PZ - Purchase Agreement3148-19
AGREEMENT FOR RELEASE AND PURCHASE
OF INTEREST AND IMPRO^MENTS
This AGREENT FOR RELEASE Ai.
IMPROVEMENTS ("Agreement") is entered into this ٥
Date"), between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, whose
address is 140ه Douglas Street, Omaha, Nebraska 68179 ("Seller"), and EAST BROADWAY
-ST^NT COFANY, LLC, an Idaho limited liability company, whose address is
333 s. Kestrel Place, Eagle, Idaho 83616, c/o Givens Pursley LLP, Attn: Ed Miller, Esq. ("Buyer"),
wmssETH:
،CHASE OF INTEREST Ai
؛day of October, 2٥19 ("Execution
IT IS AGREED by and between the parties as follows:
Section 1. Release and Purchase of Right of Wav Interest.
Pursuant to that certain Act of Congress dated March 3, 1875 ("1875 Act"),
the United States of America granted to Seller an easement interest in and to public lands of
the United States ("1875 Act Interest"), including but not limited to that ceitain real property
located in the City of Meridian, Ada County, State of Idaho, commonly referred to as "1875 Act
of Congress Station Grounds", as generally shown in red crosshatching on the print dated
May 14, 2018, attached hereto as Exhibit A and made a part hereof, and legally described in
Exhibit Α-1, attached hereto and made a part hereof (collectively, "Station Grounds Property").
(a)
Buyer wishes to use the Station Grounds Property for development purposes.
Seller and Buyer acknowledge that (1) the fee simple real estate interest ("Fee Interest") in the
Station Grounds Property is held in private ownership by third parties ("Third Party Owners"),
(11) as of the Execution Date of this Agreement, Buyer is acquiring fee interest to the Station
Grounds Property from the Third Party Owners ("Third Party Acquisitions"), and (ill) the Third
Party Acquisitions will close concurrently with Closing (as defined in Section 8), at which time
Buyer will thereafter own Fee Interest in and to the Station Grounds Property.
(b)
Buyer has requested that Seller (1) release Its 1875 Act Interest but only to the
extent the 1875 Act Interest affects the Station Grounds Property, and (11) sell to Buyer all
buildings and any related appurtenances located on the Station Grounds Property (collectively, the
"Improvements"). The Station Grounds Property and the Improvements may hereinafter be
collectively referred to as the "Property".
)ء(
Seller has agreed to (1) release its 1875 Act Interest but only to the extent the
1875 Act Interest affects the Station Grounds Property, and (11) sell to Buyer the Improvements
located on the Station Grounds Property.
(d)
Buyer acknowledges that Seller conducts railroad operations on real property
adjacent to the Station Grounds Property ("Seller's Adjacent Property"). Seller requires the
placement of certain Restrictive Covenants (as defined in Section 4(1)) on the Station Grounds
Property at Closing for the benefit of Seller and Seller's Adjacent Property. The Resttictive
)ج(
3148-19
™on pacific railroad company
Атта: Mike Gibilisco, Manager II - Real Estate Field Operations
1400 Douglas Street, Mail Stop 1690
Omaha, Nebraska 68179
Telephone: (402) 544-7510
Email: magiblh@up.com
Seller:
™on pacific railroad CORff any
ATTN: Madeline Roebke, Senior General Attorney
1400 Douglas Street, Mail Stop 1580
Omaha, Nebraska 68179
Telephone: (402) 544-1121
Email: meroebke@up.com
With copy to:
EAST BROADWAY INVESTMENT COMRANY, LLC
ATTO: William Ditz
333 Kestrel Place
Eagle, Idaho 83616
Telephone: (208) 513-0355
Telephone #2: (719) 243-3876
Email: bill.ditz@,mountainwestgroup.net
Buyer:
GI^NS PURSLEY LLP
ATTO: L. Edward Miller, Esq.
601 w. Bannock Street
Boise, Idaho 83702
Telephone: (208) 388-1200
Email: EdMiller@,givenspurslev.com
With copy to:
FIDELITY NATIONAL TITLE COFANY
ATTO: Lynn Darling, Title Officer
485 E. Riverside Drive
Eagle, Idaho 83616
Telephone: (208) 949-0645
Email: lvnn.darling@fnf.com
Title Company:
FIDELITY NATIONAL TITLE COMPANY
ATTO: Brooke Brennan, Escrow Officer
485 E. Riverside Drive
Eagle, Idaho 83616
Telephone: (208) 949-0645
Email: brooke.brennan@fnf.coin
With copy to;
Express delivery notices shall be deemed to be given upon receipt. Postal notices shall be
deemed to be given three (3) days after deposit with the United States Postal Service. Copies of
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3148-19
all notices to Seller or Buyer shall be given to Title Company, and copies of all notices to Title
Company shall be given to the other party to this Agreement.
Section 13. Assignment.
Buyer shall not transfer or assign this Agreement or any interest therein, without
the consent in writing of Seller, and it is agreed that any such transfer or assignment, whether
voluntaty, by operation of law or otherwise, without such consent in writing, shall be absolutely
void and shall, at the option of Seller, terminate this Agreement.
NoBvithstanding the foregoing. Buyer may assign this Agreement, without
Seller's prior written consent, to a partnership, limited liability company or corporation in which
Buyer owns at least a ten percent (10%) general partnership interest, ten percent (10%) of the
membership interest, or ten percent (10٥/ο) of the voting stock, respectively; provided that such
partnership, limited liability company or corporation assumes the provisions of this Agreement,
in writing for the benefit of Seller, in form and substance satisfactory to Seller, and that at least
ten (10) days prior to the Closing Date, Buyer shall give Seller written notice of the assignment
together with a folly executed original of the assignment and assumption agreement.
No assignment by Buyer will relieve Buyer of its obligations under this Agreement.
Seller aclcnowledges that following Closing, Buyer may assign all of its right, title
and Interest in and to the Property, including Buyer's performance and observation of
the provisions of this Agreement and all covenants, stipulations and conditions outlined herein,
to a third party under the control of Galena Opportunity, Inc., an Idaho corporation ("Galena"),
pursuant to a separate Membership Interest Purchase Agreement dated August 12, 2019 between
Galena, Mountain West Group, LLC, an Idaho limited liability company ("MWG"), the sole
member of Buyer, and William Ditz, the manager of MWG. Buyer or any of its assignees,
including, but not limited to Galena, MWG, or any other assignee of Buyer, agrees to be bound
by and to perform and observe all of the covenants, stipulations and conditions outlined in this
Agreement to be performed and observed by Buyer, and assumes all liabilities mentioned in this
Agreement to be assumed by Buyer.
(a)
(b)
)ء(
Section 14. Condemnation.
If, prior to Closing, a governmental agency commences or imminently threatens
in writing to commence any eminent domain proceedings to take any material portion of the
Station Grounds Property, Buyer and Seller shall each have the unilateral right, exercisable by
giving notice of such decision to the other party within thirty (3٥) days after receiving written
notice of such actual or threatened condemnation proceedings, to terminate this Agreement. In
the event of such termination, the Escrow Fund shall be reforned to Buyer, and this Agreement
will be without any forther force and effect and without further obligation of either party to the
other. If neither party elects to terminate pursuant to this Section 14, the Purchase Price will be
determined as though such condemnation had not occurred, and the net proceeds of
condemnation awards paid or payable to Seller by reason of such condemnation of the Station
Grounds Property shall be paid or assigned to Buyer at Closing.
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Section 15. Waiver of Breach.
A waiver by either parly of a breach by the other party of any covenant or
condition of this Agreement shall not impair the right of the party not In default to avail itself of
any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict
performance of any agreement, covenant or condition of this Agreement, or to exercise any right
under this Agreement, shall not be construed as a waiver or relinquishment of any such
agreement, covenant, condition or right.
Section 16. Time of the Essence.
Time is of the essence of this Agreement.
SectionJ^. Law Governing.
This Agreement shall be governed in all respects by the laws of the State of Idaho.
Section 18. Merger.
The terms, provisions, covenants and conditions contained in this Agreement shall
merge into the deed to be delivered by Seller to Buyer at Closing and shall not survive the
Closing, except for the provisions of Section 4(c), 6(b), 10, 19 and 21.
Section 19. No Brokers.
The negotiations relative to this Agreement and the transactions contemplated
hereby have been carried on by the parties without the intervention of any person which would
give rise to any valid claim against either of the parties for brokerage commissions or other like
payment. Each party shall indemnify and hold harmless the other party against and from any and
all claims for brokerage commission or other like payment arising out of the transaction
contemplated by this Agreement and occasioned by the actions of such indemnifying party.
Section 20. Successors and Assigns.
Subject to the provisions of Section 13, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns.
Section 21. Special Provision.
Seller, Federal ID No. 94-6001323, is not a foreign corporation and withholding
of Federal Income Tax from the amount realized will not be made by Buyer. The form of
Certification of Non-Foreign Status prepared in conformance with IRS regulations under
Section 1445 of the Internal Revenue Code is attached hereto as Exhibit E and made a part
hereof
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Section 22. Tax-Deferred Exchange.
Seller may anange for the exchange upon the Closing of one or more parcels of
property for the Property in order to effect a tax-deferred exchange within the meaning of
Section 1031 of the Internal Revenue Code of 1986, as amended, and comparable provisions of
state statutes. Buyer agrees to cooperate with Seller in connection with any such exchange. Such
cooperation by Buyer shall include, but is not limited to, executing documents as reasonably may
be required by Seller.
Section 23. Not An Offer.
The submission of this Agreement to Buyer for review or signature does not
constitute an offer to release the Property to Buyer or the granting of an option or other rights
with respect to the Property to Buyer. No agreement with respect to the transaction described in
this Agreement shall exist, and this writing shall have no binding force or effect, until executed
and delivered by both Seller and Buyer.
Section 24. Severability.
In the event that any of the provisions of this Agreement shall be held to be
invalid or unenforceable by a court of competent jurisdiction under applicable law, the remaining
portions hereof shall remain In full force and effect and such provision shall be enforced to the
maximum extent possible so as to effect the intent of the parties and shall be reformed to the
extent necessary to make such provision valid and enforceable.
Section 25. Entire Agreement.
It is understood and agreed that all understandings and agreements, whether
written or oral, heretofore had bettveen the parties are merged in this A^eement, which alone
hilly and completely expresses their agreement, that neither party is relying upon any statement
or representation not embodied in tlris Agreement, made by the other, and that this Agreement
may not be changed except by an instrument in writing signed by both parties.
(Remainder of page Intentionally le^ blank.)
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IN WITNESS WHERE٥F, the parties have executed this Agreement in duplicate as of
the date hrst herein witten.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
؛SELLER
ẾắBy:
Printed
Title: General Director-Field Operations (West)
EAST BROADWAY INVESTMENT COMPANY, LLC,
an Idaho limited liability company
BUYER:
By: Mountain West Group, LLC,
an Idaho limited liability company, its sole member
By:
Title: Manager
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ECIPBITA
PRINT DATED MAY 14, 2018
(TO BE ATTACHED)