ActiviN Number: Financial information: (Explain) Form Approved by VP-Law �'` "`' �5 5� � '��� - _ THE BURLL�IGTON NORTHERN AND SANTA FE RAILWAY COVIPA�iY REAL ESTATE PURCHASE AND SALE AGREEMENT This Real Estate Purchase and Sale A�reement ("AgreemenY') is entered into as of the Effective Date (defined below) between the CITY OF ST. PAiTL ("Buyer") and THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COi�IPANY ("Seller"). This Agreement shall not be bindina upon either party untess and until both parties have executed and delivered this A�eement. The submission o�f this document by Seller to Buyer shall not constitute an off �r to sell by Seller. In consideration of the mutual covenants set forth in this Contract and for other valuable consideration,the receipt and sufficiency of which are hereby acknowled�ed, Seller and Buyer agree as follows: GENERAL TERMS AND DEFINTTIONS The following terms shall have the meanings set forth below: Closine. The consummation of the transaction contemplated by this Agreement, which shall be deemed to have occurred when both parties have delivered the items contemplated in Section 4 of this Agreement. Closin, Date Notwithstanding, anything herein, this sale shall close on or before March 20, 2005. Seller shail have the right to extend the closing up to ninety (90) days, at Seller's sole judgment. EarnestMonev The cash sum of Fifteen Thousand and no/100 dollars ($I5,000.00) made payabie ro JP Morgan Chase/Escrow Agent Apex Property and Track Exchanee, Inc. Effective Date The date of Seller's execution of this Agreement as indicated below Seiler's signahue hereto. Pro er That parcel of land situated in or near the City of St. Paul, County of Ramsey and State of Minnesota, shown on map marked Exhibit A dated July 8, 2003, revised November 19, 2004, attached hereto and made a part hereof, subject to revision as set forth below in Section 3. Purchase Price The sum of One Hundred Fifty Thousand and no/100 dollars ($150,000.00). Review Period The period commencing on the Effective Date and expiring at 5:00 p.m. central time on the date that is 10 days after the Effective Date. PURCHASE AND SALE 2. (a) Subject to the terms and conditions set forth in this Agreement, Seller agrees to sell to Buyer, and Buyer agrees to purchase and accept from Seller, for the Purchase Price, all of Seller's right, title and interest (if any), in and to the Property. Real Estate Pomhase and Sale Agreement � Fortn 603; Rev. l U12/03 Form Approved by VP-Law 05-5� (b) Seller reserves the right to assign this Agreement to Aoex Propertv & Track Exchanee_Inc. ("Apex") or anothzr qualified intermediary within the meaning of Section 1031 of the Internal Recenue Code of 1986 for the purpose of completing a tax-deferred exchange under said Section 1031. Seller shall bear all expenses associated with the use of Apex, or necessary to qualify this transacrion as a taY- deferred eschan�e, and, except as otherwise provided herein, shall protect, reimburse, indemnify and hold harmless Buyer from and a�ainst any and all reasonable and necessary additional costs, expenses, includin�, attorne7s fees, and liabilities which Buyer may incur as a result of Sellzr', use of Apex or other qualified intermediary the qualification of this transaction as a tax-deferred transaction pursuant to Section 1031. Buyer shall execute the document attached as Exhibit B(the "Exchan�e Assienment") and shall cooperate �vith Seller with respect to this tax-de£erred exchan�e, and upon Seller's request, shall execute any other documents as may be required to effect this tax-defened exchan�z. (c) Upon submission by Suyer to Seller of this A�eement si�ned by Buyer, Buyer shall deposit the Earnest Money with Apex (defined below) as escrow agent. Apex shall hold the Earnest Money in escrow pursuant to the terms and conditions of this Aa eement. The Earnest Money shall be refunded to Buyer if this Aa eement is not executed and delivered by Seller within forty five (45) days after the date Buyer delivers this agreement fully executed by Buyer and deposits the Eatnest Money. Buyer shall not be entitled to any interest on the Eamest Money held by Apex pursuant to this Agreement. Buyer acknowledges that receipt by Apex of the Eamest Money shall not constitute acceptance of this Ab eement or Buyer's offer provided, however, that Apex shall return the Eamest Money to Buyer if Seller does not execute and delivei this Agreement within forty-five (45) days after Buyer deposits the Eamest Money. Apex shall deliver the Earnest Money to the party entitled thereto pursuant to this Agreement, provided, however if there is a dispute behveen Buyer and Seller as to who is so entitled, Apex may deposit the Eamest Money with a court of competent jurisdiction pending resolution of such dispute. (d) The balance of the Purchase Price shall be paid at Closing as provided below. INSPECTION 3. (a) Seller will prepare a legal description of the Property and will forward such description to Buyer for Buyer's review. Buyer shall have ten (10) days following such delivery to notify Seller in �,�''� writing if Buyer objects to such description. If Buyer does not so object then the description of the � �+ Property prepared by Seller shall be the definition of the Property for all purposes under this Agreement. � 4 � If Buyer does so object then Buyer shall caused to be prepared, at Buyer's sole cost and expense, a survey u' �o,'� of the Property certified to Seller, Buyer and such other parties as Buyer may choose showing the boundaries of the Property and any improvements located thereon (the "Survey"). If Seller does not ��� aa ee that the description of the Property contained on the Survey is the Property Seller wishes to sell or � otherwise objects to the Survey then Seller may terminate this Agreement by written notice to Buyer in C,'�,��s which case the Earnest Money shall be refunded to Buyer and neither pazty shall have any further � obligation hereunder except those that expressly survive termination. If Seller a�ees in writing that the ��. Survey description is accurate then the description thereon shall be the definition of the Property for all purposes under this Agreement. In the event a city, county, or other goveming authority where the Property is located (a "Municipality") requires a survey or plat to convey the Properry (a "Plat"), the Buyer shall obtain, at Buyer's sole cost and expense, such Plat and the approval of such Municipality. Seller's obligations hereunder are conditioned upon Seller's approval of the Plat approved by the Municipality. Buyer shall provide the proposed Plat to Seller prior to submission to the Municipality and prior to the expiration of the Review Period. Real Estate Purcfiase and Sale Agreement � Fonn 603; Rev. I 1/12/03 Form Approved by VP-Law r�-5g (b) Buyer shall have unril the end of the Review Period to examine title to the Properry. If Buyer elects to obtain a title commitment for the Property Buyer may deliver to Seller no later than the expiration of the Review Period ��zitten norice of any objections to the status of title or matters reflected on the Survey that Buyer may have together with a copy of such tifle commitment, Survey and all matters re£erenced therein. Szller shall have no obli�arion to cure any such objecrion. If Seller notifies Buyer in writing that Seller will cure any such objection Seller (a) shall make �ood faith efforts to cure such matter by the Closing Date and if not cured by such date Buyer may terminate this A�reement in which case the Eamest Money shall be refunded to Buyer and neither parry shall have any further obli�ation hereundzr except those that expressly sure ive termination, and (b) may effzct such cure by causin� the title company issuing the titte commitment to remove such matter as an exception from covera�e by paying additional premium therefor or othercvise. If Seller at any time norifies Buyer in writin� that Seller is not willing or able to cure any of the such objections (including those which Seller has previously endeavored to cure) then Buyer or Seller may temunate this Agreement by written notice to the other delivered within five (5) days after Seller so notifies Buyer that Seller is unwilling or unable to cwe such objection. In the event of such tennination, the Earnest Money shall be refunded to Buyer and neither party shall have any further obligation hereunder except those that expressly survive termination. If this Agreement is not so terminated, the parties shall proceed to Closing according to the remaining provisions of this A�eement. (c) Prior to any entry upon the Proper[y by Buyer, the surveyor preparing the Survey or other individuals on behalf of Buyer, Buyer shall execute and deliver to Seller an Entry and Confidentiality Agreement in the form attached hereto as Exhibit C and incorporated herein (the "Entry AgreemenY'). The terms and provisions of the Entry Agreement are incorporated herein, shall survive the Closin�, shatl not be merged into the Deed or any document delivered at Closin� and shall survive any tennination of this Agreement. Any breach by Buyer of its obligations under the Entry Agreement shall be deemed a breach by Buyer under tl�is Agreement. Notwithstanding anything in this Agreement to the contrary, including the provisions of Section 6(a), nothing in this Agreement or the exercise of any remedy by Seller under this Agreement shall limit or affect in any manner any remedy available to Seller under the Entry Agreement in the event of a breach of Buyer's obiigations under the Entry Agreement. (d) Buyer shall have until the end of the Review Period to determine if the Property is suitable for Buyer's purposes including, but not limited to, the status of zoning, physical characteristics and conditions of the Property, and compliance with applicable laws. If Buyer determines that the Propexty is not suitable for Buyer's purposes or if Buyer for any reason or no reason wishes to temunate this Agreement, Buyer may terminate this Agreement by written notice to Seller received no later than the expiration of the Review Period. If Buyer does so terminate this Agreement, the Eamest Money shall be refunded to Buyer and neither party shall have any further obligation hereunder except those that expressly survive termination. If Buyer does not so terminate this Agreement prior to the end of the Review Period, the parties shall proceed to Closing according to the remaining provisions of this Ao eement. Promptly upon Seller's written request, Buyer shall deliver a copy of any written inspection report, survey or test result received by Buyer. If any of such items reveal any adverse conditions, Seller may temunate this Agreement by written notice to Buyer in which case the Earnest Money shall be refunded to Buyer and neither party shall have any further obligation hereunder except those that expressly survive termination. (e) Notwithstanding the foregoing provisions of Section 3(b), Buyer shall not be entitled to object to any judgment against Seller which may appear of record as a lien against the Property. Seller shall pay such lien if and when it is judicially determined to be valid, and Seller hereby indemnifies the Buyer for all loss arising out of Sellez's failuxe to have a judgment lien so settled and satisfied. Rea] Estate Purchase and Sale Agreement 3 Fortn 603; Rev. 1 l/12/03 �� � Form Approved by VP-Law (fl Nohvithstanding the fore�oin� provisions of Section 3(bl. Buyer shall not be entitled to object to the lien of any of Seller's morteages. Seller shall deliver to Buyer, ��ho shall place of record, good and sufficient releases of the liens of any mortga�es on the Property securin� indebtedness to which Seller is obli�ated to pay ��ithin one hundred eighty (180) days after the fust meetin� of Seller's Board of Directors held after the Closing. In the event Seller shall be unable to obtain said relzases for any reason, Seller shall have the risht to repurchase the Property from Buyer for the Purchase Price and Buyer shall reconvey the Property to Seller free and clear of defects or objections arisin� after the Effective Date upon which this Agreement shall terminate and neither parry shall have any further riehts or obli�ations hereunder exceptthosethat e�pressly survive termination. CLOSL\G 4. (a) Subject to the terms of this Agreement, the Closing shall occur on the Closin� Date. On or before the Closing Date Buyer shall (1) pay the Purchase Price, less the Earnest Money to Seller in cash, by certified check made payable to JP Morgan Chase/Escrow Agent Apex Property and Track Exchange, Inc. or by wire transfer to Seller's account as desib ated by Seller and the Eamest Money shall become the properry of Seller and no longer subject to the terms of this Agreement and (2) such other affidavits or certificates as is reasonably necessary or customary to consummate the transaction. After Buyer has delivered the foregoing items, Seller shall deliver to Buyer (1) a Quitclaim Deed in recordable form, subject to all matters of record and restating the exceptions and reservations set forth in Section 8(the "Deed") conveying to Buyer Seller's interest, if any, in and to the Property, (2) counterparts of the Exchange Assigmnent, and (3) such other afPidavits aud certificates as is rzasonably necessary or customary to consummate the transaction in form and substance acceptable to Seller. PRORATIONS AND CLOSING COSTS 5. (a) Real estate taxes and assessments payable or paid in the year of Closing shall be prorated by Seller and Buyer as of the Closing Date on the basis of the most recent ascertainable taxes assessed against the Property. If the Property is not separately assessed for tax purposes then there shall be no proration of taxes between Buyer and Seller, the parties shall cooperate post-Closing to cause the Properry to be separately assessed and each party shall indemnify the other for any failure to pay real estate taxes and assessments due with respect to the properties constituting the tas pazcel to which the Property is a part. Notwithstanding the foregoing there shall be no proration for taxes to the extent the payment of same has been assumed by a tenant under an existing lease to be assigned to Buyer. All outstanding assessments on the Property levied or due in the year of Closing and afterward shall be paid by Buyer. (b) The parties shall cooperate so that utilities serving the Property that are not the responsibility of a tenant under a lease to be assigned to Buyer at Closing, to the extent feasible, shall be switched imo the name of Buyer as of the Closing Date, so that a final statement can be issued to Seller for the billing period ending on the Closing Date, and so that the first day of the first billing cycle in Buyer's name can begin on the Closing Date. If, however, the final statement covering the final period of ownership by Seller also includes periods of ownership by Buyer, Buyer shall pay Seller at Closing the amount attributable to Buyer's period of ownership. Buyer shall be responsible to pay all utilities serving the Properry due after Closing. (c) Buyer shall pay all closing costs associated with Closing including, but not limited to, any escrow fees, documentary stamps and other recording costs associated with this transaction, excise taxes, the cost of any state, county or local transfer taxes, the cost of the Survey, and the costs associated with any tifle insurance obtained by Buyer. Real Esfate Purchase and Sale Agreement 4 Form 603; Rev. 11/l?/03 • S Form Approved by VP-Law (d) If any real estate broker or agent can establish a valid claim for commission or other compensation as a result of Buyer having used their services in connection with the purchase of the Properry, all such commission or other compensation shali be paid by Buyer. Sellzr shall not be liable for any real estate commissions or finders fees to any parry with respect to the sale of the Property, except amounts due to Staubach Global Services — RR Ina ("Broker") pursuant to a separate a�eement. Buyer acknowledges that Broker has advised, and hereby advises, Buyer that the Broker is acting as on behalf of the Seller with the duty to represent Seller's interest, and Broker is not the asent of the Buyer. If a policy of title insurance is to be obtained, Buyer should obtain a commitment for title insurance cvhich should bz examined prior to closin� by an attorney of BuS�er's choice. Prior to the execution of this A�-ezment, Broker has advised and hereby advises the principals oY this transaction, that this Agreement is bindin� on them, and the principals hereby acknowledae that they have been so advised. Broker has no authority to execute any document on behalf of Seiler, make representations on bzhalf of Seller or bind Seller in any manner. (e) The obligations of the parties in this Section 5, to the extent incurred, shall survive any termination of this Ab eement. DEFAULT Ai�TD REMEDIES 6. (a) In the event of a default by Buyer under the terms of this Agreement, Seller's sole and exclusive remedies shall be: (a) ternunate this Ageement whereupon the parties shall have no further obligations hereunder except those that expressly survive termination, or (b) waive such default and proceed Closin" or (c) obtain specific performance of this Aa eement. If Seller teiminates this A�eement as provided in the previous sentence Seller shail be entitled to retain the Eainest Money. Norivithstanding the foregoing, nothing contained herein shal] waive or diminish any right or remedy Seller may have at law or in equity for Buyer's default or breach of any obtigation hereunder to be performed by Buyer after Closing. It is hereby a�eed that Seller's dama�es in the event of a defae�lt by Buyer hereunder are uncertain and difficult to ascertain, and that the Eamest Money constitutes a reasonable liquidation of such damages and is intended not as a penalty, but as liquidated damages. (b) In the event of a default by Seller under the terms of this Agreement, Buyer's sole and exclusive remedies hereunder shall be to temunate this Agreement and receive a refund of the Eamest Money plus an additional amount from Seller not to exceed ten percent of the Purchase Price equal to the out-of- pocket expenses (including attomeys' fees) incurred by Buyer in connection with this Agreement as evidenced by copies of third parry invoices delivered to Sellzr. Upon such termination and the payment of such sums by Seller the parties shall have no further obligations hereunder except those that expressly survive termination. Notwithstanding the foregoing, nothing contained herein shall waive or dimurish any right or remedy Buyer may have at law or in equity for Seller's default or breach of any obligarion hereunder to be performed by Seller after Closing. NATURE OF SALE 7. Buyer has been allowed to make an inspection o£ the Properry. BiIYER IS PURCHASING THE PROPERTY ON Ai�' "AS-IS WITH ALL FAULTS" BASIS WITH At\'Y AND ALL PATENT AND LATE�'T DEFECTS, LYCLUDING THOSE RELATING TO THE EWIRONNIENTAL CONDITION OF THE PROPERTY, AND IS NOT RELYLI'G ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR llVIPLIED, OF Ai1'Y KLVD WIIATSOEVER FROM SELLER AS TO ANY NLATTERS CONCERNING THE PROPERTY, including, but not limited to the physical condition of the Property; zoning status; tax consequences of this transaction; utilities; operating hisiory or projections or valuation; compliance by the Properry with Environmental Laws (deFined below) or Real Esta[e Purchase and Sale Agreement 5 , Form 603; Rev 1 l/12,�03 �. : Form Approved by VP-Law other laws, statutes, ordinances, decrees, regulations and other requirements applicable to the Property; the presence of any Hazardous Substances (defined below), wetlands, asbestos, lead, lead-based paint or other lead containing structures, urea formaldehyde, or other enviromnentally sensitive buildin� materials in, on, under, or in proximiry to the Property; the condition or existence of any of the above �round or underaround shuctures or improvements, includin� tanks and transformers in, on or under the Property; the condition of title to the Properly, and the leases, easements, permits, orders, licensees, or other agreements, affecting the Property (collectively, the "Condifion of the Property"). Buyer represents and warrants to Seller that Buyer has not relied and will not rely on and Seller is not liable for or bound by, any warranties, Quaranties, statements, representations or information pertainina to the Property or relating thereto (including cpecifically, without limitation, Property inforniation packa�es distributed �vith respect to the Properry) made or fiu-nished by Seller, the mana�er of the Propeity, or any real estate broker or agent representin� or purporting to represent Seller, to whomever made or eiven, directly or indirectly, oratly or in Gvriting. Buyer assumes the risk that Hazardous Substances or other adverse matters may affect the Property that were not revealed by Buyer's inspection and indemnifies, holds harmless and hereby waives, releases and discharges forever Seller and Seller's officers, directors, shareholders, employees and agents (collectively, "Indemnitees") from any and all present or future claims or demands, and any and all damages, Losses, injuries, liabilities, causes of actions (including, without limitation, causes of action in tort) costs and expenses (including, without limitation fines, penalties and judgments, and attomeys' fees) of any and every kind or character, known or unknown, which Buyer might have asserted or alleged against Indemnitees arising from or in any way related to the Condition of the Property or alleged presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or other handling of any Hazardous Substances in, on or under the Property. Losses shall include without limitation (a) the cost of any investigation, removal, remedial or other response action tbat is required by any Environmental Law, that is required by judicial order or by order of or agreeinent with any governmental authority, or that is necessary or otherwise is reasonable under the circumstances, (b) capital expenditures necessary to cause the Seller remaining property or the operations or business of the Seller on its remainin� properry to be in compliance with the requirements of any Environmental Law, (c) Losses for injury or death of any person, and (d) Losses arising under any Environmental Law enacted after transfer. The rights of Sellzr under this section shall be in addition to and not in lieu of any other rights or remedies to which it may be entitled under this document or othenvise. This indemnity specifically includes the obligarion of Buyer to remove, close, remediate, reimburse or take other actions requested or required by any govemmental agency concerning any Hazardous Substances on the Property. The term "Environmental Law" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. The term "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or rea lated under any Environmental Law, and includes without limitation petroleum oil and any of its fractions. The provisions of this Section 7 shall be binding on Buyer, and its heirs, successors and assigns, shall be included in the Deed and shall be covenants running with the land. RESERVATIONS 8. The obligations in this Section 8 shall be binding upon Buyer and its heirs, successors and assigns, shall be included in the Deed and shall be covenants running with the land benefiting Seller and Seller's successors and assigns. For purposes of this Section 8 Grantor shall mean Seller and Grantee shall mean Buyer. Buyer may object to the reservations set forth in Section 8(al below in accordance with the provision of Section 3 and if Seller is unwilling or unable to cure such objection either parry may terminate this Agreement as set forth in Section 3. Rea] Estate Purchase and Sa1e A�reement 6 Form 603; Rev. l l/12/03 05-5�' Form Approved by VP-Law (a) Grantee's interest shall be subject to the rights and interests of Grantor, Grantor's licensees, �,,,� permittees and other third parties in and to all existin� driceways, roads, utilities, fiber optic lines, tracks, � C' wires and easements of any kind whatsoever on the Property whether owned, operated, used or �. maintained by the Grantor, Grantor s licensees, permittees or other third parties and �chether or not of � y .�` �'` public record. Grantor sha11 hace a perpetual easement on thz Property for the use of such existin� �;,` , driveways, roads, uuliries, fiber optic lines, tracks, wires and easements by Grantor and Grantor's '' �: � licensees, permittzes and customers. Grantor shall have a non-exclusive easement for the construction, maintenance and operation of one or more pipelines or fiber optic lines and any and all communications facilities as may be located in the future on the Property within 60 feet of the center line of any Main Track on or adjacent to the Property and as may be presently located on the Properry. (b) Grantee's interest shall be subj ect to a reservation to Grantor of all coal, oil, gas, casins-head �as and all ores and minerals of every kind and nature including sand and gravel underlying the surface of the Property, together with the full ri�ht, privilege and license at any and all times to explore, or dri11 for and to protect, conserve, mine, take, remove and market any and a11 such products in any manner which will not damage structures on the surface of the Properry, togethez with the right of access at all times to exercise said rights. (c) Any improvements constructed or altered on the Property after the date Grantor quitclaims its' interest to Grantee shall be constructed or altered in such a manner to provide adequate drainage of water away from any of GranYOr's railroad tracks on nearby property. REPRESENTATIONS 9. Buyer represents and warrants to Seller that if Buyer is other than a natural person or persons that it is a validly formed munic�al corporation under the laws of the State of Minnesota; that it is in good standing in the state of its organization and in the state in which the Properry is located; that it has a11 requisite authorizations to enter into this A�reement; and that the puries executing this Agreement on behaif of Buyer are duly authorized to so do. Buyer represents and warrants to Seller that it is not subject to any bankruptcy proceeding. Seller represents and warrants to Buyer that it is a validly formed corporation under the laws of the State of Delaware; that it is in good standing in the state of its organization and in the state in which the Property is located; that it is not subject to any bankruptcy proceeding; that it has all requisite corporate authorizations to enter into this Agreement; and that the parties executing this Agreement on behalf of Seller are duly authorized to so do. It shall be a condition of each party's obligations to Close this transacrion that the representations and warranries of the other parry contained herein are true and accurate as of Closing, provided, however that if one parry waives such condirion by proceeding to Close with lrnowledge that any of the second party's representations or warranties are inaccurate, the second party shall have no liability with respect to such inaccuracy Irnown by the fust party. MISCELLANEOUS 10. (a) Any notice under this Agreement must be written. Notices must be either (i) hand-delivered; (ii) placed in the United States certified mail, return receipt requested, addressed to the recipient; (iii) deposited with a nationally recognized ovemight delivery service, addressed to the recipient as specified below; or (iv) telecopied by facsimile transmission to the parry at the telecopy number listed beiow, provided that such transmission is followed with a copy sent by overnight delivery or regulaz mail to the address specified below. Any notice is effective upon deposit with the U.S. Postal Service or with the overnight delivery service, as applicable; all other notices aze effective when received. All notices shall be addressed to the address of the recipient indicated below the signature of such party below. Either party may change its address for notice by proper notice to the other party. Real Estate Purchase and Sale Aa eeme�t 7 Foan 603; Rev. l lll2/03 05-5 8 Form Approved by VP-Law (b) If the approval of any govemmental a�ency is required for the sale of Seller's interest (if any) in the Property, it is understood and a�eed that SeAer's obli�ations under this Agreement are condirioned upon obtaining such approcal and that both parties shall use their bzst efforts to obtain such approval. If such approval cannot be obtained by the Closin� Date, Seller may elect to extend the Closin� Date to a date no later than ninery (90) days after the original Closing Date. In the event said approo�al cannot be obtained by such extended date, either party may terminate this A�reement �vithout liability to the other, except that the Earnzst Money shall be refunded to Buyer and thereafter neither party shall have any obliQation hereunder except those that expressly survive termination. (c) '_�Tothin� in this A�reement shall prevent Seller from discontinuing sei� ice over any railroad line or lines by �vhich rail service may be provided to the Propeny. (d) If, prior to Closin�, the Properry or any porCion thereof is dzstroyed or damaged, or becomes subject to a taking by virtue of eminent domain to any extent whatsoever then either party may terminate this A�reement by written notice to the other within thirry (30) days after notice of such fact (but in any event prior to Closin�). If so terminated, the Earnest Money shall be refunded to Buyer and neither party shall have any further obligations hereunder except those that expressly survive termination. If not so terminated the parties shall proceed with the Closing. (e) Time is of the essence of each of the parry's respective obligations under this Agreement. Whenever a date specified in this Ao eement falls on a Saturday, Sunday, or federal holiday, the date will be extended to the next business day. (� This Agreement and, to the extent executed, the Entiy Agreei�ient, contains the entire Agreement between Seller and Buyer with respect to the Propzrry. Oral statemznts or prior written matters not specifically incorporated into this Agreement are superceded hereby. No variation, modification, or change to this Agreement or the Entry Agreement shall bind either parry unless set forth in a document si�ned by both parties. No failure or delay of either party in exercising any nght, power or privilege hereunder shall operate as a waiver of such party's right to require strict compliance with any term of this Agreement. The captions above the section numbers of this Agreement are for reference only and do not modify or affect this Agreement. Each party has had the opportuniry to have counsel review this Aa eement and the Entry Agreement and, therefore, no rule of construction that any ambiguities aze to be resolved against the drafring pazty must not be employed to interpret this Agreement, the Entry Agreement or any closing document. This Agreement and the Entry Agreement may be executed in multiple counterparts, each o£ which shall be deemed an original and all of which shall constitute the same Agreement. This Agreement and the Entry Agreement are intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any term or provision of this Agreement or the Enhy Agreement or the application thereof to any person or circumstance shall for any reason and to any extent be held to be invalid or unenforceable, then such term or provision shall be ignored, and to the ma7cimum extent possible, this Agreement and the Entry Ao eement (to the extent executed) shall continue in full force and effect, but without giving effect to such term or provision. (g) Buyer may not assign its interest in this Agreement or the Entry A�reement without Seller's prior written consent. The provisions of this Agreement and, to the extent executed, the Entry Agreement, shall bind Seller, the Buyer, and their heirs, executors, administrators, successors and assigns and shall and inure to the benefit of the Seller, the Buyer and their heirs, executors, administrators, permitted successors and assigns. If Buyer is more than one person or entity, Buyer's obligations under this Agreement and, to the extent executed, the Entry Agreement, shall be joint and several. Real Estate Purchase and Sale Agreement R Fom� 603; Rev. I I/l2/03 c�-58 Form Approved by VP-Law (h) This Agreement relates only to land. Unless othenvise herein provided, any conveyance shall exclude Seller`s railroad tracks and appurtenances thereto, Seller's buildin�s and any other improvements on the Propzrty, all of �vhich may be removed by Seller «ithin 90 days follo��in� conveyance of the Properry, and if not removed, shatl be deemed abandoned by the Seller without oblisation on the Seller's part and shall thereafter be and become the Property of the Buyer in place. Notwithstandin� the foreeoins, Seller shall not have to remove any improvements or fixtures for which an easement has been reserved hereunder or in the deed. (i) Seller is not a foreia person as the term is used and dzfined in Section 144> of the Internal Recenue Code of 1954, as amended and the regulations promulgated thereunder. Seller shall, upon request of Buyer, complete an affidavit to this effect and deliver it to Buyer on or before closing of said sale. (j) The provisions of Sections 5-3 and Section 10 of this A�reement sha11 survive Closing and shall not be merged into the Deed or any other document delivered at Closing. The provisions of Section 9 of this Agreement shall survive Closing for a period of one year and shall not be merged into the Deed or any other document delivered at Closing. Nothing in this section shall alter any requirement in any other Section of this Aa eement for the provisions of such section to be incorporated into the Deed, such as Sections 7 and 8 (k) If any action at law or in equiry is necessary to enforce or interpret this Aa eement, the prevailin� parry will be entitled to reasonable attomeys' fees, costs, and discovery or investi�ation expenses in addition to any other relief to which that party may be entitled. (I) SELLER AND BUYER IItREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN.4i�IY ACTION, SUITE OR COiNTERCLAII�1 ARISING N CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO, THIS AGREEMENT. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Real Estate Purchase and Sale Agreement q Foan 603; Rev. I1/12/03 05 -58 Form Approved by VP-Law IN WtINESS WIIEREOF, Buyer and Seller have executed this Agreement to be effective as of the Effecrive Data. : ' CITY OF ST. PAUL Buyer's name as it is to appeaz on deed (PRL�ITED/TYPED) Print Buyer's Address: Buyer's SSN or EIN: SELL�R THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY B Print Title: Seller's Address: c/o Staubach Global Services, Inc. Atm: Roger Schwinghammer 4105 Lexington Avenue North, Suite 200 Arden Hills, MN 55126 FaY: 651-481-9361 Phone:651-415-2710 Date of Seller's Execution (Effective Date) Real Estate Purchase and Sale A�reement 1 p Foan 603; Rev. 11/l?/03 05-5� EXHIBIT B ASSIGVIVIENT OF RIGHTS LNDER CONTRACT TO REAL ESTATE v5 -58 Form Approved by VP-Law ASSIGNNIENT OF RIGHTS UNDER CONTRACT TO REAL ESTATE APEX PROPERTY & TRACK EXCE32,�\'GE, INC., a Massachusetts corporation, of 2036 Washington Street, Hanover, Vlassachusetts 02339, (hereinafter called "Assignee"), THE �tiRLIt�TGTON 1�TORTHERi�1 A!�'D SANTA FE RAlI.�VAY COMPANY, a Delaware corporation, (hereinafter called "Exchangor"), and CITY OF ST. PAUL, a Minnesota municipal corporation (hereinafter called "Buyer"). Whereas, Exchangor and Buyer heretofore entered into an Agreement dated , 2004 (the "ContracY'), wherein Exchangor ap ees to assign the rights to the Contract, but not the obligations and warranties over to Assia ee, as it pertains to the following described Relinquished Property: "See EXHIBIT "A" attached hereto and made a part hereof'. tVow, Therefore, Exchangor hereby assib s to Assignee all of the Exchangor's rights under the Contract, as contemplated by Treasury Regulafions Section 1.1031 (k)-1(g)(4)(v), including all deposits received prior to issuing a Deed transferring legai title. Exchangor's obligations and warranties under the Contract remain with the Exchangor, including the autharity to issue a Deed transferring legal title to the Relinquished Property over to the Buyer. Assignee previously represented, warranted and covenanted to Exchangor, under the Master Exchange Agreement dated January 1, 1997, that it will not transfer, assign, mortgage or hypothecate the rights that it is receiving from the Exchangor and that Assignee shall not amend, terminate, modify, supplement or otherwise alter any term, condition or other provision of the Contract. At the same time the Aeed goes into effect transferring legal title to the Buyer, rights received under this Assignment of Rights are transfened to Exchangor. Assignee is participating in this transaction only as a Qualified Intermediary and that for purposes of any dispute regarding the Relinquished Property, Exchangor and Buyer shall look solely to each other with respect to resolving any such dispute and neither one shall look to the Assignee. This shall be binding upon and shall inure to the respective heirs, successors and assigns of Exchangor and Buyer. This instrument may be executed in any number of counterparts, each of which, when duly executed, shall constitute an original hereof. Aeat Estate Purchase and Sale Agreement 1 Fovn 603; Rev. 11(12f03 . : Form Approved by VP-Law In tiVitness YVhereof, the parties hereto have esecuted this Assi�unent of Rights Under Contract, to be effective as of the date on which the last party hereto sia s. Exchangor: THE BURLIi\TGTON NORTHERi\T AND SANTA FE RAILWAY COMP?�NY, a Delaware corporation : D. P. Schneider General Director Real Estate Date: Assignee: APEX PROPERTY & TRACK EXCHANGE, INC., a Massachusetts corporarion S Buy CIT aM By: Nan Titlf BN.' Date: Real Estate Purchase and Sale Agreement 2 Foan 6U3; Rev. ] l/12/03 05 5 8 EXHIBIT C ENTRY AND CO�tFIDENTIALITY AGREEMENT £0/Zll[ i 'nag :£09 � luamaa�9y a�es pue asey�nd a�eas� �ea� •peoiit�g3o sat�rnt��e pue uot�eaado a3zs au� ao `pEOSjte� 30 �jaadozd io paqpzoi `sx�Ea� ain;n3 30 �uasaid;o asn io aoua�scxa aq� q�im a�uaia3za�ui zo o� iaBuep 3o aoinos e aq o� acuta !ue ;e zou pus zauuew E q�ns ut pue siaploq asua�rl io saauiauad `saassai iayzo io p�oitteg 3o syuacuanoidun zo suot;eaado aq� u�Tm aaa�a�ut �ou TTtm �zcg iauuecu z m f�cadoid ac� ;o s�ianms pue suoi��unusxa tis �onpuo� o� saa.�e aa�nzuad 'S£Z£ lE NL�I stio eacnny� �� la�seuzpsog s,peo�tz� oa apew aq Ileqs a�uou q�ns '�Sanms io uot�EUt[uexa `l�qua u�ns �fue duunp �uasaid aq oz l�u aq� saq peo.�teg pue s�fanans io suoUeunzzexa `,SUUa u�ns �iue oz ioud s�isp ssamsnq (s) ant3 �seai �e a�nou pao�rsg anc2 0l saai°s aaunzuad (c� �uot�ai�sip ajos s,peo.�reg iIi FI2i�Lj'yTM 2(1 �ELiI lEAOSCIC�E i[�Ti�M `peozicEg cuo.� jenoiddz tI2'J�?SM SOiSC� p2IIIE�ClO s�q aal�?�ad ssaiun l�iadozd aq� uo JI�El� p20.i[IES IiIIE 30 autliazuao au� 30 �aa3 �SZ) ang-,S�uanu uiqztm `sieuazecu iaqlo io stoo� 'luauidmba pazTUSqoam �ue aio�s io aoeid io `�autu�euz io�pue �uacudmba paziuEq�acu 8utsn ,�7cniz�� iaq�o Fue io suot�e8«sanui `sisa� Fue �onpuo� oz pa��ruuad aq aa��iuuad jlzqs sa�ueasuzn�zio ou zapun pue �aadoid aq� iapun io uo 30 BuT�sa� antsni�ut �ftje�tslqd ,ius motlz io zonpuo� tou tieqs aa�anuiaa `�uco3aio3 aqa �uipuE�sqzt,x�oN •asuadxa pue �soo aios s,aa�nzuad �� IIE `�essa�au biqeuossaa aq o� aunuaa;ap tizus aau?waad se saipn7s pue s�sal `snoia�adsut za�o pue �uuaautnua q�ns axecu oz puz sFaeans q�ns �onpuo� puz;oaiaq� uor�tpuoo aq� ��adsui 6zUz puz smoq ssacnsnq Ieuuou 8uunp ,fjuo ,C�.tadoid au� ialua Ileqs aaa�cuuad (z) 'I,2I.LN3 �J�iI�i2i��i�i0� SNOI.L�I2I.LS32I 'Z 'asn ao asodind zaqzo ou zo3 pue uo[�rstnb�e jei�ua�od pres zo� �S�zadoid aq� nut��adsut;o asodind aq1 io3 �Cuadozd aq� zazua o� `sa�ueiquzn�ua iaq�o zo `suati `s�uauzas2a `sasua�rl `saszai !ue `uoc�eltuzci �noq�tn� `au[pni�ar sat�ed pirq�3o sale�sa pue `sxsaiaaur `siqou IIs oa a�afqns `asaa�ci aiqe�oeaa °anTSni�xa-uou z aa;xi s�uez� �iqaiaq pzozite� °�uaucaainy siql 3o suocscnoid aq� qzcm aouepzo��e ui '�IgyK3 30 .LHrJI2i ' i :nuimollo3 aqa oz aa.u4a sai�sed aqa `paapalmocnloE �iqaiaq ais q�iqm�o F�uatoS3ns pue �dca�ai aqz `uopziapcsuo� ajqenien pue poo� .taq�o pue °utaaaq pauiE�uoo s�ueuanoo IEn�nuz aq; `uTaiaq pa�ezod.io�ut aie q�curo `sie�i�ai �utoSazo3 aqz;o uocz�iapisuoo ut `�03fl2I�H.L le10N ��uauzaa �y sicg ut uuo; �as svoi�ipuo� puz suuaa au� uo dino ssa��e u�ns �imaad o� nui11im sr pzoz�tag °Sy��� �F�aadoid acg 3o uot�ipuoo aq� l�adsut o� �adoad at{� oz ssa��e pa�sanbai szq aa�znuzad `�zadozd aqz �o uoil?s[nb�e 2�j� a�zniena o� zapao ur `Sy��� �;��iiuo� aieg aq1 ui quo3 aas s°uiuzacu ac� a��q Ileqs paugap asinuaq�o aou puE uraaaq pasn suua� paztlz;tde� �( aq�) uraiaqz quo3 ;as (sac)�iy�adoid ac�� nutusa�uo� 3o sa pazep („�as.quo� a�es„ au�) zuauiaaz�y aj�s pus aszq�md ale�sg i�a� uizua� �zqa o�ui paiazua a�aq iailas sa peozite� pue ia6ng sz aazic�iad `S`d32I3H.k1 '�.�aa�7ctniad„) 'IC1F�d 'S.S 30 I�.I.I� aul PT� �„PBOZI?E2I,�) uot�siodzo� aiemslaQ E`I>NF�'�O� I�F�A1'IIY2i 33 F�.LATb'S QNS' I�'2I�I.L2I0\ �\O.LrJ,�I'I2T11g 3HL �q �mojaq pam�ap) azeQ anT�oa}33 aqz 3o se apzcu si (, .L��332IJ� I�LI'I�'I.T�\3QI3�O� Qi�il� AZLLI�3 SIH_L .LA����2IJ�' �i.T.I'IF�I.Lt�3QI3_ROa QI��' Si2I.L�� msZ-� !q panoiddy uuo3 $5-�1J �� : Form Approved by VP-Law (c) Permittee shall comply with, and cause its a�ents to comply with, any and all laws, statutes, regulations, ordinances, rules, orders, common law, covenants or resh ("Legal Requirements") applicable to the Properry and their acticities thereon and any and all safety requirements of Railroad and if ordered to cease any activities upon the Property by Railroad's personnel Permittee shall immediately do so. Notwithstanding the fore�oing risht of Railroad, the pazties aeree that Railroad has no duty or obli�arion to monitor Permittee's activities on the Property to detemune the safe nature thereof, it beina solely the Permittee's responsibility to ensure that Permittee's activities on the Properry are safz. Neither the exercise nor failure by Railroad to exercise any rights gxanted in this Section will atter the liabiliry allocation providzd by this Aa eement. (d) Permittee shall not harm or damage the Properry or cause any claim adverseto Raikoad. (e) Permittee shall promptly reimburse Railroad for any additional costs/expenses incurred by Railroad in connection with such safety requirements (including, but not lunited to, £urnishing a flagman if Railroad determines that fumishing a flagman is necessary during any such exarrunations or surveys). (fl Peanittee shall not contact any govemmental or quasi govemmental authoriries conceming the Properry without Railroad's prior written consent and Raikoad shall have the right to be present dm any such contacts. (g) Pennittee will not have more than 5 persons present on any individual Property at a one time. Any officer, employee, agent, contractor, consultant, lender, surveyor or attorney entering the Properry on behalf of or at the direction of Permittee, shall be deemed agents of Permittee for purposes of this Agreement. 3. TERM. This Aa eement shall commence on the date Railroad executes this Agreement as indicated below its signature (the "Effective Date") and shall be in effect until the earlier of the date the Sale Contract is terminated pursuant to its terms, or the Closing Date. No expiration or termination of this Aa eement shall release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events occuning prior to the date of termination or expiration. below: 4. INSURANCE. Permittee shall obtain and maintain the insurance required A. Commercial General Liability Insurance. This insurance shall contain broad form wntractual liability with a combined single limit of a minimum of $1,000,000 each occunence and an aggregate limit of at least $ 2,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liabiliry ♦ Products and completed operations Real Estate Purchase and Sale Agreeme¢t 2 Fortn 603; Rev. I Ui2/03 �y • Form Approved by VP-Law B. Business Automobile Insurance. "I`his insurance shall contain a combined single limit of at least �1,000,000 per occurrence, and include covera�e for, but not lunited to the follo�ving: ♦ Bodily injury and properry dama�e ♦ Any and all vehicles owned, used or hired C. �Vorkers Compensation and Employers Liability insurance including coveraee for, but not limited to: V ♦ Permittee's statutory liabiliry undzr the worker'; compensation laws of the state(s) in which the wrork is to be performed. If optional under State law, the insurance must cover all employees anyway. s Employers' Liability (Part B) lvith limiCS of at least �500,000 each accident, $�00,000 by diseasz policy limit, ��00,000 by disease each employee. Other Requirements: Pemuttee agrees to waive its right of recovery against Railroad and Indemnitees (defined below) for all Liabilities (defined below) that could be insured against by the insurance required to be maintained hereby. In addirion, its insurers, through the terms of the policy or policy endorsement, must waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Pernuttee further waives its right of recovery, and its insurers also waive their right of subrogation against Railzoad for loss of its owned or leased property or property under Pennittee's care, custody or control. All policy(ies) required above (excluding �Vorkers Coinpensation) shall include a severability of interest endorsement and Railroad and Staubach Global Services, Inc. shail be named as ati additional insured with respect to work perfarmed under tl�is agreement. Severability of interest and naming Railroad and Staubach Global Services, Inc. as additional insured shall be indicated on the certificate of insurance. Prior to commencing the Work or entering the property, Permittee shall fumish to Rail�oad an aeeeptable eertificate(s) of insurance including an originat signatuce of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) shall contain a provision that obligates the insarance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this agreement, Permittee will make available any required policy covering such claim or lawsuit. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Permittee's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Permittee shall not be deemed to release or diminish the liability of Permittee including, without limitarion, liabiliry under the indemnity provisions of this Ao eement. Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage. Real Estate Pumhase a�d Sale Agreemen� � Foan 603; Rev. I 1/I2/03 C�S-5'8 Form Approved by VP-Law For purposes of this secrion, Railroad shall mean "Burlina on Northem Santa Fe Corporation", "The Burlington \orthem and Santa Fe Railway Company" and the subsidiaries, successors, assi�ns and affiliates of each. 5. CO�LETION OF NSPECTIO�I. Upon completion of any inspection by Pemuttee or its agents on the Properry or upon the expiration or termination of this Agreement, whichever shall occur first, Permittee shall, at its sole cost and expense: (a) remove all of its equipmznt from the Property; (b) report any damage to the Property arisin� from, �owing out of, or connected with Permittee's entry upon the Property and restore the Property to their condition immediately prior to such entry by Permittee or its agents; (c) remedy any unsafe conditions on the Property created by Permittee or its agents; and 6. INDENINITY. TO THE FULLEST EXTENT PERD'IITTED BY LAW, PERNIITTEE SfIAI.L INDENINIFY, RELEASE, AEFEND AND HOLD HA.RMLESS RAII.ROAD Ai�TD KAILROAD'S AFFILIATED COMPAi�TIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "I1VDE�TITEES") FOR, FROVI A\D AGAINST ANY AND ALL CLAIVIS, LIABILITIES, FINES, PENALTIES, COSTS, DA�TAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS DEl���DS, NDGViENTS A1VD EXPENSES (INCLUDIVG, �VITHOUT LINIITATION, COURT COSTS, ATTORi�'EYS' FEES AND COSTS OF INVESTIGATION) (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF A,'�'Y PERSON OR ENTITY DIRECTLY OR IVDIRECTLY ARISI\�G OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR L1' PART): (a) ANY BREACH OF THIS AGREEMENT BY PERNIITTEE INCLUDING, BUT NOT LINIITED TO, PERivIITTEE'S OBLIGATION TO COVfPLY AND CAUSE ITS AGENTS TO COivIPLY �VITH LEGAL REQUIREMENTS INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION AND CERCLA, (b) Ai�'Y RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS AGREEMENT, (c) PERMITTEE'S OR ITS AGENT5 ACTIVITIES UPON OR USE OF AA'I' OF THE PROPERTY, OR (d) ANY ACT OR OD'IISSION OF PERNIITTEE OR PERMITTEE'S AGENTS OR Ai�'YONE DIRECTLY OR INDIRECTLY ENIPLOYED BY ANY OF TI�M, OR ANYONE THEY CO\�TROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDE�ITITEE. TFIE ONLY LIABILITIES WITH RESPECT TO ��IICA PERIVIITTEE'S OBLIGATION TO INDEMNIFY TFIE Real Estate Purchase and Sale Agreement 4 Fortn 603; Rev i I/l2/03 05-5� Form Approved by VP-Law � LtiDE�ZTEES DOES NOT APPLY ARE LTABILITIES TO THE EXTENT ' PROXI:VIATELY CAUSED BY TIiE GROSS NEGLIGENCE OR �VILLFUL . MISCO�TDUCT OF AN L�DE_l� 7. CONFIDENTIALITY. Except to the extent otherwise required by Legal Requirements, Permittee shall not disclose to any third parties any information Permittee discovers or obtains concemin� the Property as a result of any inspections, surceys, tests or other activities conducted with respect to the Property ("Confidential Informafion") includins, but not limited to, any oral, electronic or written informarion provided by Raikoad or on Railroad's behal£ Nohvithstanding the fore�oing, Buyer may disclose Confidentiat Infonnation to those of Buyer's a�ents direcfly involved �oith Permittee with respect to the acquisition of the Property, provided such individuals and firms have aereed to maintain the confidentiality of Confidential Information pursuant to this Agreement and provided fiirther that Pemuttee sha11 be liable hereunder for any breach by such parties of such obligation. Confidential Information shall not include information that is or becomes in the public domain other than as a result o£ a breach by Permittee or its agents. If Permittee or any of iYs agents receive a request to disclose any part of the Confidential Information, Permittee shall (a) notify Railroad immediately of the existence, terms and circumstances of such request, (b) consult with Railroad on the advisability of taking legally available steps to resist or narrow such requests, and (c) if disclosure of such Confidential Information is required to prevent Permittee being held in contempt or subject to other penalty, shall (i) furnish only such information as is legally required to be so disclosed, and (ii) use its best efforts to obtain an order or other reliable assurance that confidential treatment will be afforded to the disclosed Confidential Information. If the transaction contemplated in the Sale Contract does not close for any reason then Permittee shall, promptly upon Railroad's request, foitivard to Railroad all Confidential Infonnation without keeping any copies thereof. 8. DEFAITLT. Permittee acknowledges and agrees that in the event of a breach of this A�reement, Railroad �vould be irreparably harmed and could not be made whole by monetary damages. Accordingly, in addition to any other remedy to which it may be entitled at law, in equity or under this Agreement, Railroad shall be entitled to injunctive relief (without the posting of any bond and without proof of actual damages) to prevent such breach and/or to compel specific performance. Permittee and its agents shall not oppose the granting of such relie£ In the event of any breach by Pernuttee or its agents under this Agreement, Railroad may terminate this Agreement and shall be entitled to any other remedy available at law, in equity or under this Agreement. No failure or delay of either party in exercising any right, power or privilege hereunder shall operate as a waiver of such party's right to require strict compliance with any term of this Agreement. 9. GOVERNtNG LAW, JLJRY WAIVER. All questions conceming the interpretation or application of provisions of this Agreement shall be decided according to the laws of the State of Texas without regard to principles of conflicts of law. Any action relating to this Agreement may be brought in the courts of Tarrant County, Texas, Permittee hereby consenting to the jurisdiction and venue of such courts. PERMITTEE AND RAII,ROAD Il2REVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY NRY IN ANY ACTION, SUTTE OR COUNI'ERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTF�RWISE RELATING TO, THIS AGREEMENT. Real Estate Purcfizse and Sale Agreement q Form 603; Rev. 11/12iO3 b.�-58 • •' n Form Approved by VP-Law � 10. SALE CODITRACT. The provisions of this A�eement shall be deemed incorporated into the Sale Contract, shall survive the closin� thereunder and shall not be mereed into the deed conceying thz Properry or any other closing document, provided, however that nothin� in the Sale Contract shall limit or modify any remedy available to Railroad under this Agreement for a breach by Permittee of its obligations under this AQreement. All notices hereunder shall be delivered in the manner set forth in the Sale Contract. Date. IN WITNESS �VHEREOF, this Agreement has been duly executed as of the Effective PERMITTEE: CITY OF ST. PAUL By: Print Name: I::1 :��\�3 THE BURLINGTON NORTHERN AND SANTA FE RAiLWAY COMPANY Print Name: Title: Date of Execution by Railroad (Effective Date) Real Estate Purchase and Sale Agreement (� Form 603; Rev. 1 UI2/03