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HomeMy WebLinkAbout1989-11-02-R � r RESOLUTION BE IT RESOLVED that Jim Shirrell , Mayor of Batesville, Arkansas and Larry Williams, Clerk of the City of Batesville, Arkansas are hereby authorized to execute on behalf of the City of Batesville, a Contract for Sale of Real Property between the City of Batesville and Worthen Bank and Trust Company and any other documents necessary to transfer title to the property described in said contract for Sale of Real Property to the City of Batesville, Arkansas. BE IT FURTHER RESOLVED, that the Mayor shall further have the authority to act on behalf of the City regarding the negotiations between the City and Worthen Bank and Trust Company toward effecting a closing of this transaction. taw WHEREFORE No have hereunto set our hands and seals this 2gT� day of . .�.;OVEM-REIZ- . , 1989 . Ao YOR JIM SHIRRELL 1: . . . . .Sr4 4X:.^-�° o ;-� LARR.Y WIL IAMS, CLERK (W CONTRACT FOR SALE OF REAL PROPERTY This contract is made and entered into this day of lVe e ezzz A.-,2,- 1989 , by and between Worthen Bank & Trust Company, N.A. , a state chartered banking institution with its principal place 'of business in the City of Little Rock, Pulaski County, Arkansas (hereinafter called "Seller" ) , and the City of Batesville, Independence County, Arkansas (hereinafter referred to as "Buyer") . KNOW ALL MEN BY THESE PRESENTS THAT: WHEREAS, Seller has agreed to sell, and Buyer has agreed to buy, subject to the terms and conditions hereof, that certain parcel of real property situated in Independence County, 4W Arkansas, as described more fully herein, for the purchase price of $700, 000; and WHEREAS, the parties wish to reduce to writing the terms and conditions of their agreement . NOW, THEREFORE, for in consideration of the mutual covenants and agreements herein contained, the parties do hereby agree as follows : 1 . AGREEMENT OF SALE: Seller does hereby agree - to sell and convey unto Buyer, and Buyer does hereby agree to purchase from Seller, upon the terms and conditions and subject to the provisions hereinafter set forth, a parcel of real property located in the City of Batesville, Independence County, Arkansas, as more particularly described in the legal ArNk description attached hereto as Exhibit A, which exhibit is incorporated herein by reference as fully as if set forth word for word, together with all improvements, additions, fixtures, rights , and appurtenances thereunto belonging (hereinafter referred to as "property" ) . 2 . PURCHASE PRICE: Buyer agrees to pay and Seller agrees to accept as the total purchase price for the property the sum of $700,000, said purchase price to be paid by Buyer to Seller in the following manner and at the following times, to-wit : (a) Earnest Money: Contemporaneously with the execution of this instrument, Buyer shall deposit into an interest bearing account with Seller the sum of $50, 000, such sum to be applied against the purchase price at closing . Provided, in the event the sale contemplated herein shall not be completed on the terms and conditions hereof, other than as a result of the breach of any term or condition herein contained on the part of the Seller, then and in such event Seller shall be entitled to retain as its sole and separate property the entire $50 , 000 , as liquidated damages for Buyer ' s possessive failure to complete the sale contemplated hereby, which sum the parties agree is a fair and reasonable estimate of the damages Seller may sustain. (b) Balance of Purchase Price: The remaining portion of the purchase price in the sum of $650 , 000 shall be paid in cash or certified funds to Seller at closing . -2- 3 . TITLE: Within ten days from the date of execution of this contract by both Buyer and Seller, Seller shall , at Seller ' s sole cost and expense, furnish to Buyer a binder of title insurance (title commitment) issued by a title company acceptable to Buyer setting forth the current state of title to the property together with a full and true copy of each easement and other document referred to in the exceptions portion of the title binder . Buyer shall then have ten days from the date of delivery to examine the title binder and title documents and give notice to Seller in writing of Buyer ' s objection to any exceptions appearing therein. In the event Buyer should object to any exception, Seller shall then have until ten days before the closing date specified herein in which to satisfy Buyer ' s objections to any such exception. If Seller is unable to cure or otherwise obtain the release of any such exceptions to the satisfaction of Buyer, then Buyer shall have the option to ( 1) waive any such exception and proceed with this transaction; or (2) terminate this contract . In the event of a termination of this contract by Buyer pursuant to the options provided in this paragraph, Buyer shall be entitled to a return of the $50,000 in earnest money, but shall not be entitled to reimbursement or recovery of any other sums, expenses , costs , fees, advances , or other expenditures of any kind which may have been made or incurred by Buyer in connection with this transaction. In the event Buyer fails to give written notice of objection to any L -3- exception contained within the title binder and associated documents within ten days from receipt, Buyer shall be deemed to have waived any right it might have to object to such exceptions, and shall further be deemed to have contracted to purchase the property subject to any such exceptions . On the date of closing, Seller shall furnish to Buyer an updated copy of the title binder reflecting the removal or modification of any exceptions as may be required to comply with Buyer ' s objections as provided in the preceding paragraph. The title binder shall commit to issue to Buyer, as soon as possible following closing, and effective as of the date and time of closing, an owner ' s policy of title insurance on the same terms and conditions as specified in such title binder in the sum of $700, 000 . All requirements contained in the title binder shall be satisfied by Seller at Seller ' s sole cost and expense prior to or at the closing of this real estate sales transaction. 4 . CLOSING DATE: The closing date for this transaction shall be March 30, 1990, at 10 :00 a .m. , in the City of Batesville, Independence County, Arkansas, or at such earlier or other date, time, and location as may be mutually agreed upon by the parties . Provided, the closing date shall not be extended past March 31, 1990, other than by written agreement executed by both parties . 5 . BUYER' S RIGHTS, DUTIES, AND OBLIGATIONS PRIOR TO CLOSING: Subsequent to the execution of this instrument and -4- AfN prior to the closing of this transaction, Buyer shall have the following rights, duties, liabilities , obligations , and responsibilities : (a) Possession: Buyer shall not have the right to possession of the property until the closing date of this transaction. (b) Improvements : Buyer desires to make certain improvements to the property so as -to render the property suitable for the Buyer ' s intended use of the property. Buyer shall have the limited right of entry to the property for the purpose of making such repairs, improvements , modifications, and the like, subject to the following terms and conditions : (i) Buyer shall have the right to have its representatives, and specifically an architect, look at the first floor of the property for the purpose of preparing plans and specifications for modification of the building . So long as the purpose of such entry is for inspection only, and no modification or alternation of the premises is conducted, Buyer or Buyer ' s representatives or agents , shall have the absolute right to enter upon the premises for such purpose, at any and all reasonable dates and times , on notice to Seller; -5- (W Buyer shall have the right to modify, alter, and improve the first floor of the building located on the real property to suit Buyer ' s needs. Buyer shall not make any such modifications, improvements, or alternations without first submitting detailed plans and specifications to Seller . Seller shall have the absolute right, in its discretion, to consent to or reject such plans or specifications . Seller shall notify Buyer within five (5) business days of the date of receipt of any proposed plans or specifications of Seller ' s decision as to whether or not it will consent to such proposed plans and specifications . In the event of rejection, Buyer shall be entitled to make such further or additional plans or proposals as may �r be appropriate to satisfy or meet any objection Seller may have. Seller shall have the absolute right, however, to reject any proposed plans or proposals , and to prohibit Buyer from entering upon the property for the purpose of conducting any repairs, improvements, modifications , or alterations contemplated by such plans or proposals , without in any way relieving Buyer from obligations it may otherwise have pursuant to this agreement . (iii) In the event Seller consents to Buyer ' s proposed plans and specifications , then and in such event Buyer shall have the right to enter upon the (W -6- premises to make such modifications, repairs, alterations, or improvements, and shall have the authority to authorize the entry upon the premises for such purpose by any contractors or other employees, agents, or contractors as it may hire to perform such work. Any and all such repairs or improvements shall be done at Buyers sole cost and expense, and shall be in accordance with the plans and specifications to which Seller has consented. (iv) In the event this transaction shall not be closed, Seller shall be entitled to the immediate possession of the property, including any repairs, modifications, improvements, or alterations which may have been completed by Buyer, and Seller shall be absolutely entitled to the benefit , if any, resulting from such repairs, modifications, alterations, or improvements . (v) Buyer agrees to take any steps necessary to protect Seller from any and all liability, of any and every kind, whether for personal injury, property damage, or any other loss or injury, which may result in any way from Buyer ' s entry upon the premises for the purpose of making alterations to the premises or otherwise. Additionally, Buyer shall obtain at its own cost and expense, liability, casualty, and -7- workers ' compensation insurance coverage, identifying the Seller as an additional insured, loss payee, or other appropriate designation, on terms and conditions, and with limits of liability or coverage as may be deemed satisfactory to Seller in its sole discretion. Such certificates evidencing the existence of such coverage shall be furnished to Seller, and shall be subject to approval by Seller, prior to Buyer ' s entry upon the property for any reason whatsoever, to include inspection. Such policies of insurance shall, at a minimum, provide adequate liability coverage for any injuries which may sustained by agents or representatives of Buyer or any person hired or employed by Buyer to perform any work related to or connected in any way with Buyer ' s alterations or modifications of the property; shall include casualty insurance coverage for the premises itself, insuring against any damages which may be caused by or result from Buyer ' s activities in any way; shall provide workers ' compensation coverage for any persons who are required to work, in any form or fashion, on or around the property; and shall provide liability coverage (all risks coverage) for any injuries which may result, in any way, from Buyer ' s activities . Unless and until Buyer shall obtain -8- certificates of insurance, in a form satisfactory to Seller, Buyer shall not be entitled to enter upon the property for any reason whatsoever . Such failure on the part of Buyer shall not, however, without the express written consent and waiver of Seller, relieve Buyer from any other obligation herein contained, and particularly Buyer ' s obligation to purchase the property. (vi) If the City requires that a bond be posted for any work on the property, Seller shall be named as an additional obligee. 6 . SELLER' S OBLIGATIONS: In addition to other representations, warranties, and obligations contained herein, Seller hereby warrants and represents to Buyer, and obligates itself to perform, as follows : (a) Seller shall convey title to Buyer at closing by special warranty deed. (b) That all mechanical apparatus located on or in the improvements affixed to the property are, or will be put, in good working condition as of the date of closing, including the heating, air conditioning, plumbing, electrical systems, and the pneumatic system, as well as any elevator or similar device which may be located on the property. This warranty, however, shall not apply or extend to any changes, alterations, modifications, or -9- problems which may result or occur at any date subsequent to the date of execution of this instrument by or as a result of any activities by, for, on behalf of, or at the direction of Buyer . Time is of the essence to this provision, and the parties agree that the time deadlines specified herein shall be strictly complied with and that either party may insist on strict enforcement --' of such dealines . Furthermore, the deadlines specified herein shall apply regardless of the type or nature of the defect, and particularly regardless of whether the defect is latent or hidden in any way. Provided, the parties agree that the air conditioning compressor must be repaired or replaced, and that Seller has and does agree to make such repair or replacement at its own cost and expense. (c) Notwithstanding the foregoing, Seller makes no warranty or representation as to the structure itself, and Buyer, by execution of this instrument, obligates itself to purchase the property in its present condition, as is, where is, without warranties or representations of any kind. 7 . Casualty Losses Prior to Closing : In the event of any damage or destruction of the property prior to closing, Seller shall be absolutely entitled to all proceeds of any insurance policies on the property. Seller shall further have the option, -10- in its sole discretion, to either restore the premises to a condition substantially equivalent to that which existed prior to the casualty, and proceed with this transaction or in the alternative, to declare this contract null and void and retain all insurance proceeds . In the event Seller exercises the latter option, Buyer shall be entitled to a return of its $50, 000 earnest money deposit, but shall not otherwise be entitled to any reimbursement or recovery for any sums, costs , or expenses it may have incurred or advanced in connection with this transaction. 8 . In the event Buyer ' s activities pursuant to any provision hereof authorizing Buyer to enter upon the property prior to closing shall result in the creation or existence of any lien or encumbrance of any kind on the property, Buyer shall promptly obtain the removal and release of any such lien, and shall save, defend, indemnify, and hold harmless Seller of and from any liability, responsibility, cost of defense, or the like, in connection with any proceedings to enforce such lien or which may otherwise result from the existence of such lien. 9 . In the event this transaction shall fail to close, for any reason, Buyer agrees to execute any instruments which may be necessary to release, relinquish, and convey to Seller any right, title, or interest it may have in and to the property, immediately following the failure of this transaction to close as provided herein. -11- Af- 10 . Notices and Communications : Any notices or other communications required or which may be given under the terms of this contract shall be deemed sufficiently given if forwarded by registered or certified mail, return receipt requested, postage prepaid, addressed as follows : If to Seller : Max Sears Worthen Bank & Trust Company, N.A. 3rd Floor Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Copy to : Isaac A. Scott, Jr . Wright, Lindsey & Jennings 2200 Worthen Bank Building 200 West Capitol Avenue Little Rock, Arkansas 72201-3699 If to Buyer : Jim Sherrill , Mayor City of Batesville 170 South 4th Street Batesville, Arkansas 72501 The date of service of such notice or other communication shall be the date on which the same is received by the party to whom addressed. 11 . Attorneys ' Fees and Costs : In any action or proceeding to enforce the terms and conditions of this contract or to recover damages for its breach or both, the prevailing party shall be entitled to a reasonable attorneys ' fee as established by the court in such proceeding, together with all -12- costs and expenses incurred by the prevailing party in any such legal or equitable action. 12 . Entirety: This contract constitutes the entire understanding and agreement by and between the parties hereto and supersedes any and all prior negotiations, written or oral agreements, understandings , representations , warranties, or statements at any time made or had by and between the parties hereto or any representatives or agents by either of the parties . Except as specifically provided by the terms of this contract, there are no covenants, agreements, understandings, warranties , representations , or the like, by and between the parties, hereto effecting any of the subject matter hereof or binding upon either of the parties . (W 13 . Amendment and Waiver : No amendment or modification hereof shall be deemed valid unless first reduced to writing and dated and signed by all parties . No waiver of any of the provisions in this contract shall be valid unless such waiver is in writing duly executed and dated by the party or parties sought to be charged therewith. 14 . Binding Effect : This contract shall be binding upon and inure to the benefit of the parties, their respective heirs , successors, and assigns . 15 . Prorations : All taxes or other special assessments shall be prorated as of the date of closing . -13- 16 . Utilities : Buyer shall be solely responsible for payment of all utility expenses as of the date of closing . Seller shall be entitled to retain any deposits which may currently be held by any utility in connection with the existing services . 17 . Survival : Obligations of Buyer hereunder, and in particular the obligations of Buyer pursuant to paragraph 5(b) (v) , shall survive closing and shall be binding upon and inure to the benefit of the parties respective heirs , successors, and assigns . IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this day of Z)ea c" �G2 1989 . CITY OF BATESVILLE As Buyer By: ATTESTED BY: C I Ty C 1"C�` WORTHEN BANK & TRUST COMPANY, N.A. As Seller By: ATTESTED BY: C11W 2236Y / L -14-