HomeMy WebLinkAbout111-04 RESOLUTION•
RESOLUTION NO. 111- 0 4
A RESOLUTION AUTHORIZING CITY STAFF TO DEVELOP
AND PRESENT TO TYSON FOODS, INC. AN OFFER AND
ACCEPTANCE CONTRACT FOR THE PURCHASE OF
PROPERTY LOCATED AT 1851 EAST HUNTSVILLE ROAD IN
AN AMOUNT NOT TO EXCEED $1,100,000.00, CONDITIONED
UPON FURTHER CITY COUNCIL APPROVAL; AND
APPROVING A BUDGET ADJUSTMENT IN THE AMOUNT OF
$1,000,000.00 FOR THE PROPERTY PURCHASE AND $551,000.00
TRANSFER FROM GENERAL FUND TO SALES TAX CAPITAL
IMPROVEMENT FUND.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby authorizes City Staff to develop and present to Tyson Foods, Inc. an Offer
and Acceptance contract for the purchase of property located at 1851 East
Huntsville Road in an amount not to exceed $1,100,000.00, made contingent
upon an investigation of the acceptability of the roof and the absence of any toxic
materials or buried fuel tanks on said property, and conditioned upon further
City Council approval.
Section 2. That the City Council of the City of Fayetteville, Arkansas
hereby approves a Budget Adjustment in the amount of $1,000,000.00 for the
property purchase and $551,000.00 transfer from General Fund to Sales Tax
Capital Improvement Fund.
ATTEST:
PASSED AND APPROVED this 20th day of July, 2004.
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,�,G�•APPROVED:
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:FAYETTEVILLE: _
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By: Ste% it
S NDRA SMITH, City Clerk
By:
DAN COODY, May
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REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT (the "Agreement"), made and
entered into this day of September, 2004 by and between Tyson Foods, Inc., a Delaware
corporation (hereinafter called "Seller"), and The City of Fayetteville, an Arkansas Municipal
corporation (hereinafter referred to as `Buyer"). This Agreement shall become effective on the
date of the full execution by both parties hereto ("Effective Date").
WITNESSETH:
WHEREAS, Seller is the owner of certain real property located in Washington County,
Arkansas; and
WHEREAS, subject to the terms and conditions set forth herein, Buyer desires to purchase
said property from Seller and Seller desires to sell said property to Buyer;
NOW, THEREFORE, in consideration of the premises recited, of the covenants,
agreements and provisions of this Agreement, and of other good and valuable consideration, the
receipt and sufficiency of which the parties hereby acknowledge, the parties hereby agree as
follows:
1. Agreement to Sell and Buy. Seller hereby agrees to sell to Buyer, and Buyer
hereby agrees to purchase from Seller, for the consideration and upon the terms and conditions
hereinafter set forth, the lands situated in Washington County, Arkansas, more particularly
described on Exhibit "A" attached hereto, together with all improvements thereon, and all rights,
privileges and appurtenances pertaining thereto, but subject to any matter disclosed herein, all
recorded or restrictions, easements, and other matters of record. All property sold pursuant to this
Agreement is hereinafter referred to as the "Property."
2. Price and Terms of Payment. As the purchase price for the Property, Buyer
agrees to pay and Seller agrees to accept, a total purchase price of ONE MILLION ONE
HUNDRED THOUSAND AND NO/100 DOLLARS ($1,100,000.00) (the "Purchase Price") as
adjusted pursuant to the terms of this Agreement. Within ten (10) days after Buyer's receipt of a
fully -executed copy of this Agreement, Buyer shall tender to Seller (or Seller's representative), the
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sum of ELEVEN THOUSAND AND NO/100 DOLLARS ($11,000.00) (the "Earnest Money" or
"Deposit") as earnest money in connection with the above-described transaction.
3. Closing.
(a) Time and Place. Subject to the terms and conditions set forth in this Agreement,
closing and settlement for the sale and purchase of the Property shall take place at a time and place
as is mutually agreed to by Seller and Buyer; provided, however that if any of the conditions to
Closing set forth in this Agreement have not been satisfied or waived by the party entitled to the
benefit of such condition, the Closing will take place on the third business day after such condition
has been satisfied or waived, but in no event shall the closing occur later than January 31,
2005. The time at which such closing and settlement occurs shall hereinafter be referred to as the
"Closing" and the date on which the Closing occurs shall hereinafter be referred to as the "Closing
Date."
(b) Payment of the Purchase Price. The Purchase Price shall be paid by the Buyer to
the Seller at the Closing, and Buyer shall deliver to Seller cash in the form of a cashier's check or
wire transfer in an amount equal to the Purchase Price, less the Earnest Money and adjusted by
any prorations or other amounts described herein.
4. Conditions Precedent to Closing. Buyer represents and Seller hereby acknowledges
that Buyer intends to use the Property for municipal purposes ("Intended Use"). Therefore, the
purchaae contemplated by this Agreement is subject to the following conditions precedent:
(a) If the Survey provided for in Section 10 discloses any condition which renders the
Property unusable for the Intended Use (as determined in Buyer's reasonable discretion), then Buyer
may rescind this Agreement and the Deposit will be refunded to Buyer, provided, however, that
Buyer has exercised such rescission right by giving Seller written notice with evidence of such
condition no later than December 15, 2004.
(b) If the results of the analyses, inspections, test borings, or studies pursuant to this
Agreement, disclose that the physical condition of the Property, including the existence of
hazardous wastes and toxic substances, will prevent Buyer from reasonably developing the
Property for the Buyer's intended use, then Buyer or Seller may rescind this Agreement,
whereupon the Deposit will be refunded to Buyer; provided however, that Buyer or Seller has
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notified the other party in writing, with evidence of such unacceptable condition, within fifteen
(15) days after the Buyer or Seller receives the results of such analyses, inspections, borings, or
engineering studies, but not later than December 15, 2004.
(c) Buyer, being able to obtain the approval of the purchase of the Property
contemplated by this Agreement by the City Council of Fayetteville. Buyer covenants to use its
best efforts, and act in a good faith and diligent manner to obtain such approval from the
Fayetteville City Council. If Buyer is unable to obtain such a commitment, then Buyer may
rescind this Agreement, whereupon the Deposit will be refunded to Buyer; provided however, that
Buyer has notified Seller in writing, but not later than December 15, 2004.
(d) Buyer and Seller reaching a mutual agreement as to naming a defined space of the
Property. Buyer and Seller covenant to act in good faith to reach such an agreement. If such
agreement cannot be reached, then Seller may rescind this Agreement, whereupon the Deposit will
be refunded to Buyer.
5. Representations and Warranties of Seller. Seller hereby represents and warrants
to Buyer, now and at Closing, as follows:
(a) Authority; Enforceability. No authorizations or approvals, whether of
governmental bodies, creditors, or otherwise, are necessary to enable Seller to enter into and
perform the transactions contemplated herein with respect to the purchase of the Property. This
Agreement has been duly and validly executed and delivered by Seller, is a valid and legally -
binding agreement of Seller, and, assuming due acceptance and execution thereof by Buyer, is
enforceable against Seller in accordance with its terms, except as limited by bankruptcy and
insolvency laws and by other laws affecting the rights of creditors generally; and
(b) Title to Property. Seller has good and marketable title to, and is in possession of,
the Property free and clear of all security interests, including any conditional sale or other title
retention agreements, mortgages, pledges, assessments, or defects in title that would render the
title to the Property uninsurable or unmarketable, except for current ad valorem taxes, matters of
public record and minor encroachments or matters not material to the use or occupation thereof.
Seller has not granted any options to purchase or otherwise acquire all or any part of the Property.
Neither the whole nor any portion of the Property has been condemned, requisitioned or otherwise
taken by any public authority, and no notice of any such condemnation, requisition or taking has
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been received by Seller. To the knowledge of Seller, no such condemnation, requisition or taking
is threatened or contemplated.
(c) Disclaimer. SELLER MAKES NO REPRESENTATION OR WARRANTY
(EXCEPT AS TO THE WARRANTY OF TITLE CONTAINED IN THE DEED)
CONCERNING THE VALUE OF THE PROPERTY, THE CONDITION OF ANY
IMPROVEMENTS LOCATED UPON THE PROPERTY, THE ENVIRONMENTAL
CONDITION OF THE PROPERTY, THE PRESENCE OR ABSENCE OF ANY
HYDROCARBONS, ASBESTOS, ENVIRONMENTAL, HAZARDOUS MATERIAL OR
TOXIC CONTAMINATION OF THE PROPERTY, THE SUITABILITY OF THE
PROPERTY FOR A PARTICULAR PURPOSE, THE GEOLOGICAL CONDITION OF
THE PROPERTY, THE MERCHANTABILITY OF THE PROPERTY, OR ITS FITNESS
FOR A PARTICULAR PURPOSE. THIS SECTION SHALL SURVIVE THE CLOSING
OR EARLIER TERMINATION OF THE AGREEMENT. The term "Hazardous Materials"
means any substance (a) the presence of which requires reporting, investigations, or remediation
under any current federal, state, or local statute, regulation or ordinance or (b) which are currently
defined as hazardous substances, toxic substances, regulated substances, pollutants, or
contaminants under any current federal, state, or local statute, regulation, or ordinance, including
hydrocarbons and asbestos.
6. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller, now and at Closing, as follows:
(a) Authority; Enforceability. This Agreement is expressly made subject to the
approval of the Fayetteville City Council and is not valid or binding until the City Council has
voted to approve the same. No other authorizations or approvals, creditors, or otherwise, are
necessary to enable Buyer to enter into and perform the transactions contemplated herein with
respect to the purchase of the Property. This Agreement has been duly and validly executed and
delivered by Buyer, is a valid and legally -binding agreement of Buyer, and, assuming a vote
approving the same by the City Council and assuming due acceptance and execution thereof by
Seller, is enforceable against Buyer in accordance with its terms, except as limited by bankruptcy
and insolvency laws and by other laws affecting the rights of creditors generally; and
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(b) Advice of Attorney. Buyer understands and acknowledges that the purchase of the
Property and the other transactions contemplated hereby are typical of transactions in which the
advice of an attorney is typically sought. Buyer has either sought and obtained the advice of an
attomey in this regard or waived the right to seek such advice.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER
ACKNOWLEDGES THAT IT HAS INSPECTED THE PROPERTY AND WILL TAKE
THE SAME AT CLOSING IN AN "AS IS, WHERE IS, WITH ALL FAULTS"
CONDITION. BUYER HEREBY WAIVES AND RELEASES ANY CAUSES OF ACTION
OR CLAIMS THAT IT MIGHT HAVE AGAINST SELLER RELATES TO THE
CONDITION OF THE PROPERTY OTHER THAN FOR BREACHES OF THIS
AGREEMENT. THIS SECTION SHALL SURVIVE THE CLOSING.
7. Covenants of the Parties. Each party to this Agreement shall use its reasonable
efforts to cause conditions to their obligations herein set forth to be satisfied prior to the date of
Closing. Each of the parties hereto agrees to execute and deliver any and all further agreements,
documents or instruments reasonably necessary to effectuate this Agreement and the transactions
referred to herein or contemplated hereby or reasonably requested by the other party to perfect or
evidence their rights hereunder. Assuming the timely satisfaction, or the waiver, of the conditions
precedent to Closing set forth herein, all parties shall use their reasonable efforts to effect and
complete the transactions contemplated by this Agreement as promptly as practicable. Each party
shall promptly notify the other party of any information delivered to or obtained by such party
which would prevent the consummation of the transactions contemplated by this Agreement, or
would indicate a breach by the other party (or parties) of the representations, warranties and
covenants of either party to this Agreement.
8. Title Insurance and other Closing Costs. Seller shall obtain at the Seller's
expense either a certificate of title to, or a policy insuring fee simple title to the Real Property in
favor of Buyer, from a Title Company/Escrow Agent of Seller's choice ("Escrow Agent"). Buyer
shall have five (5) days following receipt of said title insurance commitment in which to notify
Seller in writing of any exceptions to which Buyer objects, other than those set forth in Section
5(b) of this Agreement. Seller may elect, in Seller's sole discretion, to cure those exceptions
which can be cured by the payment of money, and Seller shall have fifteen (15) days in which to
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cure any remaining exceptions. In the event Seller elects not to cure all such exceptions within
such fifteen (15) day period, Buyer may by notice in writing given to Seller within ten (10) days
after such election not to cure, either waive its objections to the exceptions which Seller has
elected not to cure, whereupon the parties shall proceed with the Closing in accordance herewith,
or terminate this Agreement, and Seller will refund Buyer the Eamest Money. Buyer and Seller
hereby agree that all closing costs not expressly addressed herein shall be paid by the party
typically responsible for such costs pursuant to local custom of the county where the Property is
situated.
9. Deed Prior to Closing, Seller shall deliver to Escrow Agent a special warranty
deed ("Deed") conveying insurable title to the Property, subject to permitted exceptions and
incorporating the covenants, conditions, and restrictions set forth in Section 17 of this Agreement
("Deed Restrictions"). Upon receipt of the Purchase Price at Closing, Escrow Agent shall record
the Deed and other recordable documents as may be delivered in connection with the Closing. It
is further understood and agreed that the Deed Restrictions shall be inserted by the Buyer under
this Agreement in every deed or ground lease to be delivered by it conveying lots, plots, or other
portions of the Property or any interest therein and that such insertions of such Deed Restrictions
in such deed or ground lease shall be deemed a part of the consideration of this Agreement. This
section shall survive closing
10. Survey. Buyer, at Buyer's sole responsibility and expense, shall obtain a current
survey of the Property made and prepared by a registered licensed surveyor ("Survey") no later
than thirty (30) days after full execution of this agreement. Within five (5) days after receipt,
Buyer shall furnish a copy of the Survey to both Seller and the Title Company. The legal
descriptions provided by the Survey shall be the descriptions used in the deed conveying the Property
to and in the title insurance policy.
11. Right of Entry. At any reasonable time prior to the closing, and at Buyer's sole
cost and responsibility, Buyer or its authorized agents shall have the right to enter upon the
Property for any lawful purpose, including, without limitation, conducting the Survey as
contemplated by this Agreement and any site analyses, test borings, and engineering studies
following advance notice to Seller of Buyer's need for access, including the scope and location of
any invasive testing. If requested by Seller, the Buyer will reasonably cooperate with Seller's
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environmental group in conducting its environmental studies on the Property. Buyer agrees to
defend, indemnify and hold harmless Seller from any damages or liability to persons or property
that might arise therefrom, and Buyer agrees to repair at its sole cost and responsibility, or pay
Seller the cost of, any damages caused to the Property by such entry. This Section shall survive
the Closing or earlier termination of this Agreement.
12. Indemnity. Buyer indemnifies and holds harmless Seller for any claims, damages,
liabilities, losses, costs and expenses (including reasonable attorney's fees and expenses) incurred
or paid in settlement as a result of or relating to any environmental soil or groundwater
contamination or Hazardous Materials on or below the Property. This language shall survive the
Closing.
13. Taxes and Assessments. Seller shall, prior to Closing, have paid all property taxes
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and assessments levied or extended in the future on the Property for 2003 and prior years; such
taxes and assessments for 2004 and any year thereafter, shall be prorated between the parties as of
the Closing Date.
14. Real Property Transfer Tax. Any real property or other transfer tax imposed by
the State of Arkansas in connection with the transactions contemplated hereby shall be paid by the
party required to pay such tax or taxes by the laws of the State of Arkansas, or otherwise pursuant
to local custom.
15. Broker's Commission. Each of the parties hereto represents and warrants to the
other that there are no real estate broker's commissions due or payable on account of this
Agreement or as a result of the sale of the Property to Buyer pursuant hereto. Each party agrees to
defend, indemnify and hold the other hereunder harmless from and against any claim for any such
commissions, fees or other form of compensation by any such third party claiming through the
indemnifying party, including, without limitation, any and all claims, causes of action, damages,
cost and expenses (including reasonable attorney's fees and court costs), associated therewith.
16. Termination.
(a) This Agreement may be terminated at any time prior to the Closing:
(i) by mutual consent of Seller and Buyer; or
(ii) by Buyer pursuant to Section 8 hereof; or
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(iii) due to a material default by either party of the Agreement which goes
uncured for ten (10) days after notice.
In the event of termination of this Agreement by Seller or Buyer as provided above,
this Agreement will forthwith become void, provided, however, if terminated pursuant to 16(a)(i)
or a Buyer default under 16(a)(iii), Buyer shall reimburse Seller for all costs, including but not
limited too, title fees, survey costs and legal fees, incurred in connection with this Agreement. If
terminated pursuant to 16(a)(ii) or a Seller default under 16(a)(iii), the Earnest money will be
refunded to Buyer:
17. Deed Restrictions. With respect to Deed Restrictions to be placed on the Property,
Seller and Buyer hereby agree to the following:
(a) Buyer covenants that the Property shall not be used for or in support of the
following: (i) the manufacturing of food products.
(b) All such covenants, conditions, and restrictions shall remain in effect for a period
of Twenty (20) years. The aforesaid covenants, conditions, and restrictions shall run with and
bind the Property, and shall bind Buyer, or its successors or assigns, and shall inure to the benefit
of and be enforceable by Seller, or an affiliated company, or its successors and assigns, by any
appropriate proceedings at law or in equity to prevent such violations of such covenants,
conditions, and restrictions and/or to recover damages for such violations.
18. Miscellaneous.
(a) Goveming Law. This Agreement shall be governed by, and construed under, the
laws of the State of Arkansas, all rights and remedies being governed by said laws.
(b) Assignment. This Agreement shall apply to, and shall be binding in all respects
upon, and shall inure to the benefit of, the respective successors, assigns and legal representatives
of the parties hereto; provided, however, that this Agreement may not be assigned, in whole or in
part, by any party without first obtaining the written consent of the other party.
(c) Waiver. No waiver of any term, provision or condition of this Agreement in any
one or more instances, shall be deemed to be or be construed as a further or continuing waiver of
any such term, provision or condition or as a waiver of any other term, provision or condition of
this Agreement. The rights or remedies set forth herein are in addition to any rights or remedies
which may be granted by law or equity.
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(d) Entire Agreement and Modification. This Agreement is intended by the parties
hereto as a final expression of their agreement with respect to the subject matter hereof and is
intended as a complete and exclusive statement of the terms and conditions of this Agreement.
This Agreement may not be modified, rescinded or terminated orally, and no modification,
rescission, termination or attempted waiver of any of the terms, provisions or conditions hereof
(including this subsection) shall be valid unless in writing and signed by the party against whom
the same is sought to be enforced.
(e) Section Headings. The headings of sections contained in this Agreement are
provided for convenience only. They form no part of this Agreement and shall not affect its
construction or interpretation. All references to sections or subsections refer to the corresponding
sections and subsections of this Agreement. All words used herein shall be construed to be of
such gender or number as the circumstances require. This "Agreement" shall mean this
Agreement as a whole and as the same may, from time to time hereafter, be amended,
supplemented or modified The words "herein," "hereby," "hereof," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Agreement as a whole and not to any
particular section, subsection, paragraph, clause or other subdivision hereof, unless otherwise
specifically noted.
(0 Time of Essence. With respect to all time periods and duties set forth in this
Agreement, time is of the essence.
(remainder of page left intentionally blank)
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Counterparts This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original copy of this Agreement and all of which, when taken
together, shall be deemed to be but one and the same Agreement.
IN WITNESS WHEREOF, Seller and Buyer have caused this Agreement to be duly
executed as of the date firs‘an.
• q,S,
YO,c•:, cn•ME
• 0• •�BUYER:
E ; fAYETIEVILLE; = CITY OF FAYETTEVILLE, ARKANSAS,
"s▪ �z•,•'ti z•a Muni& .. Corporation
e7:*-1RKANS"Pel
QVLGL [t t 1 .."...01./
WITNESS:
Sondra Smith, City Clerk
ATTEST:
tpweeele
Title:
Real Estate Contract—Fayetteville, AR
Dan oody, Ma
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SELLER:
TYSON FOODS, INC.,
a Delaware corporation
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By:
Title:
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EXHIBIT "A"
PROPERTY DESCRIPTIONS
***NOTE: (An updated legal description will be inserted here upon completion of the Survey as
specified in section 9 of this Agreement)***
It is the intent of this Agreement to convey title only Donor's land surrounding the building
commonly known as the old Mexican Original Processing Plant located at the southeast comer of
Highway 16 and Happy Hollow Road Fayetteville, AR.
PacePafcei. Ni;. 165-15221430C: ;peed HOOK +093 at Face 857.:
Partt uI the Northeast C .arter (NE'":} of he Vert •.vcs1 Ct.arler 'N':J„1 of `,oc tir-n 23 Towt:si .p :8
Ncrin n' Range 30 1: est of :-if:h 15:5 P- rieca: Merid.a'1 'Nasnir ton County. Arkansas. mare
ca.•.c,.:ar v CBSe:-Lce as 'OlinmS, to-.. t. fie'.:. nrl 1^y at a pour;: en t^e east. richt of v.41y of H191-vm:
ay ::ass :vnich s 10.00 `cel Pas: and N G3' 25.30' k 2L'_OO'ce: Voir he SW comer of so:a NL% 0'
'wv,i of Sect or 23. f--c_-N. 12-3C :'J. :pence oior, saic r ght of way N 03. 25' CG F. 40.00 feet.
:nenre :eaving sniff richt nl 'o ay East OC.00 feet. 1-e' ce N OC ' 25' CO.= 160 CO 'net. (recce Wes:
90.00 `eel In the Fast rgt•t of way of :1iy`lv.•ay:6 ay -pass. t'trncc .tioreg sa.d r x11•: c:f ::•;.r N CO.25.80"
E 530.0C feet. fie -Tee I4 69` 3C' 30' E 1:4.00 feet to :he inle-sectrcn ;I 1'1e [:cxdl-e y •:git of .vas, of
Higr n'ay 16. trertr:e :tong said 9. , or :vay S 67' 5 59' E 87 53 feel trace. S 70' 00' CO' c 23 t.ii;)
Zeta, thence- S 75' 31 •:7' r 23.: oo fee: 1., lhr; .i :exec' : - 01 Inc kNesi r 9r1 of way el Ray Avenuc-
:herce a1onn said right el way S 01' .17 Si:" S: 2Si4.69 feel. thence S 01' 00 :C- f. 330.2' }e%:_
thence IP v:itgsaic'Irh: of Way \Ves: 15C.00 `ee Ihence Seth '71.30 feet. to a^ exist n_c; fe-ce;i te,
Ihenreekln,said 'enrelire :Yc51257.i0fee:.trencc eavin;s»ir'ence:ineN00'25'CO' E20C JC
feet- Ihrr;e Wrest 740 Cil feel lo' -c PO Int of Liegineur1g, Cnr:arr.ng I_1fi aces, Tore or less sr.olecl
to r 911 of way ;aril erscrvenls of rec;ore
(Also Known as :85' E. Bends ;fie 1?roc::'-a•ae t.ev: le Ar'.arsas. an; ird:.des ianc. ail 9;.i oir;is. and
ccnu reiienfs ) NOTE: The cbovc desc' p:icn does floc :n ;It.uL Parcels N Jul tiered 7tt1.) 15254-0X)0
and 765-15205-000. tuge:'1cr arr.0-Jnifg to 0.33± acres. which d•e Irltendc,I to he rrnrt r.r this
transaction
Less and except:
the building and land beneath the building commonly known as the old Mexican Original
Processing Plant located at the southeast corner of Highway 16 and Happy Hollow Road
Fayetteville, AR.
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MICROVILR+i1)' Et -5, i/i-��
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REAL ESTATE DONATION AGREEMENT
THIS REAL ESTATE DONATION AGREEMENT (the "Agreement"), made and
entered into this day of September, 2004 by and between Tyson Foods, Inc., a Delaware
corporation (hereinafter called "Donor"), and The City of Fayetteville, an Arkansas Municipal
corporation (hereinafter referred to as "Donee"). This Agreement shall become effective on the
date of the full execution by both parties hereto ("Effective Date").
WITNESSETH:
WHEREAS, Donor is the owner of certain real property located in Washington County,
Arkansas; and
WHEREAS, subject to the terms and conditions set forth herein, Donee desires to accept
said property from Donor and Donor desires to convey said property to Donee;
NOW, THEREFORE, in consideration of the premises recited, of the covenants,
agreements and provisions of this Agreement, the parties hereby agree as follows:
1. Agreement to Convey. Donor hereby agrees to convey to Donee, and Donee
hereby agrees to accept the donation from Donor, upon the terms and conditions hereinafter set
forth, the lands situated in Washington County, Arkansas, more particularly described on Exhibit
"A" attached hereto, together with all improvements thereon, and all rights, privileges and
appurtenances pertaining thereto, but subject to any matter disclosed herein, all recorded or
restrictions, easements, and other matters of record. All property conveyed pursuant to this
Agreement is hereinafter referred to as the "Property."
2. Closing.
(a) Time and Place. Subject to the terms and conditions set forth in this Agreement,
closing for the donation of the Property shall take place at a time and place as is mutually agreed
to by Donor and Donee; provided, however that if any of the conditions to Closing set forth in this
Agreement have not been satisfied or waived by the party entitled to the benefit of such condition,
the Closing will take place on the third business day after such condition has been satisfied or
Oft
waived, but in no event shall the closing occur later than January 31, 2005. The time at which
such closing occurs shall hereinafter be referred to as the "Closing" and the date on which the
Closing occurs shall hereinafter be referred to as the "Closing Date."
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3. Conditions Precedent to Closing. Donee represents and Donor hereby
acknowledges that Donee intends to use the Property for municipal purposes ("Intended Use").
Therefore, the donation contemplated by this Agreement is subject to the following conditions
precedent:
(a) If the Survey provided for in Section 9 of this Agreement discloses any condition
which renders the Property unusable for the Intended Use (as determined in Donee's reasonable
discretion), then Donee may rescind this Agreement, provided, however, that Donee has exercised
such rescission right by giving Donor written notice with evidence of such condition no later than
December 15, 2004.
(b) If the results of the analyses, inspections, test borings, or studies pursuant to this
Agreement, disclose that the physical condition of the Property, including the existence of
hazardous wastes and toxic substances, will prevent Donee from reasonably developing the
Property for the Donee's intended use, then Donee or Donor may rescind this Agreement,
provided however, that the Donee or Donor has notified the other party in writing with evidence of
such unacceptable condition within fifteen (15) days after the Donee or Donor receives the results
of such analyses, inspections, borings, or engineering studies, but not later than December 15,
2004.
(c) Donee, being able to obtain the approval of the donation of the Property
contemplated by this Agreement by the City Council of Fayetteville. Donee covenants to use its
best efforts, and act in a good faith and diligent manner to obtain such approval from the
Fayetteville City Council. If Donee is unable to obtain such a commitment, then Donee may
rescind this Agreement, provided however, that Donee has notified Donor in writing, but not later
than December 15, 2004.
(d) Donee completing its purchase of that certain building adjacent to the Property
(commonly know as the old Mexican Original Processing Plant located at the southeast corner of
Highway 16 and Happy Hollow Road Fayetteville, AR). If such purchase is not completed by the
Donee on or before January 31, 2005, or the purchase is otherwise terminated, then Donor may
rescind this Agreement with there being no further obligations to Donee.
4. Representations and Warranties of Donor. Donor hereby represents and
warrants to Donee, now and at Closing, as follows:
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(a) Authority; Enforceability. No authorizations or approvals, whether of
governmental bodies, creditors, or otherwise, are necessary to enable Donor to enter into and
perform the conveyance contemplated herein with respect to the donation of the Property. This
Agreement has been duly and validly executed and delivered by Donor, is a valid and legally -
binding agreement of Donor, and, assuming due acceptance and execution thereof by Donee, is
enforceable against Donor in accordance with its terms; and
(b) Title to Property. Donor has good and marketable title to, and is in possession of,
the Property free and clear of all security interests, including any conditional sale or other title
retention agreements, mortgages, pledges, assessments, or defects in title that would render the
title to the Property uninsurable or unmarketable, except for current ad valorem taxes, matters of
public record and minor encroachments or matters not material to the use or occupation thereof.
Neither the whole nor any portion of the Property has been condemned, requisitioned or otherwise
taken by any public authority, and no notice of any such condemnation, requisition or taking has
been received by Donor. To the knowledge of Donor, no such condemnation, requisition or taking
is threatened or contemplated.
(c) Disclaimer. DONOR MAKES NO REPRESENTATION OR WARRANTY
(EXCEPT AS TO THE WARRANTY OF TITLE CONTAINED IN THE DEED)
CONCERNING THE VALUE OF THE PROPERTY, THE CONDITION OF ANY
IMPROVEMENTS LOCATED UPON THE • PROPERTY, THE ENVIRONMENTAL
CONDITION OF THE PROPERTY, THE PRESENCE OR ABSENCE OF ANY
HYDROCARBONS, ASBESTOS, ENVIRONMENTAL, HAZARDOUS MATERIAL OR
TOXIC CONTAMINATION OF THE PROPERTY, THE SUITABILITY OF THE
PROPERTY FOR A PARTICULAR PURPOSE, THE GEOLOGICAL CONDITION OF
THE PROPERTY, THE MERCHANTABILITY OF THE PROPERTY, OR ITS FITNESS
FOR A PARTICULAR PURPOSE. THIS SECTION SHALL SURVIVE THE CLOSING
OR EARLIER TERMINATION OF THE AGREEMENT. The term "Hazardous Materials"
means any substance (a) the presence of which requires reporting, investigations, or remediation
under any current federal, state, or local statute, regulation or ordinance or (b) which are currently
defined as hazardous substances, toxic substances, regulated substances, pollutants, or
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contaminants under any current federal, state, or local statute, regulation, or ordinance, including
hydrocarbons and asbestos.
5. Representations and Warranties of Donee. Donee hereby represents and
warrants to Donor, now and at Closing, as follows:
(a) Authority; Enforceability. This Agreement is expressly made subject to the
approval of the Fayetteville City Council and is not valid or binding until the City Council has
voted to approve the same. No other authorizations or approvals, creditors, or otherwise, are
necessary to enable Donee to enter into and -perform the transactions contemplated herein with
respect to the conveyance of the Property. This Agreement has been duly and validly executed
and delivered by Donee, is a valid and legally -binding agreement of Donee, and, assuming a vote
approving the same by the City Council and assuming due acceptance and execution thereof by
Donor, is enforceable against Donee in accordance with its terms, and
(b) Advice of Attorney. Donee understands and acknowledges that the donation of the
Property and the other transactions contemplated hereby are typical of transactions in which the
advice of an attorney is typically sought. Donee has either sought and obtained the advice of an
attomey in this regard or waived the right to seek such advice.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, DONEE
ACKNOWLEDGES THAT IT HAS INSPECTED THE PROPERTY AND WILL TAKE
THE SAME AT CLOSING IN AN "AS IS, WHERE IS, WITH ALL FAULTS"
CONDITION. DONEE HEREBY WAIVES AND RELEASES ANY CAUSES OF
ACTION OR CLAIMS THAT IT MIGHT HAVE AGAINST DONOR RELATES TO THE
CONDITION OF THE PROPERTY OTHER THAN FOR BREACHES 'OF THIS
AGREEMENT. THIS SECTION SHALL SURVIVE THE CLOSING.
6. Covenants of the Parties. Each party to this Agreement shall use its reasonable
efforts to cause conditions to their obligations herein set forth to be satisfied prior to the date of
Closing. Each of the parties hereto agrees to execute and deliver any and all further agreements,
documents or instruments reasonably necessary to effectuate this Agreement and the transactions
referred to herein or contemplated hereby or reasonably requested by the other party to perfect or
evidence their rights hereunder. Assuming the timely satisfaction, or the waiver, of the conditions
precedent to Closing set forth herein, all parties shall use their reasonable efforts to effect and
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complete the transactions contemplated by this Agreement as promptly as practicable Each party
shall promptly notify the other party of any information delivered to or obtained by such party
which would prevent the consummation of the transactions contemplated by this Agreement, or
would indicate a breach by the other party (or parties) of the representations, warranties and
covenants of either party to this Agreement.
7. Title Insurance and other Closing Costs. Donor shall obtain at the Donor's
expense either a certificate of title to, or a policy insuring fee simple title to the Real Property in
favor of Donee, from a Title Company/Escrow Agent of Donor's choice ("Escrow Agent").
Donee shall have five (5) days following receipt of said title insurance commitment in which to
notify Donor in writing of any exceptions to which Donee objects, other than those set forth in
Section 4(b) of this Agreement. Donor may elect, in Donor's sole discretion, to cure those
exceptions which can be cured by the payment of money, and Donor shall have fifteen (15) days
in which to cure any remaining exceptions. In the event Donor elects not to cure all such
exceptions within such fifteen (15) day period, Donee may by notice in writing given to Donor
within ten (10) days after such election not to cure, either waive its objections to the exceptions
which Donor has elected not to cure, whereupon the parties shall proceed with the Closing in
accordance herewith, or terminate this Agreement, and Donor will refund Donee the Eamest
Money. Donee and Donor hereby agree that all closing costs not expressly addressed herein shall
be paid by the party typically responsible for such costs pursuant to local custom of the county
where the Property is situated.
8. Deed. Prior to Closing, Donor shall deliver to Escrow Agent either a quit claim
deed, or a special warranty deed ("Deed") conveying insurable title to the Property, subject to
permitted exceptions and incorporating the covenants, conditions, and restrictions set forth in
Section 16 of this Agre ment ("Deed Restrictions"). At Closing, Escrow Agent shall record the
Deed and other recordable documents as may be delivered in connection with the Closing. It is
further understood and agreed that the Deed Restrictions shall be inserted by the Donee under this
Agreement in every deed or ground lease to be delivered by it conveying lots, plots, or other
portions of the Property or any interest therein and that such insertions of such Deed Restrictions
in such deed or ground lease shall be deemed a covenant of this Agre ment. This section shall
survive closing
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9. S y Donee, at Donee's sole responsibility and expense, shall obtain a current
survey of the Property made and prepared by a registered/licensed surveyor ("Survey") no later
than thirty (30) days after full execution of this age menta Within five (5) days after receipt,
Donee shall furnish a copy of the Survey to both Donor and the Title Company. The legal
descriptions provided by the Survey shall be the descriptions used in the deed conveying the Property
to and in the title insurance policy.
10. Right of Entry. At any reasonable time prior to the closing, and at Donee's sole
cost and responsibility, Donee or its authorized agents shall have the right to enter upon the
Property for any lawful purpose, including, without limitation, conducting the Survey as
contemplated by this Agreement and any site analyses, test borings, and engineering studies
following advance notice to Donor of Donee's need for access, including the scope and location of
any invasive testing. If requested by Donor, the Donee will reasonably cooperate with Donor's
environmental group in conducting its environmental studies on the Property. Donee agrees to
defend, indemnify and hold harmless Donor from any damages or liability to persons or property
that might arise therefrom, and Donee agrees to repair at its sole cost and responsibility, or pay
Donor the cost of, any damages caused to the Property by such entry. This Section shall survive
the Closing or earlier termination of this Agre ment.
11. Indemnity. Donee indemnifies and holds harmless Donor for any claims,
damages, liabilities, losses, costs and expenses (including reasonable attorney's fees and expenses)
incurred or paid in settlement as a result of or relating to any environmental soil or groundwater
contamination or Hazardous Materials on or below the Property. This language shall survive the
Closing.
12. Taxes and Assessments. Donor shall, prior to Closing, have paid all property
taxes and assessments levied or extended in the future on the Property for 2003 and prior years;
such taxes and assessments for 2004 and any year thereafter, shall be prorated between the parties
as of the Closing Date.
13. Real Property Transfer Tax. Any real property or other transfer tax imposed by
the State of Arkansas in connection with the transactions contemplated hereby shall be paid by the
party required to pay such tax or taxes by the laws of the State of Arkansas, or otherwise pursuant
to local custom.
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14. Broker's Commission. Each of the parties hereto represents and warrants to the
other that there are no real estate broker's commissions due or payable on account of this
Agreement or as a result of the sale of the Property to Donee pursuant hereto. Each party agrees to
defend, indemnify and hold the other hereunder harmless from and against any claim for any such
commissions, fees or other form of compensation by any such third party claiming through the
indemnifying party, including, without limitation, any and all claims, causes of action, damages,
cost and expenses (including reasonable attorney's fees and court costs), associated therewith.
15. Termination.
(a) This Agreement may be terminated at any time prior to the Closing:
(i) by mutual consent of Donor and Donee; or
(ii) by Donee pursuant to Section 7 hereof; or
(iii) due to a material default by either party of the Agreement
uncured for ten (10) days after notice.
(b) In the event of termination of this Agreement by Donor or Donee
which goes
as provided
above, this Agreement will forthwith become void.
16. Deed Restrictions. With respect to Deed Restrictions to be placed on the Property,
Donor and Donee hereby agree to the following:
(a) Donee covenants that the Property shall not be used for or in support of the
following: (i) the manufacturing of food products.
(b) All such covenants, conditions, and restrictions shall remain in effect for a period
of Twenty (20) years. The aforesaid covenants, conditions, and restrictions shall run with and
bind the Property, and shall bind Donee, or its successors or assigns, and shall inure to the benefit
of and be enforceable by Donor, or an affiliated company, or its successors and assigns, by any
appropriate proceedings at law or in equity to prevent such violations of such covenants,
conditions, and restrictions and/or to recover damages for such violations.
17. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by, and construed under, the
laws of the State of Arkansas, all rights and remedies being governed by said laws.
(b) Assignment. This Agreement shall apply to, and shall be binding in all respects
upon, and shall inure to the benefit of, the respective successors, assigns and legal representatives
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of the parties hereto; provided, however, that this Agreement may not be assigned, in whole or in
part, by any party without first obtaining the written consent of the other party.
(c) Waiver. No waiver of any term, provision or condition of this Agreement in any
one or more instances, shall be de med to be or be construed as a further or continuing waiver of
any such term, provision or condition or as a waiver of any other term, provision or condition of
this Agreement. The rights or remedies set forth herein are in addition to any rights or remedies
which may be granted by law or equity
(d) Entire Agreement and Modification. This Agreement is intended by the parties
hereto as a final expression of their agreement with respect to the subject matter hereof and is
intended as a complete and .exclusive statement of the terms and conditions of this Agreement.
This Agreement may not be modified, rescinded or terminated orally, and no modification,
rescission, termination or attempted waiver of any of the terms, provisions or conditions hereof
(including this subsection) shall be valid unless in writing and signed by the party against whom
the same is sought to be enforced.
(e) Section Headings. The headings of sections contained in this Agreement are
provided for convenience only. They form no part of this Agreement and shall not affect its
construction or interpretation. All references to sections or subsections refer to the corresponding
sections and subsections of this Agre ment. All words used herein shall be construed to be of
such gender or number as the circumstances require. This "Agreement" shall mean this
Agreement as a whole and as the same may, from time to time hereafter, be amended,
supplemented or modified. The words "herein," "hereby," "hereof," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Agreement as a whole and not to any
particular section, subsection, paragraph, clause or other subdivision hereof, unless otherwise
specifically noted.
(f) Time of Essence. With respect to all time periods and duties set forth in this
Agreement, time is of the essence.
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