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.
l.l.l 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 axe 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); rovided, 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-OS 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 subj ect 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 A reement.
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 Appr~ oval. 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 -
Cit Council shall hold a public hearing regarding the intent to
4.2.3.1 y
exchange real property.
er notice and hearin ,the City Council must have approved
4.2.3.2 Aft g
' t and authorized the Ma or to sign all necessary papers to complete
this Agreemen Y
the exchange transaction contemplated by this Agreement.
al of Encroachments. MDSS shall effect the removal of any and all
4.2.5 Remov
b its tenant that exceed the boundaries of Parcel B and encroach on
encroachments caused y
City's lot 2, block 1 of the Storey Park Subdivision.
ditions Precedent to Obli ations of Each Party. The obligations of each
4.3 Con g
under this A reement are subject to the satisfaction of the following conditions:
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4.3.1 R_e resentations and Warranties True. The representations and warranties
art are true com lete, and accurate as of the date of this Agreement and as of the date
of each P y p
of Closing as if made as of such date.
4.3.2 Covenants Performed. Each Party has performed all obligations,
covenants and a reements to be performed before Closing as set forth in this Agreement.
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4.3.3 Title Polic . The Title Company is prepared to issue policies in
accordance with the provisions of Section 1.4.
4.3.4 Execution and Deliver of Documents. The Parties (and others where
re uired shall have executed and delivered to the Closing Agent the following:
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(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.
S. CLOSING.
5.1 Definition. "Closing" shall occur on the date on which the deeds to all
ro ernes are recorded in satisfaction of the requirements of this Agreement.
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5.2 Closin Agent. The Closing Agent for this Agreement shall be Pioneer Title
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Com an of Ada County ("Closing Agent"). Each Party shall each pay one-half of the Closing
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Agent's Closing Fees at Closing.
COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 5 -
• e of Closin .Closin shall be at the offices of the Closing
5.3 Time, Date and Plac g g .
arch 2014 or at such other time, date, and place as maybe
Agent on or before the 31st day of M ,
mutually agreed by the Parties.
' Instructions. The Parties shall execute and deliver to the Closing
5.4 Closing Agent
' e form enerall rovided by the Closing Agent with such modifications
Agent instructions on th g y p .. .
the Parties that are consistent with the terms and conditions of this
as are reasonably made by
reement for the u ose of effecting the transaction provided herein.
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6. GENERAL PROVISIONS.
oration of Recitals. The recitals set forth in this Agreement are a material
6.1 Incorp
and inte ral art of this Agreement and are incorporated herein by reference.
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Governin Law Jurisdiction, and Venue. This Agreement shall be construed
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' ted in accordance with the laws of the State of Idaho. The Parties agree that the
and lnterpre
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 Ri hts Cumulative. Except as expressly provided in this Agreement, and to the
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extent ermitted b law, an remedies described in this Agreement are cumulative and not
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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 b reason of the failure of the other Party to observe or perform a term or condition set
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forth in this A reement shall not be a waiver of such term or condition. A waiver by a Party
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i shall not affect an term or condition other than the one specified in such waiver, and (ii) shall
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waive a s ecified term or condition only for the time and in a manner specifically stated in the
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waiver.
6.6 Entire A reement. All Schedules and Exhibits to this Agreement are a part of
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this A reement. This Agreement, together with the accompanying Schedules and Exhibits, is t
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entire a reement amon the Parties and supersedes all prior memoranda, correspondence,
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conversations and negotiations.
6.7 Severabili .The invalidity of any portion of this Agreement, as determined by a
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court of com etent 'urisdiction, shall not affect the validity of any other portion of this
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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 A reement and said default is cured with the assistance of an attorney for the other party
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and before the commencement of a suit thereon, as a part of curing said default, the reasonable
attorne s' fees incurred by the other party shall be reimbursed to the other party upon demand.
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COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - b -
' ' e arties concernin this Agreement, the unsuccessful
In the event of any litigation between th p g
' ' 'mburse the revailin party for all reasonable costs and
party in such litigation shall fully rel p g
'ncludin reasonable attorney's fees, incurred in such litigation.
expenses,l g
' resentations Warranties, and Covenants. All representations,
6.10 Survival of Rep ~ .
' Parties set forth in this Agreement shall survive the Closing and
warranties, and covenants of the
shall survive the recording of the Warranty Deeds}.
GREEMENT. MDSS acknowledges that this agreement will be
7, EXECUTION OF A
SS before CITY executes the agreement and that the execution of the
executed by MD ..
the CITY is contin ent u on ratification of the terms and conditions of this
agreement by g p . .
the Meridian Cit Council and the Council's authorization for the Meridian
agreement by Y
Cit Ma or to execute this agreement on behalf of the CITY.
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$. SIGNATURES.
Dated this .t 4 day of t-~ , 2014
MERIDIAN DAIRY & STOCK SHOWS, INC.
Hillebrand J. Bruijn, Presi t
MERIDIAN DAIRY & STOCK SHOWS, INC.
Gerald W. Mattison, Secretary
Dated this ~ day of ~. , 2014
THE CITY OF ME
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Tammy deJ~C~'~rd, Mayor
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ayce .Holman, City Clerk ':f~ ~~
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COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 7 -
STATE OF IDAHO )
ss.
County of Ada )
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On this ~~ day of Cc~ , 2014, before me,
not ublic in and for said state, personally app red Hillebrand J. Bruin and Gerald W. Mattison
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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.
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STATE OF IDAHO )
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County of Ada )
NOTARY PUBLIC FOR IDAHO
Residing at: j Idaho
My Commission expires: h , Z ~ , 20Z~
On this da of , 2014, before me, a notary public in and for
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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, I have hereunto set my hand and affixed my official seal the
day and year first above written.
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COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT - 8 -
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EXHIBIT C
RECORDING REQUESTED BYAND
WHEN RECORDED RET URN T0:
SAMPLE DEED
DO NOT RECORD
(Space Above For Recorder's Use)
WARRANTY DEED
aluable consideration, the receipt of which is hereby acknowledged,
For the v
("Grantor"), conveys, grants and warrants to
("Grantee"), whose address is
and its successors and assigns
forever, the following described real property:
See Exhibit "A" attached hereto and incorporated herein.
SUBJECT TO an and all existing easements, rights-of way, reservations, restrictions
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and encumbrances of record, to any existing tenancies, to all zoning laws and ordinances,
and to an state of facts an accurate survey or inspection of the premises would show.
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This conve ance shall include any and all estate, right, title, interest, appurtenances, tenements,
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reversions remainders easements, rents, issues, profits, rights-of way and water rights in
hereditaments,
an wise a ertaining to the property herein described as well in law as inequity.
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rantor covenants to the Grantee that Grantor is the owner in fee simple of said premises; that the
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free from all encumbrances, exce ting those as may be herein set forth, and excepting those of
premises are p
record, and that Grantor will warrant and defend the same from all lawful claims.
COMMERCIAL REAL ESTATE EXCHANGE AGREEMENT -11
the Grantor has executed this instrument on this day of
IN WITNESS WHEREOF,
2009.
STATE OF IDAHO )
ss.
County of )
' da of , 20 ,before me ,personally
On this y
known or identified to me (or proved to me on the oath of
appeared
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