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HomeMy WebLinkAboutPurchase and Sale Agreement for well 9 expansionClosing to Scott Darling at TitleOne Corporation who will act as the Closing Agent ("Closing Agent") for this transaction. The Purchase Price shall be payable as follows: 1.3.1 An earnest money deposit of One Thousand and No/100 Dollars ($1,000.00) shall be paid by Buyer within ten (10) business days of the execution of this Agreement (the "Deposit"). The Deposit shall be payable, in trust for the benefit of this transaction, to TitleOne Corporation, 1101 W. River Street, Suite 201, Boise, ID 83702, (the "Title Company"), attention Scott Darling. The Closing Agent shall hold the Deposit in an escrow account (the "Escrow"), with any interest accruing to Buyer. The amount of the Deposit and any accrued interest shall be applied to the Purchase Price at the Closing of the purchase. 1.3.2 The remaining balance of the Purchase Price of Thirty Four Thousand and No/100 Dollars ($34,000.00) shall be paid in cash or its equivalent, at the close of Escrow (the "Closing"). 1.4 Conveyance of Title. Title to the Real Property shall be conveyed by a Warranty Deed in the form attached hereto and by this reference incorporated herein as Exhibit 1.5. Title to the Real Property shall be marketable and insurable and shall be free and clear of all liens, encumbrances, and restrictions, exclusive of (i) real property taxes for the current year which are not due and payable on or before Closing, and (ii) liens, encumbrances, and conditions accepted in writing by the Buyer on or before CIosing. 1.5 Title Insurance. 1.5.1 Title Commitment. on the acceptance of this Agreement by the Seller, the Parties shall order a commitment for an ALTA standard property owner's title insurance policy ("Title Commitment") to be issued by Title Company, covering the Real Property. 1.5.2 Unapproved Exceptions. If any exceptions shown on the Title Commitment are not approved in writing by the Buyer before Closing and cannot be removed by the Seller by Closing, then the Buyer shall have the right to terminate this Agreement, and each Party shall be fully released and discharged from any further obligations under this Agreement. 1.5.3 Policy. At Closing, the Buyer may purchase an ALTA standard or extended property owner's title insurance policy ("Policy") at Buyer's sole expense in the insured amount of the Purchase Price of the Real Property. 1.6 Possession. The Seller shall deliver actual possession of the Real Property to the Buyer at Closing. 1.7 Prorated Taxes. Taxes assessed by Ada County on the Real Property shall be prorated and paid by Seller based on the last tax assessment available before Closing. 2. RE WARRANTIES, AND COVENANTS OF THE SELLER. The Seller represents and warrants to, and covenants with, the Buyer as follows: 2.1 Authority of the Seller. The execution, delivery, and consummation of this Agreement by the Seller has been duly approved in accordance with applicable law and any COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT - 2 documents or instruments governing the Seller. The execution, delivery, and consummation of this Agreement by the Seller will not, with the passage of time, the giving of notice, or otherwise, cause the Seller to be in violation or breach of any law, regulation, contract, agreement, or other restriction to or by which the Seller or the Real Property is subject or bound. 2.2 Consents. Except as disclosed in writing to the Buyer before the Closing, Seller is not required to obtain the approval or consent of any person, firm, or other entity to permit the Seller to consummate the transactions contemplated by this Agreement. 2.3 Property Ownership. The Seller owns and possesses all right, title, and interest in and to the Real Property free and clear of all covenants, conditions, easements, liens, and encumbrances. 2.4 No Litigation. There is no equitable, legal, or administrative suit, action, arbitration, or other proceedings pending or threatened against or affecting the Seller or the Real Property. 2.5 Information to be Provided. Within ten (10) business days after the date this Agreement is accepted by the Seller, the Seller shall deliver to the Buyer the following: 2.5.1 Contracts. All contracts of any kind or nature that will survive the Closing and that relate to the Real Property. 2.5.2 Leases. A copy of all leases relating to the Real Property, together with any amendments to them. 2.5.3 Permits. A copy of any licenses, certificates, permits, approvals, conditions or similar items, in the Seller's possession relating to any portion of the Real Property. 2.6 Conduct Pending Closing. From the Effective Date to Closing, the Seller shall (i) maintain the Real Property in good repair and condition, (ii) continue to operate the Real Property in the manner previously operated by the Seller, (iii) not enter into any new leases or licenses relating to the Real Property, other than in the ordinary course of operating the Real Property, and (iv) perform all acts necessary to insure that the representations, warranties, and covenants of the Seller shall be true, complete, and accurate in all respects on and as of the date of closing to the same force and effect as if made at Closing. Buyer acknowledges that the Seller's Ada County Parcel No. 51212438770 which includes the Real Property is currently being marketed for sale. From the Effective Date of this Agreement, any contract for sale of any portion of the real property described by Seller's Ada County tax parcel No. S 121243 8770 shall be made subject to this Agreement. 2.7 Access to Real Property. After the Effective Date of this Agreement, the Buyer and the Buyer's authorized representatives shall have reasonable access to the Real Property. 2.8 Indebtedness. The Seller shall pay all indebtedness, obligations and liabilities incurred in connection with the Real Property and the operation of the Real Property for the period ending midnight of the date of Closing. COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT - 3 3. CONDITIONS PRECEDENT TO CLOSING. 3.1 Conditions Precedent to Obligations of the Buyer. The obligations of the Buyer under this Agreement are subject to the satisfaction of the following conditions: 3. 1.1 Property Boundary Adjustment. a. Before Closing, Buyer shall have obtained, at the Buyer's sole cost, tentative approval of the City of Meridian of a property boundary adjustment ("PBA") of the Real Property pursuant to Section 11 -6B -S of the Meridian City Code. Seller shall cooperate with the PBA application, including but not limited to the execution of affidavit(s) of legal interest which are substantially in the form attached hereto and by this reference incorporated herein as Exhibit 3.1.1(a). b. Before Closing, after Buyer receives tentative approval of the PBA application, Buyer shall obtain at Buyer's sole expense, a legal description of the Real Property by a registered surveyor licensed by the State of Idaho which shall be attached hereto and by this reference incorporated herein as Exhibit 3.1.1(b). c. As a condition of approval of the PBA, Buyer shall obtain at Buyer's sole cost, a new legal description of the Retained Property by a registered surveyor licensed by the State of Idaho. d. As a condition of approval of the PBA, the Buyer shall obtain, at the Buyer's sole cost, a new certified Record of Survey by a registered surveyor licensed by the State of Idaho depicting the changes to the properties affected by the PBA. e. Any other conditions of approval of the PBA, which shall be fulfilled at Buyer's sole cost and expense. 3.1.2 Relocation of Utility Easement(s) and Associated Infrastructure. Before Closing, Buyer shall have successfully negotiated new Intermountain Gas and Century Link Easements, and Buyer shall have caused the associated underground utility infrastructure to be relocated on the Retained Property to a location as generally depicted in Exhibit 1.1. All costs related to this condition shall be borne by Buyer. 3.2 Other Conditions Precedent to Closing. 3.2.1 Re resentations and Warranties True. The representations and warranties of the Seller are true, complete, and accurate as of the date of this Agreement and as of the date of Closing as if made as of such date. 3.2.2 Covenants Performed. The Seller and Buyer shall have performed all obligations, covenants and agreements to be performed before Closing as set forth in this Agreement. 3.2.3 Title Policy. The Title Company is prepared to issue a policy in accordance with the provisions of Section 1.6.3. COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT - 4 3.2.4 Execution and Delivery of Documents. The Seller (and others where required) shall have executed and delivered to the Closing Agent the following: (a) The Warranty Deed; (b) The Access Easement Agreement; and, (c) Any other documents necessary to effect the transfer of title contemplated by this Agreement. 4. CLOSING. 4.1 Closing Fees. Buyer shall be responsible for paying all of the Closing Agent's Closing fees at Closing. 4.2 bate of Closing. The Parties shall submit all required documents to Closing Agent in advance of the planned Closing date of October 1, 2016, or at such other time, date, and place as may be mutually agreed between Seller and Buyer. Unless otherwise mutually agreed, if this transaction has not closed by October 31, 2016, this Agreement shall be deemed to be canceled. If the failure to close is due singularly to either Buyer's or Seller's inaction, the remedies set forth in Section 6 shall apply as if the non -acting Party had committed a default. If the failure to close is due to mutual decision or joint inaction by Buyer and Seller, the Deposit shall be returned to Buyer, any Title Commitment termination fee and Escrow fees charged by the Title Company shall be split equally between the Parties, and any other costs that have been incurred shall be the obligation of the Party that incurred the same. 4.3 Closing Agent Instructions. Buyer and Seller shall execute and deliver to the Closing Agent instructions on the form generally provided by the Closing Agent with such modifications as are reasonably agreed to by Buyer and Seller. 5. DOST -CLOSING OBLIGATIONS. 5.1 As soon as practicable after Closing, as a condition of approval of the PBA, Buyer shall obtain new tax parcel numbers from the Ada County Assessor. 6. REMEDIES. 6.1 Default by Buyer. If Buyer shall default in the performance of any of the terms and conditions of this Agreement prior to Closing; if the Closing shall not occur through the fault of Buyer, or if Buyer's FY 2017 budget fiords for expenses related to this Agreement are not appropriated by the Meridian City Council and therefore Buyer does not close the purchase of the Real Property, Seller shall, as its sole remedy, retain the Deposit as liquidated damages, and this Agreement shall be canceled. 6.2 Default by Seller. If Seller shall default in the performance of any of the terms and conditions of this Agreement prior to Closing, or if Seller is otherwise unable to deliver merchantable title to the Real Property, Buyer may, at its option, (i) rescind this Agreement and COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT - 5 recover from Seller the Deposit, or (ii) pursue any other legal or equitable remedy, including without limitation a suit for specific performance. 1. NOTICES. All notices, demands, and requests which may or are required to be given by either party to the other shall be in writing and shall be personally served on the designated party; delivered by courier; sent by United States certified or registered mail, postage prepaid, return receipt requested; sent by facsimile transmission; or sent by email transmission addressed to the parties as follows, unless a party hereto otherwise designates a different notice address or recipient in writing: Seller: Christopher W. "Kit" Clark 4414 S. Gekeler Lane Boise, ID 83716 Telephone: 208-342-8901 Facsimile: 208-338-2215 Email: kitclark(crQ,�yankemachine.com Buyer: Ted Baird 33 East Broadway Avenue, Suite 306 Meridian, ID 83642 Telephone: 208-898-5506 Facsimile: N/A Email: tbaird@meridiancity.org Any notice given in the form set forth herein shall be deemed given and received as follows: if personally delivered or sent by courier, when delivered; if sent by mail on the third business day following the mailing thereof; if sent by facsimile transmission, it shall be deemed delivered on the date the recipient provides written acknowledgement (via facsimile or other method) of receipt of the same; and if sent by e-mail transmission, it shall be deemed delivered on the date the recipient provides written acknowledgement (via email or other method) of receipt of the same. 8. GENERAL PROVISIONS. 8.1 Broker Fees. Except as disclosed in writing to the Parties before Closing, the Buyer is not obligated to pay any fee or commission to any broker, finder, or intermediary for or on account of the transaction contemplated by this Agreement. Any fees paid by Seller to Seller's broker shall be paid by separate arrangement between Seller and Seller's broker. 8.2 Governing Law, Jurisdiction, and Venue. This Agreement shall be construed and interpreted in accordance with the laws of the State of Idaho. The parties agree that the courts of Idaho shall have exclusive jurisdiction and agree that Ada County is the proper venue. 8.3 Time of the Essence. Time is of the essence with respect to the obligations to be performed under this Agreement. COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT - 6 8.4 Rights Cumulative. Except as expressly provided in this Agreement, and to the extent permitted by law, any remedies described in this Agreement are cumulative and not alternative to any other remedies available at law or in equity. 8.5 Nonwaiver of Remedies. The failure or neglect of a Party to enforce any remedy available by reason of the failure of the other Party to observe or perform a term or condition set forth in this Agreement shall not be a waiver of such term or condition. A waiver by a Party (i) shall not affect any term or condition other than the one specified in such waiver, and (ii) shall waive a specified term or condition only for the time and in a manner specifically stated in the waiver. 8.6 Successors and Assigns. Subject to any express provisions in this Agreement regarding restrictions on transfers or assignments, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, assigns, heirs, and personal representatives. 8.7 Entire Agreement. All Exhibits to this Agreement are a part of this Agreement. This Agreement, together with the accompanying Exhibits, is the entire agreement among the parties and supersedes all prior memoranda, correspondence, conversations and negotiations. 8.8 Severability. The invalidity of any portion of this Agreement, as determined by a court of competent jurisdiction, shall not affect the validity of any other portion of this Agreement. 8.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instruments. 8.10 Survival of Representations, Warranties, and Covenants. All representations, warranties, and covenants of the Parties set forth in this Agreement shall survive the Closing and shall survive the recording of the Warranty Deed and the Access Easement Agreement. 8.11 Execution of Agreement. Seller acknowledges that this Agreement will be executed by Seller before Buyer executes the Agreement and that the execution of the Agreement by the Buyer is contingent upon ratification of the terms and conditions of this Agreement by the Meridian City Council and the Council's authorization for the Meridian City Mayor to execute this Agreement on behalf of the Buyer. 9. SIGNATURES. Dated: , 2016 BUYER, CITY OF/MERIDIAN COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT - 7 ATTEST: aw City of ;City ClerkE II� DiNI` JAN.Z= sm. SEAL Dated: Dated: Jc� �a / , 2016 SELLER, Susan L. Norby SELLER, Jill M. Stevens COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT — 8 STATE OF IDAHO ) ss County of Ada ) iJ On this<� day of J—VL� , 2016 before me, personally appeared and know or identified to me to be the it Clerk, respectively, o` the ity of Meri iar , who executed the instrument of behalf o saI? i y, and acknowledged to me that such City executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ,,.rr•.. CK •. (SEAL)•• �--'� •N 0• y ;rt rWA ix• ,••:PAHO ~�' .••• ••r•rrr• mv-"t L. 4 -hue Notary Public for Idaho Commission expires: K U' q-` COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT - 9 STATE OF IDAHO } } ss, County of Ada ) On this /y day of ,� , 2016, before me, personally appeared Susan L. Norby, known or identified to me (or proved to me on the oath of }, to be the person whose name is subscribed to the within instrument, and acknowledged to me that she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the daX, 7e%. in this certificate first above written. .••�� tiR cL`'•• Y R Y Notary Pu is for Idaho %V0: Ptl�ti f � �: Commission expires: 7— / - ZOZt) ,'rr* *%~rr►rNrr.0r V '••.STA TE OO ..•'�. STATE OF IDAHO ss. County of Ada } Je.- On this / y'day of , 2016, before me, personally appeared Jill M. Stevens, known or identified to me (or proved to me on the oath of ), to be the person whose name is subscribed to the within instrument, and acknowledged to me that she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. Its '•. � �Q► .Z L,� `+.,r Notary Pu c for Idaho% I o f % *P� pR Y O ' t0 # : Commission expires: 7- v s �• tiG = -01 COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT - 10 EXHIBIT 1.1 —711I I I I I Aprox 5700 sq ft of Real Property to be conveyed I I I Additional Meridian Access Easement I I Relocated Gas Easement g� I� 14 1 r FOLM A11 W ecu~ — N 89-391 N 1Y BELOW GROUND 114.00' II II W I I MERUAN DOMESAC I I f WELL NO. 9 `t I ►7 N 89'33'19" W 153.24° I I I I Z I Z � I [(too lao 1 1a' 30' M pasnkG 30' MERIDIAN r VO&LNOEASEMEN 9 ACCESS PARCEL A I o 43995 SF I 1.010 Acres ! N COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT - 11 M11 V. to '_� ROS 2833 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Exhibit 1.2A — Form of Access Easement. [SAMPLE FORINT] (Space Above For Recorder's Use) ACCESS EASEMENT AGREEMENT This Access Easement Agreement is made effective this [insert date], by and between insert name of antor] ("Grantor"), and [insert name of rantee] ("Grantee"). The Grantor and Grantee may be collectively referred to as the parties. RECITALS: WHEREAS, Grantor is the owner of that certain property near the corner of [insert cross streets] in [insert CL , State], as more fully described in Exhibit A, which exhibit is attached hereto and incorporated herein ("Grantor's Property"); WHEREAS, Grantee is the owner of that certain property on the corner of [insert cross, streets] in [insert City, State] as depicted in Exhibit B, which exhibit is attached hereto and incorporated herein ("Grantee's Property"); WHEREAS, Grantor desires to grant and Grantee desires to receive an easement for ingress and egress across the Grantor's property as depicted on Exhibit C under the terms and conditions outlined hereafter. AGREEMENT: NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Grant. Grantor hereby grants a non-exclusive perpetual access easement over, on, across, and through the Grantor's Property for ingress and egress in the location depicted on Exhibit C ("Easement"). The ingress and egress shall be approximately [insert feet/inches] wide. rprovide description] COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT -12 Z. Purpose of Easement. The Easement shall be used for vehicular ingress and egress to the City of Meridian Well No. 9 for the City of Meridian and its respective representatives, customers, invitees, and agents. No parking of any vehicles shall be permitted on the Easement. 3. Binding on Successors. This Easement and the vacation of any previously existing easements shall be recorded in the official records of [ insert City, State], and shall be binding on the heirs, successors, administrators, executors and assigns of all parties hereto and shall run with the land. 4. Counterparts. This Easement may be executed in counterparts, each part being considered an original document, all parts being but one document. S. Indemnification. To the extent allowed by law, the Grantee agrees to indemnify, defend and hold the Grantor, and its successors, assigns, and agents harmless from any and all claims, liability, losses, costs, charges, or expense that arise from their respective use or use by their respective customers, agents, invitees, or representatives of the Easement. 5. Remedies. In the event of a breach hereunder by any party, the non -breaching party shall have all remedies available at law or in equity, including the availability of injunctive relief. In any suit, action or appeal therefrom to enforce or interpret this Easement, the prevailing party shall be entitled to recover its costs incurred therein, including reasonable attorneys' fees and disbursements. 7. Termination of Previous Easements. The Grantee hereby terminates any and all existing access easements on the Grantor's Property in favor of Grantee or its affiliates or benefiting the Grantee's Property. This Easement is intended to replace any such previously granted access easements and shall not be effective until such easements are vacated in the public records of j insert City, State. S. Easement Obstructions. No fence or other barrier shall be erected or permitted within or across the Easement which would prevent or obstruct the passage of vehicular travel; provided, however, that the foregoing shall not prohibit (i) the temporary erection of barricades which are reasonably necessary for security and/or safety purposes in connection with the construction, reconstruction, repair and maintenance of improvements, including the Easement, on the Grantor's Property, it being agreed by the parties however, that all such work shall be conducted in the most expeditious manner reasonably possible to minimize the interference with the use of the Easement by Grantor, and such work shall be diligently prosecuted to completion, or (ii) the construction of limited curbing or other forms of traffic controls along the outer perimeter of the Easement. 9. Notices. All notices, demands and requests required or desired to be given under this Agreement must be in writing and shall be deemed to have been given as of the date such writing is (i) delivered to the party intended, (ii) delivered to the then current address of the party intended, or (iii) rejected at the then current address of the party intended, provided such writing was sent prepaid. The initial address of the signatories hereto is: Grantee: COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT -13 Grantor: Upon at least ten (10) days' prior written notice, each parry shall have the right to change its address to any other address within the United States of America. 10. Dedications. Grantor excepts and reserves unto itself, its successors and assigns, the right to dedicate the Easement as a public street or drive at any time at its sole election. Upon any such dedication all private rights of Grantee therein shall automatically terminate and expire. Until and unless an express dedication is made of the Easement, no use hereunder shall be deemed to constitute the Easement as a public way or a quasi -public way, but to the contrary the Easement shall constitute and remain a private way and drive. No dedication shall, however, be made of the Easement unless: 11. Such Easement is accepted by the public entity for maintenance as a public street or drive; and 12. The dedication does not preclude or prevent the continued use by Grantee of the entrance to and exit from the Easement then being used incident to the Grantee's Property. IN WITNESS WHEREOF, the undersigned have caused this Easement to be executed the day and year first written above. [NOTARIZED SIGNATURES OF GRANTOR AND GRANTEE] COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT -14 Exhibit 1.2B Buyer's Property (Legal Description of the Buyer's Property to be inserted pursuant to Article 1.2) of this Agreement) COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT -15 Exhibit 3.1.1(b) - Legal Description of Real Property An approximately 5,700 square foot portion of the real property legally described in the land records of Ada County Idaho as Parcel No. S 1212438770 @ W SIDE SW4SE4 SECTION 12 3N 1 W, PARCEL B, RIS 7414 #43 8401-B (Legal Description of the Real Property to be obtained pursuant to Article 3.1.1(b) of this Agreement). COMMERCIAL REAL ESTATE PURCHASE AND SALE AGREEMENT - 18 CHRISTOPHER W. CLARK, ESQ. P.O. Box 5405 (83705) 4414 S. Gekeler Lane Boise, ID 83716 208/342-8901 2081338-2215 (fax) kitelarkAyankemachine.corn July 15, 2016 Ted Baird, Esq. Deputy City Attorney 33 East Broadway Ave. Suite 306 Meridian, ID 83642. Re: TitleOne File No.: 16272053; Norby/Stevens to City of Meridian A portion of Ada County Parcel No. 51212438770 Dear Ted: Enclosed herewith are two original signature copies of the proposed Commercial Real Estate Purchase and Sale Agreement ("Agreement") for the above referenced property. Both copies have been executed by the Sellers. Please have both copies of the Agreement signed by the City of Meridian, retain one copy and return one original to me for our files. Please note that within ten business days of the City's execution of the Agreement, the earnest money deposit of $1,000 should be paid in trust to TitleOne Corporation. If you have any questions or concerns please contact me. Best regards, CHRISTOPHER W. "KIT" CLARK General Counsel CWC/lo Enc.