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Commercial Real Estate Exchange Agreement with Meridian Dairy and Stock Shows for Storey Park PropertyCOMMERCIAL REAL ESTATE EXCHANGE AGREEMENT This Agreement is made between Meridian Dairy & Stock Shows, Inc., an Idaho Corporation (hereinafter referred to as "MDSS"), and the City of Meridian City, an Idaho Municipal Corporation (hereinafter referred to as "CITY"), collectively referred to herein as "the Parties." This Agreement shall be made effective as of the date when fully executed by both Parties ("Effective Date"). WHEREAS, MDSS owns or controls (or will own or control at the time of Closing) certain real property located in Ada County, Idaho, legally described herein and depicted as "Parcel A" on Exhibit "A"; and, WHEREAS, CITY owns certain real property located in Ada County, Idaho, legally described herein and depicted as "Parcel B" on Exhibit `B"; and, WHEREAS, CITY desires to own Parcel A to add land and vehicular access to its adjacent public park, and MDSS desires to own Parcel B to add land to its adjacent Speedway property; and, WHEREAS, the Parties desire to enter into this real property exchange agreement whereby MDSS will convey Parcel A to CITY in exchange for CITY conveying Parcel B to MDSS subject to certain terms and conditions contained herein; and, WHEREAS, because Parcel A has a greater appraised value than Parcel B, CITY will be making a cash payment at closing to compensate MDSS for the portion of Parcel A that exceeds the value of Parcel B. NOW, THEREFORE, in return for good and valuable consideration, including the agreement set forth herein and the Parties' proceeding to the closing of the property exchange contemplated hereby, the receipt and sufficiency of such consideration being hereby acknowledged, the Parties do hereby enter into this Agreement and the terms and conditions set forth below. 1. EXCHANGE OF PROPERTY. 1.1 Identification of Exchange Parcels. 1.1.1 MDSS TRADE PARCEL. The parcel that MDSS intends to trade to City under the terms of this agreement is legally described as Lot 5, Block 2 of the Honor Park Subdivision No. 2, according to the plat thereof, filed in Book 68 of Plats at Page 6959, records of Ada County, Idaho. The MDSS Trade Parcel is depicted on Exhibit "A" and is referred to herein as "Parcel A". 1. 1.2 CITY TRADE PARCEL. The parcel that CITY intends to trade to MDSS under the terms of this Agreement is to be legally described as Lot 3, Block 1 of the Storey Park Subdivision according to the plat thereof to be filed in the book of Plats, Ada County, Idaho upon the recording of the pending final plat. The 89,332 square foot parcel is depicted on Exhibit "B" and is referred to herein as "Parcel B." COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 1 - 1.1.3 Parcels "A" and "B" may be referred to collectively herein as "the Properties." 1.2 Additional Compensation. To offset the difference in value between Parcel A and Parcel B, CITY shall pay monetary compensation to MDSS in the amount of Fifty Thousand Dollars ($50,000.00) (the "Additional Compensation"). The Additional Compensation shall be placed in Escrow by City and paid to MDSS in cash at Closing. 1.3 Conveyance of Title. 1.3.1 Title to the Properties shall be conveyed by Warranty Deed in the form attached as Exhibit "C". Title to the Properties 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 on or before Closing. 1.4 Title Insurance. 1.4.1 Commitment. Upon the acceptance of this Agreement by the CITY, the MDSS shall order a Commitment for Title Insurance ("Commitment") covering both Parcel A and Parcel B issued by Pioneer Title Company of Ada County ("Title Company.") 1.4.2 Objections to Title. Either Party shall have five (5) business days after receipt of the Commitment to object in writing to the condition of the title as set forth in the Commitment, unless said time period is extended pursuant to this Agreement. In the event that a Party makes written objection to the title, the other Party shall have a reasonable time to cure any defects of title. In the event the other Party cannot cure said defects, the objecting Party may elect, as its sole remedy, to either (i) terminate this Agreement, or (ii) proceed to closing, taking title subject to such defects. If the Parties do not so object, the Parties shall be deemed to have accepted the condition of the title. 1.4.3 Policies. Each Party may pay for standard coverage owner's title insurance policy on the respective properties which it receives after the exchange under the terms of this Agreement. 1.5 Possession. The Parties shall be entitled to possession of their respective properties upon closing. 2. REPRESENTATIONS, WARRANTIES. Each Party represents and warrants to the other regarding their respective properties: 2.1 Property Ownership. At the time of Closing, the Parties shall have good, marketable title to their respective parcels. At the time the deeds are placed into escrow, no other Party shall have any right, title, or interest in the Properties. 2.2 Compliance with Laws. The Parties have received no notice from any governmental agency that the properties are in violation of any statute, law, ordinance, rule, regulation, or deed restriction affecting the Properties. COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 2 - 2.3 No Litigation. There is no equitable, legal, or administrative suit, action, arbitration, or other proceedings pending or threatened against or affecting the Properties. 2.4 Broker Fees. Neither Party is obligated to pay any fee or commission to any broker, finder, or intermediary for or on account of the transaction contemplated by this Agreement. 2.5 Information to be Provided. Within ten (10) business days after the Effective Date of this Agreement each Party shall be obligated to deliver to the other Party the following: 2.5.1 Contracts. All contracts of any kind or nature that will survive the Closing and that relate to the Properties. 2.5.2 Leases. A copy of all leases relating to the Properties, together with any amendments to them. 2.6 Access to Property. After the Effective Date of this Agreement, the Parties and their representatives shall have reasonable access to the respective Properties that they are to receive under 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 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 42 U.S.C. § 6903 (or the corresponding provision of any future law) and "petroleum" as defined in 42 U.S.C. § 6991 (or the corresponding provision of any future law). The term "superfund" shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601, et seq. ("CERCLA") (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 42 U.S.C. § 6991 (or the corresponding provision of any future law). 3.2 Representations and Warranties Regarding Hazardous Substances. MDSS represents with regard to Parcel A and City represents with regard to Parcel B, that: 3.2.1 The Parcel is not contaminated with any hazardous substance. 3.2.2 The Parcel is not subject to any pending, threatened, or likely federal, state, or local "superfund" lien, proceedings, claim, liability, or action for the cleanup, removal, or remediation of any hazardous substance from the Parcel. 3.2.3 There is no asbestos on the Parcel. 3.2.4 There is no underground storage tank on the Parcel. 3.3 Phase I Environmental Audit. Each Party intends to obtain a "Phase I" environmental audit and liability assessment on the property that they are to receive under this COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 3 - agreement. The Phase I audit shall be conducted in substantial compliance with the American Society for Testing and Materials (ASTM) Standard E 1527-05 or its replacement. The Parties have agreed that both Phase I reports shall be prepared by Gem Environmental or other such entity as mutually agreed by the Parties. The Phase I report on each property shall be enforceable by both Parties. The cost of the Phase I reports shall be shared equally between the Parties and shall be paid at closing. In the event that this Agreement is terminated, the obligation of the Parties to pay the vendor for producing the Phase I reports shall survive the termination of this Agreement. 3.4 Phase II Environmental Audit. If either Party is not satisfied with the condition of the property that the Party is to receive under this Agreement as reported in the Phase I environmental audit, then that Party, in addition to any other remedy and without any waiver of rights, shall have the right to either (i) terminate the Party's obligations to close the transactions contemplated by this Agreement, or (ii) require that additional audits ("Phase II") be conducted on the that Party's Parcel, at the requesting Party's sole cost, and extend the date for Closing for a period of time reasonably necessary to complete and analyze the Phase II audit. 3.5 Cooperation with Environmental Audit. Each Party shall cooperate fully with the environmental audits referred to in this Agreement. 4. CONDITIONS PRECEDENT TO CLOSING. 4.1 Conditions Precedent to Obligations of MDSS. The obligations of MDSS under this Agreement are subject to the satisfaction of the following condition: 4.1.1. Title to Parcel A. MDSS shall obtain fee simple to Parcel A as a condition precedent to Closing. 4.1.2. Release of Parcel B from Shared Parking and Cross Access Agreement. Parcel B shall be released from the terms of the Shared Parking and Cross Access Agreement which is described in Note 6 in the attached Exhibit B. 4.2 Conditions Precedent to Obligations of CITY. The obligations of CITY under this Agreement are subject to the satisfaction of the following conditions: 4.2.1 LWCF Approval. The National Park Service "Amendment to Project Agreement" dated January 27, 2014 approving the City's Land and Water Conservation Fund Conversion application shall remain in full force and effect. 4.2.2 Honor Park Subdivision CC&R Amendment. City shall secure an amendment to the Declaration of Covenants, Conditions and Restrictions for Honor Park Subdivision to either allow the City uses of Parcel A contemplated under this agreement, or exempt Parcel A from the CC&R requirements entirely. 4.2.3 Storey Park Subdivision Approval. City shall receive final plat approval of the Storey Park Subdivision, creating a Parcel B as a legal lot. 4.2.4 City Council Approval of Trade. City shall comply with the notice and hearing requirements of Idaho Code Title 50, Chapter 14: COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 4 - 4.2.3.1 City Council shall hold a public hearing regarding the intent to exchange real property. 4.2.3.2 After notice and hearing, the City Council must have approved this Agreement and authorized the Mayor to sign all necessary papers to complete the exchange transaction contemplated by this Agreement. 4.2.5 Removal of Encroachments. MDSS shall effect the removal of any and all encroachments caused by its tenant that exceed the boundaries of Parcel B and encroach on City's lot 2, block 1 of the Storey Park Subdivision. 4.3 Conditions Precedent to Obligations of Each Party. The obligations of each Party under this Agreement are subject to the satisfaction of the following conditions: 4.3.1 Representations and Warranties True. The representations and warranties of each Party 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. 4.3.2 Covenants Performed. Each Party has performed all obligations, covenants and agreements to be performed before Closing as set forth in this Agreement. 4.3.3 Title Policy. The Title Company is prepared to issue policies in accordance with the provisions of Section 1.4. 4.3.4 Execution and Delivery of Documents. The Parties (and others where required) shall have executed and delivered to the Closing Agent the following: (a) The Warranty Deed(s); and (b) Any other documents necessary to effect the transfers of title contemplated by this Agreement. 4.3.5 Environmental Audit. The Parties obtain and approve the environmental audit(s) referenced in Section 3. 4.3.6 Access Easement. The Parties shall have reached agreement on the terms and conditions of an easement in favor of MDSS providing connectivity of Parcel B to Watertower Lane across the property of CITY. The Parties shall include an escrow instruction to record the Access Easement after Closing. 5. CLOSING. 5.1 Definition. "Closing" shall occur on the date on which the deeds to all properties are recorded in satisfaction of the requirements of this Agreement. 5.2 Closing Agent. The Closing Agent for this Agreement shall be Pioneer Title Company of Ada County ("Closing Agent"). Each Party shall each pay one-half of the Closing Agent's Closing Fees at Closing. COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 5 - 5.3 Time, Date and Place of Closing. Closing shall be at the offices of the Closing Agent on or before the 31 st day of March, 2014, or at such other time, date, and place as may be mutually agreed by the Parties. 5.4 Closing Agent Instructions. The Parties shall execute and deliver to the Closing Agent instructions on the form generally provided by the Closing Agent with such modifications as are reasonably made by the Parties that are consistent with the terms and conditions of this Agreement for the purpose of effecting the transaction provided herein. 6. GENERAL PROVISIONS. 6.1 Incorporation of Recitals. The recitals set forth in this Agreement are a material and integral part of this Agreement and are incorporated herein by reference. 6.2 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. 6.3 Time of the Essence. Time is of the essence with respect to the obligations to be performed under this Agreement. 6.4 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. 6.5 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. 6.6 Entire Agreement. All Schedules and Exhibits to this Agreement are a part of this Agreement. This Agreement, together with the accompanying Schedules and Exhibits, is the entire agreement among the Parties and supersedes all prior memoranda, correspondence, conversations and negotiations. 6.7 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. 6.8 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. 6.9 Attorneys' Fees. If either party shall default in the full and timely performance of this Agreement and said default is cured with the assistance of an attorney for the other party and before the commencement of a suit thereon, as a part of curing said default, the reasonable attorneys' fees incurred by the other party shall be reimbursed to the other party upon demand. COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 6 - In the event of any litigation between the parties concerning this Agreement, the unsuccessful party in such litigation shall fully reimburse the prevailing party for all reasonable costs and expenses, including reasonable attorney's fees, incurred in such litigation. 6.10 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(s). 7. EXECUTION OF AGREEMENT. MDSS acknowledges that this agreement will be executed by MDSS before CITY executes the agreement and that the execution of the agreement by the CITY 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 CITY. 8. SIGNATURES. Dated this ZO day of �� , 2014 MERIDIAN DAIRY & STOCK SHOWS, INC. Hillebrand J. Bruijn, Presi t MERIDIAN DAIRY & STOCK SHOWS, INC. l Gerald W. Mattison, Secretary Dated this L' day of N , 2014 THE CITY OF Tammy deWq,&rd, Mayor ATTEST: Holman, City Clerk COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - STATE OF IDAHO ) ) ss. County of Ada ) On this 20 day of (U , 2014, before me, , a notary public in and for said state, personally app red Hillebrand J. Bruijn and Gerald W. Mattison known to me to be the President and Secretary of the Meridian Dairy and Stock Shows, Inc, the persons who executed the within instrument on behalf of said corporation, and acknowledged to me that Meridian Dairy and Stock Shows, Inc 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. \ L 8E i Op Tp RI- (SEAL) AU 8 L I G OF ItR'p STATE OF IDAHO ) ) ss. County of Ada ) NOTARY PUBLIC FOR IDAHO Residing at: R,p iSL Idaho My Commission expires: , Z 1 ZOZO On this _4_ day of �-A Q v7',V , 2014, before me, a notary public in and for said state, personally appeared Tammy de Weerd and Jaycee L. Holman known to me to be the Mayor and City Clerk of Meridian City, Idaho, who executed the within instrument on behalf of said municipal corporation, and acknowledged to me that Meridian City executed the same. IN WITNESS WHEREOF, 1 have hereunto set my hand and affixed my official seal the day and year first above written. •••••••••• •gyp, JON,•• 'ojg�p't AR 1' cS' • (SEAL) 1 Q• " PLTOA Not' ry Pu lic for Id o Residing at Meridian, Idaho My commission expires: -J ar L' _Q C) COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 8 - EXHIBIT A COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT -9 4 �f LL \ ck w as k `k no 2 X ® » ui !!|! \ ` N- Q _ |; /° Reim.- - o � e } \ § 2 WS 2 �§ | mm O 2 2 / 8� < % S \ . . | _ a X73 /\}o ' ° - Ul a2 / � V4 © � § Lu e cm — \ # O he < 2 w \ o- 0 (\ ? } < ■ | 0~ §§) _ ®0 0 o \ \ | (/%/ 11`¢ lla- | |j §((\ } le � � _ E;ez o 9XI COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT -9 EXHIBIT B i I RECORDING REQUESTED BYAND WHEN RECORDED RETURN TO: EXHIBIT C SAMPLE DEED DO NOT RECORD WARRANTY DEED For the valuable consideration, the receipt ("Grantor"), ("Grantee"), forever, the following described real property: (Space Above For Recorder's Use) of which is hereby acknowledged, conveys, grants and warrants to whose address is and its successors and assigns See Exhibit "A" attached hereto and incorporated herein. SUBJECT TO any and all existing easements, rights-of-way, reservations, restrictions and encumbrances of record, to any existing tenancies, to all zoning laws and ordinances, and to any state of facts an accurate survey or inspection of the premises would show. This conveyance shall include any and all estate, right, title, interest, appurtenances, tenements, hereditaments, reversions, remainders, easements, rents, issues, profits, rights-of-way and water rights in anywise appertaining to the property herein described as well in law as in equity. The Grantor covenants to the Grantee that Grantor is the owner in fee simple of said premises; that the premises are free from all encumbrances, excepting those as may be herein set forth, and excepting those of record, and that Grantor will warrant and defend the same from all lawful claims. COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 11 IN WITNESS WHEREOF, the Grantor has executed this instrument on this day of .2009. STATE OF IDAHO ) ss. County of ) On this day of , 20_, before me , personally appeared , 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 [he/she/they] 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. NOTARY PUBLIC FOR IDAHO Residing at My Commission Expires COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 12