HomeMy WebLinkAboutFinal Contract Police Station LandREAL ESTATE PURCHASE AND SALE AGREEMENT
(Rexburg Land Group, LLC)
REAL ESTATE PURCHASE AND SALE AGREEMENT, dated the last day of execution below (“Effective Date”), between the Purchaser and Seller identified in Section 2. Purchaser and Seller agree
as follows:
1. Purchase and Sale. Purchaser shall purchase and Seller shall sell the Property under the terms and subject to the conditions set forth in this Agreement.
2. Parties. The name, address and fax number of Purchaser and Seller are:
2.1 Seller
Rexburg Land Group, LLC
3300 Cameron Park Drive, Suite 200
Cameron Park, CA 95682
Attn: Jon K. Gibson
Phone: (530) 672-9900
Email: jongibson@jongibsoncompany.com
(with a copy to)
Clemons & Jaquish
100 Clock Tower Place, Suite 120
Carmel, CA 93923
Attn: Timothy C. Clemons, Esq.
Phone: (919) 939-3939
Email: tim@clemlaw.net
2.2 Purchaser
City of Rexburg
Mayor
Attn: Jerry Merrill
35 N. 1st East
Rexburg, ID 83440
Phone: (208) 359-3020
Email: jerry.merrill@rexburg.org
(with a copy to)
City of Rexburg
City Attorney
Attn: Spencer Rammell, Esq.
35 N. 1st East
Rexburg, ID 83440
Phone: (208) 359-3020
Email: spencer.rammell@rexburg.org
3. Property. The Property is comprised of those certain parcel(s) of real property located in the City of Rexburg, Madison County, Idaho, located adjacent to The Village Rexburg Apartments
on Pioneer Road, Rexburg, ID 83440, commonly known as Madison County Tax Parcel No. RPR6N39E254951. The legal description of the Property shall be provided by the Fidelity National
Title Company. The Property shall include the following:
3.1 Land. Those certain tracts of real estate legally described by the Fidelity National Title Company, together with all easements, covenants, rights, water rights, privileges, tenements
and appurtenances now or hereafter belonging or appertaining thereto (collectively, the “Land”).
3.2. Improvements. All structures, fixtures and other improvements of every kind, if any, now or hereafter in, on, over and under the Land, including, without limitation, any and all
landscaping, walkways, sidewalks, and lighting fixtures (collectively, the "Improvements") (the Land and Improvements, collectively, referred to as the "Premises").
3.3. Tangible Personal Property. Intentionally omitted.
3.4. Licenses, Leases and Contracts. Intentionally omitted.
3.5. Intangibles. All right, title and interest of Seller in all intangible personal property now or hereafter owned by Seller or in which Seller otherwise has an interest, and used
in connection with or arising from the Property or any part thereof (collectively, the “Intangible Personal Property”), including, without limitation, all existing surveys, blueprints,
drawings, plans and specifications, reports (including, without limitation, soils, environmental and engineering reports) and to the extent assignable, all land use entitlements, development
rights, licenses, permits, and authorizations.
3.6 Representations; As-Is Condition of Property. Purchaser acknowledges that prior to Closing, Purchaser shall have inspected the Property, and as of Closing, Purchaser will have
satisfied itself in all respects therewith, including, but not limited to, all matters related to Hazardous Materials, and that Purchaser will be purchasing the Property on an AS IS,
WHERE IS basis. Purchaser agrees that, other than the express warranties contained in Section 14.1 herein or in the statutory warranty deed, Seller has made no representations, warranties
or agreements of any kind or nature regarding the Property, express or implied and Seller expressly disclaims any warranties or representations, whether express or implied, including
any warranty of habitability, merchantability, or fitness for a particular purpose, including without limitation any of the following matters in any way related to or arising from:
(1) the stability or suitability of the soil on the Property; (2) the presence or absence of any hazardous substances in, on, under or about the Property; (3) building, zoning, sensitive
area, and all similar State and local laws or other law, rule, ordinance or regulation restricting the use, renovation, repair, improvement, or occupancy of the Property for any purpose;
(4) the size or area of the Property and the location of boundaries; and (5) any defective condition of the Property; and Purchaser hereby releases, waives, and renounces any claim
against Seller related to any or all of the matters discussed in this Section 3.6.
4. Price. The Purchase Price is $1,300,000.
5. Payment of Purchase Price. The Purchase Price shall be paid at Closing, via cashier’s check, wire transfer, or other immediately available funds.
6. Earnest Money; Feasibility Consideration. No later 5 days after the Effective Date, Purchaser shall deposit an Earnest Money in the amount of $10,000.00 with the Escrow Agent(the
“Earnest Money Deposit”). Upon Purchaser’s approval of the Preliminary Title Commitment, the Property and the Property
Information within the Feasibility Period, the Earnest Money shall become nonrefundable to Purchaser and shall be deemed consideration for the granting by Seller of the Feasibility Contingency
Period for Purchaser to exercise Purchaser’s right to satisfy and approve the Feasibility Contingency herein contained, and should Purchaser fail to timely approve the Feasibility Contingency,
the Earnest Money Deposit shall be released by the Escrow Agent to Seller, less the Feasibility Consideration, upon the expiration of the Feasibility Contingency Period. Following the
satisfaction or waiver of Purchaser’s Feasibility Contingency, the Earnest Money shall become nonrefundable to Purchaser. If Purchaser fails to purchase the Property in accordance with
its obligations under this Agreement, Seller’s exclusive remedy for such failure shall be to terminate this Agreement and retain the Earnest Money, the parties agreeing that the damages
that would be incurred by Seller in such event would be difficult or impossible to determine with precision and that the amount of the Earnest Money is reasonable in light of such difficulty
or impossibility, the Purchase Price, and the nature of the Property. Notwithstanding anything in this Agreement to the contrary, a portion of the Earnest Money, to wit, the amount
of $100.00 (the “Feasibility Consideration”) shall be nonrefundable and shall be distributed to Seller by Escrow Agent from the Earnest Money upon any timely termination of this Agreement
by Purchaser as independent consideration for the granting by Seller of the time periods herein contained for Purchaser to exercise Purchaser’s right to satisfy and approve all of Purchaser’s
conditions herein contained. The Feasibility Consideration is deemed by the parties as adequate consideration for Purchaser’s right to satisfy and approve all of Purchaser’s conditions,
is non-refundable, but shall be applied to the payment of the Purchase Price. Any provision of this Agreement that states the Earnest Money is to be returned to Purchaser means that
the Earnest Money, less the Feasibility Consideration, is to be returned to Purchaser.
7. Title Matters.
7.1 Conveyance. At Closing, Seller shall deliver a statutory warranty deed purporting to convey and conveying good and marketable fee simple title to the Property to Purchaser, subject
only to Permitted Exceptions.
7.2 Title Review.
7.2.1 Not later than three (3) business days following the execution of this Agreement by Seller and Purchaser, Purchaser shall be furnished with a Preliminary Title Commitment for the
Title Policy (the “Preliminary Title Commitment”) from the Fidelity National Title at 2200-B Douglas Blvd., Suite 200, Roseville, CA, 95661, Attention Sheri Pickard (the “Title Company”).
The Preliminary Title Commitment shall be accompanied by complete copies of any exceptions identified in Schedule B thereof.
7.2.2 Purchaser shall have five (5) business days after its receipt of the Preliminary Title Commitment in which to notify Seller of its approval and disapproval of each exception in
Schedule B. Failure to so deliver such notice shall constitute Purchaser’s approval of all exceptions in Schedule B. Exceptions not disapproved by Purchaser shall be Permitted Exceptions.
Notwithstanding the foregoing, monetary encumbrances not expressly assumed by Purchaser shall not be Permitted Exceptions but shall be paid by Seller on or before Closing.
7.2.3 Seller shall have five (5) business days after its receipt of Purchaser’s notice in which to notify Purchaser of its election to cure or remove any of the disapproved exceptions.
Seller’s failure to so notify Purchaser shall constitute Seller’s election not to remove such exceptions. Seller shall remove all exceptions it elects to remove on or before Closing.
7.2.4 If Seller does not elect to remove all exceptions disapproved by Purchaser, Purchaser may, within five (5) calendar days after Sellers’ notice, elect to terminate this Agreement,
in which case the Earnest Money shall be returned to Purchaser. If Purchaser does not so elect to terminate this Agreement, disapproved exceptions that Seller has not elected to remove
shall become Permitted Exceptions.
7.3 Policy. At Closing, Seller shall cause the Title Company to issue to Purchaser the Title Policy, which shall be an ALTA standard coverage Purchaser’s policy of title insurance (2006
ALTA Purchaser’s Policy), insuring Purchaser in the amount of the Purchase Price against any loss or damage by reason of defects in the title to the Property delivered at Closing, other
than Permitted Exceptions. At Purchaser’s option, Purchaser may require that the Title Policy be issued with ALTA extended coverage (“Extended Coverage”) or title endorsements desired
by Purchaser; provided that Seller will not be required to incur any additional expenses in obtaining the Extended Coverage or endorsements in excess of the cost of “standard coverage”.
If Purchaser elects to require Extended Coverage, Purchaser will be responsible for any additional out-of-pocket costs of the survey required for such Extended Coverage, whether or
not this transaction closes.
7.4 Title Not Insurable. If title is not insurable at Closing in accordance with this Agreement, Seller shall not be in default under this Agreement, unless Seller has intentionally
failed or refused to deliver title and Purchaser may elect to proceed to Closing despite such noninsurability or may terminate this Agreement and receive the return of the Earnest Money.
8. Contingencies.
8.1 Purchaser’s Feasibility Contingency; Property Information.
8.1.1 Feasibility Contingency Period. Purchaser shall have no obligation to purchase the Property unless Purchaser determines in its sole and absolute discretion that its purchase,
use and development of the Property in accordance with its intentions will be physically, financially and otherwise feasible (“Purchaser’s Feasibility Contingency”). Purchaser shall
notify Seller in writing on or before the expiration of twenty (20) days after the Execution Date (defined below) of this Agreement (the “Feasibility Contingency Period”) that it has
made such determination, whereupon Purchaser’s contingency under this Section 8 shall be satisfied. If Purchaser does not timely notify Seller or waive Purchaser’s Feasibility Contingency
in writing, this Agreement shall terminate and the Earnest Money, less the Feasibility Consideration, shall be released to Purchaser and neither party shall have any further obligation
to the other under this Agreement (except as such provisions as are otherwise expressly specified to survive termination).
8.1.2 Property Information. Within five (5) business days after the Effective Date, Seller shall deliver to Purchaser, for Purchaser’s information and review, copies of all contracts,
documents, instruments, surveys, studies, reports, correspondence or other papers of significance relating to the Property in Seller’s possession or reasonably requested by Purchaser
(“Property Information”).
9. Possession, Site Visits and Inspections.
9.1 Purchaser shall be entitled to possession of the Property upon Closing. Prior to Closing, Purchaser shall have the right for itself and its agents, employees, contractors, consultants
and advisors (“Purchaser’s Representatives”) to enter onto the Property and to conduct such inspections and studies as Purchaser may deem necessary and appropriate, at Purchaser’s sole
cost and expense. Purchaser shall have access during normal business hours. Notwithstanding the foregoing, before any such entry, Purchaser
shall require that Purchaser’s contractors or inspectors provide Seller with a certificate of insurance reflecting coverage and meeting the conditions specified in Section 9.4 below.
In addition, no Phase II environmental inspection or other invasive inspection or sampling of soils, water, air or other materials, including without limitation construction materials,
for analytical testing, either as part of the Phase I inspection or any other inspection (collectively “Invasive Testing”), shall be performed without the prior written consent of Seller,
which Seller shall not unreasonably withhold. Purchaser shall submit to Seller a written plan describing any Invasive Testing in reasonable detail and the party who will perform the
Invasive Testing (an “Invasive Testing Plan”) for Seller's written approval, which Seller shall not unreasonably withhold. Purchaser may not proceed with any Invasive Testing unless
Seller has expressly approved in writing the relevant Invasive Testing Plan, and Purchaser shall conduct all Invasive Testing in compliance with the Invasive Testing Plan approved by
Seller. Seller shall have the right to request and receive split samples of any materials collected for analysis by or for Purchaser.
9.2 No Disruption. Purchaser and Purchaser’s Representatives shall conduct inspections and studies on the Property during the Feasibility Contingency Period in a manner which is not
disruptive to normal operation of the Property and the adjacent property owned by Purchaser. Purchaser and all Purchaser’s Representatives shall, in performing activities in connection
on the Property or during Purchaser’s Feasibility Contingency, comply with any and all laws, ordinances, rules, and regulations applicable to the Property and will not engage in any
activities which would violate any applicable lease, permit, license, or law or regulation.
9.3 Indemnification. Purchaser shall indemnify, protect, defend and hold Seller harmless from and against any obligation, liability, claim (including any claim for damage to property
or injury to or death of any persons), lien or encumbrance, loss, damage (excluding special, punitive, or consequential damages), cost or expense, including reasonable attorneys’ fees,
whether or not legal proceedings are instituted, in any way arising from the access to and inspections or examinations of the Property by Purchaser or any Purchaser’s Representative,
but not to the extent that any of the foregoing matters are caused by the negligence of Seller or result from the pre-Closing discovery of an existing latent defect or existing environmental
condition at the Property (in which event Purchaser shall not be required to indemnify the Seller for such existing latent defect or existing environmental condition). The obligations
under this Section 9.3 shall survive termination of this Agreement.
9.4 Required Insurance. Prior to any entry onto or inspections of the Property by Purchaser and any Purchaser’s Representatives, Purchaser shall: (a) maintain commercial general liability
(occurrence) insurance in an amount no less than $1,000,000 and on commercially reasonable terms adequate to insure against all liability arising out of any entry onto or inspections
of the Property, (b) deliver to Seller certificates of insurance for Purchaser and any Purchaser’s Representatives entering onto the Property naming Seller and its property manager
as additional insureds prior to entry upon the Property; (c) promptly pay when due all costs of all inspections, studies and examinations done with regard to the Property; and (d) if
the transaction contemplated hereby fails to close, restore the Property to substantially the same condition in which the same were found before any such entry upon the Property and
inspection or examination was undertaken. This obligation shall survive termination of this Agreement.
9.5 Purchaser’s Delivery of Studies and Reports upon Termination. If the transaction fails to close for any reason other than a default by Seller, Purchaser agrees to provide Seller
with copies of all written studies, reports, surveys and other documents prepared for Purchaser by third parties with respect to the environmental, physical or other condition of the
Property. Purchaser will not thereby be warranting, and shall not be responsible for, the accuracy, completeness, fitness or usability of such reports or the conclusions or recommendations
stated therein.
10. Closing. Closing of the purchase and sale shall occur when the statutory warranty deed has been delivered and recorded and the Purchase Price has been delivered to Seller or is
available to Seller. Closing shall be conducted through escrow at the offices of Fidelity National Title Company (“Escrow Agent”). This Agreement, together with such other instructions
as either party may submit that are consistent with this Agreement, shall be the escrow instructions to the Escrow Agent. Closing shall occur on a date designated by Purchaser and
reasonably acceptable to Seller, which shall be on or before thirty (30) days following the Execution Date (the “Closing Date”). The parties shall each timely deposit with the Escrow
Agent all instruments, documents and moneys necessary to enable the purchase and sale to close in accordance herewith. Real estate taxes for the current year and assessments that are
Permitted Exceptions for the current year shall be prorated as of the date of Closing. At Closing, any charges or assessments levied against the Property before Closing but due after
Closing including, without limitation, capacity or facilities charges for sewer or water service for the Property shall be assumed or paid by Purchaser.
11. Closing Costs. Seller shall pay any real property transfer tax, one-half of the fees of the Escrow Agent, the premium for the Title Policy, up to the amount of the premium that
would be charged for Purchaser’s standard coverage title insurance, its own attorneys’ fees, and other closing costs customarily borne by sellers. Purchaser shall pay the cost of recording
the deed, one-half of the fees of the Escrow Agent, the amount by which the premium for the Title Policy and any endorsements desired by Purchaser exceeds the premium that would be
charged for Purchasers’ standard coverage, its own attorneys’ fees, and other closing costs customarily borne by purchasers.
12. Risk of Loss. If the Property or any part thereof is destroyed or damaged prior to Closing, Seller shall promptly notify Purchaser in writing of any such damage or destruction.
In the event of destruction or damage, Purchaser may elect to either (a) proceed to Closing, or (b) terminate this Agreement in which case the Earnest Money shall be returned to Purchaser.
If Purchaser elects to proceed to Closing, Purchaser shall be entitled to the benefits of all applicable insurance policies affecting the Property and, at Closing, Seller shall (i)
credit against the Purchase Price the amount of deductibles under all applicable insurance policies, and (ii) shall execute and deliver to Purchaser all required proof of loss, assignments
of claims and other similar items.
13. Fencing Between Properties/Restricted Access Rights.
Purchaser hereby acknowledges that an entity affiliated with Seller, to wit, Village Apartments at Rexburg, LLC (the “Rexburg Village Apartments Owner”) owns the adjoining Village Apartments
Property. Purchaser agrees to construct a fence (and a crash gate) between the Property and the Rexburg Village Apartments, provided, however, that Purchaser shall compete construction
on the fence (and the crash gate) prior to Purchaser’s commencement of Purchaser’s development of the Property. Seller and Purchaser shall mutually work together over the design of
such fencing.
Purchaser also hereby acknowledges that the Rexburg Village Apartments Owner will not permit any access routes to the property from the Rexburg Village Apartments (other than emergency
first responder vehicles) and that all other access rights (ingress and egress) to and from the Property shall be solely contained within the Property.
14. Representations and Warranties.
14.1 Seller’s Representations. Seller makes the following representations and warranties to Purchaser, and acknowledges that Purchaser is relying on such representations and warranties
in entering into this Agreement. Such representations and warranties are true as of the date of this Agreement, shall be true as of and at the Closing, shall survive Closing, and shall
not be waived or diminished by reason of
any investigation made by Purchaser or its agents. As used in this Agreement, any reference to the knowledge of Seller means the actual, present knowledge of Jon K. Gibson without investigation
and expressly excludes imputed or constructive knowledge.
14.1.1 Existence, Power and Authority. Seller is validly in existence, with full power and authority as such entity to own its properties and conduct its business as presently conducted.
The execution of this Agreement by the undersigned signatory and performance of the transactions contemplated by this Agreement have been duly authorized by all necessary action on
the part of such entity.
14.1.2 No Conflict. The execution of this Agreement and the carrying out of the transactions contemplated hereby will not conflict with or result in a breach of any agreement, contract,
commitment, undertaking, order, judgment or decree that is binding on Seller. Except as may have been specifically disclosed in writing by Seller to Purchaser prior to this Agreement,
there is no litigation or other proceeding pending or overtly threatened against Seller that could have a material adverse effect on the ability of Seller to perform its obligations
under this Agreement, or otherwise involving the Property.
14.1.3 Hazardous Materials. Except as otherwise included in the Property Information, Seller has received no written notice from any federal, state, county or municipal authority as
to: (a) the existence of any Hazardous Materials on the Property in violation of any Environmental Law; or (b) the current violation of any Environmental Laws with respect to the Property.
To the knowledge of Seller, except as otherwise specified in any reports or studies contained in the Property Information: (i) the Premises do not contain Hazardous Materials; (ii) the
soil, surface water and ground water of, under, on or around the Premises do not contain Hazardous Materials; (iii) the Premises has never been used for or in connection with the manufacture,
refinement, treatment, storage, generation, transport or hauling of any Hazardous Material in violation of or in excess of levels permitted by applicable Environmental Laws, nor has
the Premises been used for or in connection with the disposal of any Hazardous Materials; and (iv) the Premises is now and at all times has been in compliance with all Environmental
Laws. As used in this Agreement: “Hazardous Materials” means (x) any radioactive materials; (y) any substance or material the transportation, storage, treatment, handling, use, removal
or release of which is subject to any Environmental Law; or (z) any substance or material for which standards of conduct are imposed under any Environmental Law. Without limiting the
generality of the foregoing, Hazardous Materials include: asbestos and asbestos-containing materials (whether or not friable); urea-formaldehyde in any of its forms; polychlorinated
biphenyls; oil, used oil; petroleum products and their by-products; lead-based paint; radon; and any substances defined as “hazardous waste,” “hazardous substances,” “pollutants or
contaminants,” “toxic substances,” “hazardous chemicals,” “hazardous pollutants,” or “toxic chemicals” under any law, statute, ordinance or regulation governing environmental matters
or hazardous materials. As used in this Agreement, “Environmental Law” shall mean any federal, state or local laws, ordinance, permits or regulations, or any common law, regarding
health, safety, radioactive materials or the environment, each as amended, and any regulations promulgated under those laws, guidance and directives issued with respect to those laws,
or policies adopted by the applicable authorities under those laws.
14.1.4 Prohibited Persons and Transactions. Neither Seller nor any of its affiliates, nor any of its respective partners, members, shareholders or other equity owners, and none of its
respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom United States persons or entities are restricted from doing
business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons
List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit,
or Support Terrorism), or other governmental action and is not and will not engage in any dealings or transactions or be otherwise associated with such persons or entities.
14.1.5 Seller Not a Foreign Person. Seller is not a foreign person under Section 1445 of the Code.
14.1.6 Disclosures. Seller has disclosed to Purchaser all material facts known to Seller (“known” as defined in Section 14.1) concerning the Property or this Agreement, without duty
of investigation, and any facts which are known to Seller and necessary to make those that have been disclosed not misleading, of which Seller is aware.
14.1.7 Litigation and Condemnation. Except otherwise disclosed to Purchaser in the Property Information, Seller has not received written notice of and, to the knowledge of Seller, there
are no: (a) pending or threatened claims, actions, suits, arbitrations, proceedings (including condemnation proceedings) or investigations by or before any court or arbitration body,
any governmental, administrative or regulatory authority, or any other body, against or affecting the Property or the transactions contemplated by this Agreement; or (b) orders, judgments
or decrees of any court or arbitration body, any governmental, administrative or regulatory authority, or any other body, against or affecting the Property or the transactions contemplated
by this Agreement.
14.1.8 Taxes and Assessments. To the knowledge of Seller, there are no pending or threatened improvements liens, or special assessments made or to be made against the Property by any
governmental authority other than the Permitted Exceptions.
14.1.9 Compliance with Laws. Seller has received no written notice that Seller has not complied, and is currently not in compliance with, any federal, state and local laws, regulations
and ordinances applicable to the development, ownership, operation, maintenance and management of the Property, and/or otherwise applicable to Seller, including, without limitation,
any laws, regulations and ordinances relating to zoning, planning, land use and building restrictions, construction, subdivision, fire, health and safety, and disability.
14.1.10 Rexburg Land Group, LLC is not currently owned or operated by the Government of China, as defined in Idaho Code § 67-2359.
14.1.11 In accordance with Idaho Code § 67-2346 Rexburg Land Group, LLC certifies that it is not currently engaged in a boycott of goods or services from Israel or territories under
its control.
14.2 Purchaser’s Representations. Purchaser makes the following representations and warranties to Seller, and acknowledges that Seller is relying on such representations and warranties
in entering into this Agreement. Such representations and warranties are true as of the date of this Agreement, shall be true as of and at the Closing and shall survive Closing.
14.2.1 Authority. The execution and delivery of this Agreement and the performance of Purchaser’s obligations hereunder have been duly authorized by all necessary action on the part
of Purchaser, and this Agreement constitutes the legal, valid and binding obligation of Purchaser, subject to equitable principles and principles governing creditors’ rights generally.
15. Commission. Each of Purchaser and Seller warrant and represent to the other that there are no brokers, agents, or finders and there are no finders’ fees, commissions, or similar
fees due in connection with this Agreement. Each of Purchaser and Seller shall indemnify, defend, and hold the other harmless from and against all liability, loss, cost, damage, or
expense (including but not limited to reasonable
attorneys’ fees and costs) that the other party incurs due to any claim by a broker, agent, or finder claiming under such indemnifying party, whether or not such claim is meritorious.
16. Notices. Notices and other communications under this Agreement shall be in writing and shall be effective when received by personal delivery to the other party, or received by certified
mail, return receipt requested (which receipt shall be deemed to occur three days after mailing), or sent by fax or email, in each case to the address, fax number or email address set
forth in Section 2, directed to the attention of the person identified therein.
17. Default; Remedies. If either party fails to perform its obligations when due under this Agreement, and such failure continues following notice from the other party and a five (5)
day opportunity to remedy such failure, such party shall be in default. If Purchaser is in default, Seller’s exclusive remedy shall be as set forth in Section 6. If Seller is in default,
Purchaser may either (a) demand and receive the return of the Earnest Money and may maintain an action for its actual damages, or (b) maintain an action for specific performance (together
with recovery of costs and attorneys’ fees incurred in such action), provided that an action for specific performance is commenced within sixty (60) days of the scheduled Closing Date.
In no event shall Purchaser be entitled to recover consequential damages, such as lost profits.
18. Attorneys’ Fees. In any litigation or other proceeding arising out of this Agreement, the substantially prevailing party shall be entitled to an award of its reasonable attorneys’
fees and other costs incurred therein, in the preparation therefor, and on any appeal thereof.
19. General Provisions.
19.1 Time is of the essence of this Agreement.
19.2 This Agreement is the entire agreement of the parties concerning the subject matter, and may not be modified except in a writing signed by both parties.
19.3 This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns.
19.4 If the date for any performance under this Agreement falls on a weekend or a holiday, the time for such performance shall extend to the next business day.
19.5 Any Exhibits identified in this Agreement are incorporated into and made a part of this Agreement.
19.6 This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho. In any action arising under this Agreement, venue shall be in Madison County,
Idaho.
19.6 This Agreement may be executed in any number of counterparts, each of which shall be effective only upon delivery, including delivery by facsimile, Portable Document Format (pdf)
email transmission and/or any electronic signature transmission format, and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument,
for the same effect as if all parties hereto had signed the same signature page. Any signature page of this Agreement may be detached from any counterpart of this Agreement without
impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional
signature pages. Signatures transmitted via facsimile, e-mail and/or by any electronic signature format as defined under the US Federal ESIGN Act (ex. DocuSign, Adobe Sign, and the
like)
shall be considered original, authentic and binding, and each party waives the right to assert that such copies fail to comply with the Best/Secondary Evidence Rule in any legal forum.
20. Right of First Offer. If at any time prior to Purchaser’s development of the Property, Purchaser desires to offer the Property for sale, Purchaser hereby grants to Seller (and/or
any affiliate of Seller) a “one-time right” of first offer to purchase the Property (“ROFO”) for the same purchase price ($1,300,00.00) as paid by Purchaser (the “Repurchase Price”).
If, and only if, Purchaser desires to sell the Property prior to Purchaser’s development of the Property, Purchaser shall provide written notice to Seller (“Purchaser’s Notice”) of
Purchaser’s election to sell the Property. Seller shall, within thirty (30) calendar days after receipt of the Purchaser’s Notice, indicate, in writing (“Seller’s Exercise of ROFO”),
Seller’s willingness to purchase the Property for the Repurchase Price. If Seller does not timely exercise the ROFO by timely issuing Seller’s Exercise of ROFO, Purchaser thereafter
shall have the right to sell the Property to any other third party pursuant to any terms and conditions as may be agreed upon by Purchaser and such third party, and Seller’s ROFO shall
thereafter become null and void and of no further force or effect.
21. 1031 Exchange. The parties acknowledge that either party may desire to structure the sale or the purchase of the Property as an exchange pursuant to Section 1031 of the Internal
Revenue Code of 1986. The parties agree to reasonably cooperate with each other to accomplish such exchange(s) and each party hereby agrees that any and all costs associated with said
exchange shall be borne solely by the exchanging party and shall in no way be attributable to the non-exchanging party. In no event shall the non-exchanging party be required to take
title to the exchanged property(ies) to effectuate the tax-deferred exchange contemplated by this Paragraph.
22. Further Acts. The parties shall execute such further documents and take such other further actions as may be reasonably necessary to carry out the intent and provisions of this
Agreement.
[no further text on this page; signature page(s) follow]
EXECUTED as of the dates indicated below.
SELLER:
Rexburg Land Group, LLC, an Idaho limited liability company
By: Jon Gibson Company, a California corporation, its Manager
By: _________________________
Jon K. Gibson, President
Date: ________________________
PURCHASER:
City of Rexburg
By: ____________________________
Name: __________________________
Title: ___________________________
Date: ___________________________
Original Approved as to Form:
By: ____________________________
Name: Spencer Rammell
Title: City Attorney
Date: _________________________
ATTEST:
By: _________________________
Name: _______________________
Title: City Clerk
Date: ________________________