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HomeMy WebLinkAboutReal Estate Purchase and Sale Agreement with Tremont Homeowners Association for Lift Station Acquisition Tremont Place SubdivisionREAL ESTATE PURCHASE AND SALE AGREEMENT This Agreement is made effective as of the _ day of , 2009, between The City of Meridian ("Buyer"), and the Tremont Place Homeowners' Association, Inc. ("Seller"). The parties agree as follows: 1. Purchase and Sale of Property. 1.1 Property. Subject to the terms and conditions of this Agreement, the Seller shall sell to the Buyer and the Buyer shall receive from the Seller the following real property and other assets (the "Property"): 1.1.1 Real Property. The real property described as Lot 03, Block 02 of the Tremont Place Subdivision, together with all buildings, fixtures (including but not limited to the sanitary sewer lift station and associated improvements) and other improvements located on such real property (the "Real Property"). 1.1.2 Tangible Personal Property. All tangible personal property located on or used exclusively in connection with the operation or maintenance of the Real Property ("Tangible Personal Property"), including, without limitation, all trade fixtures, equipment, supplies and tools. 1.2 Purchase Consideration. Seller agrees to convey the Real Property to Buyer without the exchange of monetary consideration. The consideration for this transaction consists of Buyer's agreement to assume responsibility for the operation and maintenance of the sanitary sewer lift station located on the Real Property in exchange for Seller's conveyance of title to the Real Property. 1.3 Conveyance of Title. Title to the Real Property shall be conveyed by a Warranty Deed. 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 Closing. ~; PURCHASE AND SALE AGREEMENT - 1 1.4 Title Insurance. 1.4.1 Commitment. Upon the acceptance of this Agreement by the Seller, the Buyer, at Buyer's own expense, may order a Commitment for Title Insurance ("Commitment") issued by Lawyers Title of Treasure Valley ("Title Company"), covering the Real Property. 1.4.2 Unapproved Exceptions. If any exceptions shown on the Commitment are not approved in writing by the Buyer prior to Closing and cannot be removed by the Seller by Closing, then the Buyer shall have the right to terminate this Agreement, in which event all earnest money deposited shall be refunded to the Buyer and each party shall be fully released and discharged from any further obligations under this Agreement. 1.4.3 Policy. At Closing or soon thereafter, Buyer may purchase an ALTA Owner's Policy title insurance policy (current revision) ("Policy") satisfying the following specifications: The Policy shall insure the Buyer as the owner of the Real Property, subject only to the following special exceptions: (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 Closing. 2. Representations, 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 documents or instruments governing the Seller. Seller agrees to provide a Resolution of its Board of Directors authorizing the conveyance contemplated by this Agreement. 2.2 Property Ownership. The Seller owns and possesses all right, title, and interest in and to the Property free and clear of all covenants, conditions, easements, liens, and encumbrances. 2.3 Material Misstatement or Omissions. No representation or warranty made by the Seller in this Agreement or in any document or agreement furnished in connection with this Agreement contains or will contain any untrue statement of material fact, or omits or will omit to state a material fact necessary to make the statements not misleading. 2.4 No Default. The Seller is not in default under the terms of any contract, agreement, lease or license, and no condition or event has occurred which, after notice, the passage of time, or otherwise, would constitute a default under or breach of any such terms. The Seller is not aware of any condition that will result in a default under any such terms. 2.5 Compliance with Laws. The Seller has complied in all material respects with all laws, regulations, and orders affecting the Property and the operation of the sanitary sewer lift station and is not in default under or in violation of any provision of any federal, state, local or provincial order, rule, regulation or law. PURCHASE AND SALE AGREEMENT - 2 2.6 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 Property. 2.7 Broker Fees. Except as disclosed in writing to the Buyer prior to Closing, the Seller 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. 3. Hazardous Substances. 3.1 Definitions. The terms "hazardous substance," "release," and "removal" shall have the definition and meaning as set forth in Title 42 U.S.C. 9601 (or the corresponding provision of any future law); provided, however that the term "hazardous substance" shall include "hazardous waste" as defined in Title 42 U.S.C. 6903 (or the corresponding provision of any future law) and "petroleum" as defined in Title 42 U.S.C. 6991 (or the corresponding provision of any future law). The term "superfixnd" shall mean the Comprehensive Environmental Response, Compensation and Liability Act, Title 42 U.S.C. 9601, et seq. (or the corresponding provision of any future law) and any similar statute, ordinance, rule or regulation of any state or local legislature, agency or body. The term "underground storage tank" shall have the definition and meaning as set forth in Title 42 U.S.C. 6991 (or the corresponding provision of any future law). 3.2 Representations and Warranties. The Seller represents and warrants to, and covenants with, the Buyer that: 3.2.1 the Real Property is not contaminated with any hazardous substance, 3.2.2 the Seller has not caused and will not cause the release of any hazardous substances on the Real Property, 3.2.3 the Seller has conducted a diligent investigation and inquiry, and to the best of the Seller's knowledge, there has never occurred a release of hazardous substances on the Real Property, 3.2.4 the Real Property is not subject to any pending, threatened, or likely federal, state, or local "superfiand" lien, proceedings, claim, liability, or action for the cleanup, removal, or remediation of any hazardous substance from the Real Property, 3.2.5 no other real property owned or controlled by the Seller or in which the Seller has any legal, equitable, or other interest is subject to any pending, threatened, or likely federal, state, or local "superfiind" lien, proceedings, claim, liability, or action for the cleanup, removal, or remediation of any hazardous substance from such property, 3.2.6 there is no asbestos on the Real Property, PURCHASE AND SALE AGREEMENT - 3 3.2.7 there is no underground storage tank on the Real Property, 3.2.8 by acquiring the Real Property, the Buyer will not incur or be subject to any "superfund" liability for the cleanup, removal, or remediation of any hazardous substance from the Real Property, 3.2.9 by acquiring the Real Property, the Buyer will not incur or be subject to any liability, cost, or expense for the removal of any asbestos or underground storage tank from the Real Property, and 3.2.10 the Real Property and the us compliance with all applicable environmental laws, limitation, the Comprehensive Environmental Resf ;s conducted on the Real Property are in codes, and regulations, including, without Anse, Compensation, and Liability Act of 1980, as amended. 4. Conditions Precedent to Closing. 4.1 Representations 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. 4.2 Covenants Performed. The Seller has performed all obligations, covenants and agreements to be performed prior to Closing as set forth in this Agreement. 4.3 Title Policy. The Title Company is prepared to issue a policy in accordance with the provisions of Section 1.7. 5. General Provisions. 5.1 Indemnifications and Offsets. Seller agrees to defend, indemnify, and hold Buyer harmless from any and all damages, liabilities, or expense sustained directly or indirectly by Buyer (including, without limitation, attorney fees and costs) resulting from the breach of, or misstatement in, any representation, warranty, or covenant of the Seller, including without limitation, the representations, warranties and covenants set forth in Section 3 relating to hazardous substances. The Seller's obligation to indemnify, defend, and hold the Buyer harmless is not limited in any manner by the cash or other consideration received by the Seller under this Agreement. 5.2 Notices. All notices, claims, requests and other communications ("Notices") under this Agreement (i) shall be in writing, and (ii) shall be addressed or delivered to the relevant address set forth in Section 6 below or at such other address as shall be given in writing by a party to the other. Notices complying with the provisions of this Section shall be deemed to have been delivered (i) upon the date of delivery if delivered in person, or (ii) on the date of the postmark on the return receipt if deposited in the United States Mail, with postage prepaid for certified or registered mail, return receipt requested. PURCHASE AND SALE AGREEMENT - 4 5.3 Attorney Fees and Costs. The Parties agree that if a party is in default under this Agreement, then such party shall pay to the other party (a) reasonable attorney fees and other costs and expenses incurred by the other party after default and referral to an attorney, (b) reasonable attorney fees and other costs and expenses incurred by the other party in any settlement negotiations, and (c) reasonable attorney fees and other costs and expenses incurred by the other party in preparing for and prosecuting any suit or action ("Collection Costs"). Collection Costs shall be immediately due and payable. 5.4 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. 5.5 Time of the Essence. Time is of the essence with respect to the obligations to be performed under this Agreement. 5.6 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. 5.7 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 constitute 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. 5.8 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. 5.9 Entire Agreement. All Schedules and Exhibits to this Agreement constitute a part of this Agreement. This Agreement, together with the accompanying Schedules and Exhibits, constitutes the entire agreement among the parties and supersedes all prior memoranda, correspondence, conversations and negotiations. 5.10 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. 5.11 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. PURCHASE AND SALE AGREEMENT - 5 5.12 Survival of Representations, Warranties, and Covenants. All representations, warranties, and covenants of the Buyer and Seller set forth in this Agreement shall survive the Closing and shall survive the recording of the Warranty Deed. 6. Signatures. Dated: , 20 BUYER, CITY OF MERIDIAN Mayor Tammy de Weerd 33 East Broadway, Meridian ID 83642 ATTEST: Jaycee L. Holman, City Clerk Dated: , 20 SELLER, TREMONT PLACE HOMEOWNERS' ASSOCIATION, INC .. Diana Burton, President Address: 857 West Broadway Avenue Meridian, Idaho 83642 PURCHASE AND SALE AGREEMENT - 6 STATE OF IDAHO ) ss County of Ada ) On this day of 2009, before me, a Notary Public, personally appeared Tammy de Weerd and Jaycee L. Holman, know or identified to me to be the Mayor and Clerk, respectively, of the City of Meridian, who executed the instrument of behalf of said City, 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. (SEAL) Notary Public for Idaho Residing at: Commission expires: STATE OF IDAHO ) ss County of Ada ) On this ~~~ day of ~~\~ 2009, before me, a Notary Public, personally appeared Diana Burton, know or identified to me to be the President of the Tremont Place Homeowners' Association, Inc who executed the instrument of behalf of said Corporation, and acknowledged to me that such Corporation 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. ~py,~Rt~F;9~ ~• v; ~ ~ O t. ~ ' ~•~° ° V v • A Notary Public for aho Residing at: M~~p~~,~, \`~~~p Commission expires: ~ 0~-`a,01p PURCHASE AND SALE AGREEMENT - 7