Loading...
HomeMy WebLinkAbout183-04 RESOLUTION• OFFER AND ACCEPTANCE CONTRACT. • 1. The City of Fayetteville, Arkansas, a municipal corporation, offers to buy, subject to the terms and conditions set forth herein, the following described property: Parcel No. 765-15227-000 (Deed Book 1093 at Page 857) Part of the Northeast Quarter (NE%) of the Northwest Quarter (NW%) of Section 23, Township 16 North of Range 30 West of Fifth (5th) Principal Meridian, Washington County, Arkansas, more particularly described as follows, to -wit Beginning at.a point on the east right of way of Highway 16 by-pass which is 10.00 feet East and N 00° 25' 00" E 200.00 feet from the SW corner of said NE% of NW% of Section 23, T -16-N, R -30 -VV; thence along said right of way N 00° 25' 00" E 40 00 feet, thence leaving said right of way East 90 00 feet, thence N 00° 25' 00" E 160.00 feet, thence West 90.00 feet to the East right of way of Highway 16 by-pass, thence along said right of way N 00° 25' 00" E 538 00 feet thence N 69° 30' 00" E 114:00 feet to the intersection of the southerly right of way of Highway 16; thence along said right of way S 67° 54' 59" E 87.83 feet, thence S 70° 00' 00" E 233.00 feet, thence S 75° 31' 47" E 244.56 feet to the intersection of the West right of way of Ray Avenue, thence along said right of way S.01 ° 42' 54" W 294.69 feet, thence S 01° 00' 10" E 330.27 feet, thence leaving said right of way West 150.00 feet, thence South 179.30 feet to an existing fence line, thence along said fence line West 257.70 feet, thence leaving said fence line N 00° 25' 00" E 200.00 feet, thence West 240.00 feet to the Point of Beginning Containing 11.16 acres more or less, subject to right of way and easements of record. (Alsoknown as 1851 E. Huntsville Road, Fayetteville, Arkansas, and includes land, all buildings, and accoutrements.) NOTE The above description does not include Parcels Numbered 765-15240-000 and 765-15205-000, together amounting to 0.33± acres, which are intended to be part of this transaction. , 2. Purchase Price: Subject to the following conditions, the City of Fayetteville shall pay for the property at closing, the total and cash payment of $1,100,000.00. 3. Contingent Earnest Money Deposit: The City of. Fayetteville herewith tenders a check for $11,000.00 to Tyson Foods Inc (seller), as earnest money, which shall apply on the purchase price. This offer of purchase is contingent upon approval of the City Council of the City of Fayetteville, Arkansas, and, if they do not so approve, the earnest money deposit will be returned to the City of Fayetteville by Tyson Foods, Inc. If title requirements are not fulfilled or Tyson Foods, Inc fails to fulfill any obligations under this contract the earnest money shall be promptly refunded to the City of Fayetteville. If the City of Fayetteville fails to fulfill their obligations underthis contract or, after all conditions have been met, the City of Fayetteville fails to close this transaction, the earnest money may at the option of Tyson Foods, Inc., become liquidated damages to Tyson Foods, Inc. Conveyance will be made. to the City of Fayetteville by general Warranty Deed, except it shall be subject to recorded instruments and easements if any, which do not materially affect the value of the property. Such conveyance shall include mineral rights owned by Tyson Foods, Inc. 5. Tyson Foods Inc. shall furnish a policy of title insurance in the amount of the purchase price from a title insurance company as selected by the City of Fayetteville. Tyson Foods, Inc. shall pay for the cost of the title insurance. Tyson Foods, Inc. agrees to allow the City of Fayetteville, if the. City of Fayetteville so desires, at City of Fayetteville's expense, to survey the property. Tyson Foods, Inc. agrees to cure any title problems which may result from any differences between the recorded legal descriptions of the property and the survey description. Said title problems, if any, must be solved prior to closing to the satisfaction of the City. of Fayetteville. 7. Taxes and special assessments due on or before closing shall be paid by Tyson Foods, Inc. Insurance, general taxes, ad valorem taxes special assessments and rental payments shall be prorated as of closing. 8. The closing date shall be within ninety (90) days after approval of this offer by the City Council or January 31, 2005, whichever occurs first. If such date of closing falls on a weekend or holiday, it will be held the following working day. Possession of the property shall be delivered to the City of Fayetteville on the date of closing. • REAL ESTATE DONATION AGREEMENT THIS REAL ESTATE DONATION AGREEMENT (the "Agreement"), made and entered into this /9 day of January, 2005 by and between Tyson Foods, Inc., a Delaware corporation (hereinafter called "Tyson Foods"), and The City of Fayetteville, an Arkansas Municipal corporation (hereinafter referred to as "Fayetteville"). This Agreement shall become effective on the date of the full execution by both parties hereto ( `Effective Date"). WITNESSETH: WHEREAS, Tyson Foods is the owner of certain real property located in Washington County, Arkansas; and WHEREAS, subject to the terms and conditions set forth herein, Fayetteville desires to accept said property from Tyson Foods and Tyson Foods desires to convey said property to Fayetteville; 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. Tyson Foods hereby agrees to convey to Fayetteville, and Fayetteville hereby agrees to accept the donation from Tyson Foods, 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 Tyson Foods and Fayetteville; 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 February 28, 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." -•-- -,.-- =--x-. r - 1 • • 3. Conditions Precedent to Closing. Fayetteville represents and Tyson Foods hereby acknowledges that Fayetteville 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 Fayetteville's reasonable discretion), then Fayetteville may rescind this Agreement, provided, however, that Fayetteville has exercised such rescission right by giving Tyson Foods written notice with evidence of such condition no later than February 15, 2005. (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 Fayetteville from reasonably developing the Property for Fayetteville's intended use, then Fayetteville or Tyson Foods may rescind this Agreement; provided however, that Fayetteville or Tyson- Foods has notified the other party in writing with evidence of such unacceptable condition within fifteen (15) days after Fayetteville or Tyson Foods receives the results of such analyses, inspections, borings, or engineering studies, but not later than February 15, 2005. (c) Fayetteville 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 Fayetteville on or before February 28, 2005, or the purchase is otherwise terminated, then Tyson Foods may rescind this Agreement with there being no further obligations to Fayetteville. 4. Representations and Warranties of Tyson Foods. Tyson Foods hereby represents and warrants to Fayetteville, now and at Closing, as follows: (a) Authonty; Enforceability. No authorizations or approvals, whether of governmental bodies, creditors, or otherwise, are necessary to enable Tyson Foods 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 Tyson Foods, is a valid and legally -binding agreement of Tyson Foods, and, assuming due acceptance and execution thereof by Fayetteville, is enforceable against Tyson Foods in accordance with its terms; and 2 • (b) Title to Property. Tyson Foods 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 Tyson Foods. To the knowledge of Tyson Foods, no such condemnation, requisition or taking is threatened or contemplated. (c) Disclaimer. TYSON FOODS 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 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. (d) Advice of Attorney. Tyson Foods has been advised by its legal counsel who is primarily responsible for the drafting of this agreement. 5. Representations and Warranties of Fayetteville. Fayetteville hereby represents and warrants to Tyson Foods, now and at Closing, as follows: (a) Authority; Enforceability. This Agreement has been legally approved by the Fayetteville City Council No other authorizations or approvals, creditors, or otherwise, are necessary to enable Fayetteville 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 Fayetteville and is a valid and legally -binding agreement of Fayetteville. (b) Advice of Attorney. Fayetteville has been advised by the City Attorney concerning this Agreement. 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 3 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 of the representations, warranties and covenants of either party to this Agreement. 7. Title Insurance and other Closing Costs. Tyson Foods shall obtain at the Tyson Foods's expense either a certificate of title to, or a policy insuring fee simple title to the Real Property in favor of Fayetteville, from a Title Company/Escrow Agent of Tyson Food's choice ("Escrow Agent"). Fayetteville shall have five (5) business days following receipt of said title insurance commitment in which to notify Tyson Foods in writing of any exceptions to which Fayetteville objects, other than those set forth in Section 4(b) of this Agreement. Tyson Foods may elect, in Tyson Food's sole discretion, to cure those exceptions which can be cured by the payment of money, and Tyson Foods shall have fifteen (15) days in which to cure any remaining exceptions. In the event Tyson Foods elects not to cure all such exceptions within such fifteen (15) day period, Fayetteville may by notice in writing given to Tyson Foods within ten (10) days after such election not to cure, either waive its objections to the exceptions which Tyson Foods has elected not to cure, whereupon the parties shall proceed with the Closing in accordance herewith, or terminate this Agreement, and Tyson Foods will refund Fayetteville the Earnest Money. Fayetteville and Tyson Foods 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, Tyson Foods 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 16 of this Agreement ("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 4 • • understood and agreed that the Deed Restrictions shall be inserted by Fayetteville 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 Agreement. This section shall survive closing 9. Survey. Fayetteville, at Fayetteville'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, Fayetteville shall furnish a copy of the Survey to both Tyson Foods 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. (a) At any reasonable time prior to the closing, the City of Fayetteville at its sole cost, responsibility and risk shall be authorized to send its authorized environmental consultant, Environmental Enterprise Group, Inc. onto Tyson Foods' Property for any site analysis, test borings, and engineering studies necessary for a Phase II Environmental Study following advance notice to Tyson Foods. Fayetteville shall ensure that Environmental Enterprise Group, Inc. cooperates with Tyson Foods' environmental group while conducting environmental studies on the Property (b) The Phase II Environmental Study shall be simultaneously provided to Tyson Foods upon its completion and submission to the City of Fayetteville. 11. Hazardous Materials. Tyson Foods shall be responsible for any required removal or abatement of any Hazardous Materials (as defined below) now existing on the Property if found by the Phase II Environmental Study on the entire purchased and donated site. The City of Fayetteville will pay the cost of the Phase II Environmental Study. The City of Fayetteville shall rely upon the Phase II environmental Study and not hold Tyson Foods liable or responsible for any Hazardous Materials not discovered by the Phase II Environmental Study. For purposes of "Hazardous Materials", the City of Fayetteville agrees to accept the property "as is", and hereby waives and releases any causes of action or claims that it might have against Tyson Foods relating to the condition of the Property for matters not disclosed in the Phase II Environmental Study. The term "Hazardous Materials" means any substance (a) the presence of which requires reporting, investigations, or remediation under any current federal, state, or local 5 • 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. This section shall survive the closing or earlier termination of this Agreement. Notwithstanding anything to the contrary that may be contained in this Agreement in the event that the Phase II Environmental Study discloses the existence of any Hazardous Materials on the Property, then either Tyson Foods or Fayetteville may terminate this Agreement upon fifteen (15) days written notice to the other party after receiving such results, whereupon all deposit monies, and the out of pocket expenses incurred by Fayetteville in conducting the Phase II Environmental Study shall be refunded to Fayetteville. 12. Taxes and Assessments. Tyson Foods shall, prior to Closing, have paid all property taxes and assessments levied or extended in the future on the Property for 2004 and prior years and such taxes and assessments for 2005, 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. 14. Broker's Commission. Each of the parties hereto r p esents 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 Fayetteville pursuant hereto. 15. Termination. (a) This Agreement may be terminated at any time prior to the Closing: (1) by mutual consent of Tyson Foods and Fayetteville; or (ii) by Fayetteville pursuant to Section 7 hereof; or (iii) due to a material default by either party of the Agreement which goes uncured for ten (10) business days after notice. (b) In the event of termination of this Agreement by Tyson Foods or Fayetteville as provided above, this Agreement will forthwith become void. 16. Deed Restrictions. With respect to Deed Restrictions to be placed on the Property, Tyson Foods and Fayetteville hereby agree to the following: 6 • • (a) Fayetteville covenants that the Property shall not be used for or in support of the commercial manufacturing of food products. (b) This covenant, condition, and restriction shall remain in effect for a period of Twenty (20) years. The aforesaid covenant, condition, and restriction shall run with and bind the Property, and shall bind Fayetteville, or its successors or assigns, and shall inure to the benefit of and be enforceable by Tyson Foods, 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. Jurisdiction shall be the Washington County Circuit Court. (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 ply (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 contmuing 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. The City Council must approve any change recommended by the City of Fayetteville before it can be effective. 7 • • (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. (f) Time of Essence. With respect to all time periods and duties set forth in this Agreement, time is of the essence. (g) 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, Tyson Foods and Fayetteville have caused this Agreement to be duly executed as of the date first above written. ATTEST: CITY OF FA TEVILLE, ARKANSAS a Munic jj• 1 Corporatio SON RA SMITH City Clerk ATTEST: Title: V P.Xlvtis to /2 ?G%41eat+s */ i% fre y 8 DAN COODY Mayor TYSON FOODS, INC. a Delaware Co I ration 'Agfa mis Title: V P•Nawceo ten- ttaez 4-• My -Fs -atm C+c By: £S • EXHIBIT "A" PROPERTY DESCRIPTION ***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 to Tyson Food's land surrounding the buildmg commonly known as the old Mexican Original Processing Plant located at the southeast comer of Highway 16 and Happy Hollow Road Fayetteville, AR, all of which is situated within a portion of the following described parcel: Part of the Northeast Quarter (NE%) of the Northwest Quarter(NW%) of Section 23, Township 16 North of Range 30 West of Fifth (51) Principal Meridian, Washington County, Arkansas, more particularly described as follows, to -wit Beginning at a point on the east right of way of Highway 16 by-pass which is 10.00 feet East and North 00° 25' 00" East 200.00 feet from the SW corner of said NE% of NW' of Section 23, T -16-N, R- 30 -W; thence along said right of way N 00° 25' 00" E 738.00 feet, thence N 69° 30' 00" E 114.00 feet to the intersection of the southerly right of way of Highway 16, thence. along said right of way S 67° 54' 59" E 87.83 feet, thence S 70° 00' 00" E 233.00 feet, thence S 75° 31' 47" E 244.56 feet to the intersection of the West right of way of Ray Avenue, thence along said nght of way S 01° 42' 54" W 294.69 feet, thence S 01° 00' 10" E 330.27 feet, thence leaving said right of way West 150.00 feet, thence South 179.30 feet to an existing fence line, thence along said fence line West 257.70 feet, thence leaving said fence line N 00° 25' 00" E 200.00 feet, thence West 240.00 feet to the Point of Beginning, containing 11.50_ acres, more or less, subject to right of way and easements of record. 9 • City of Fayetteville, Arkansas Budget. Adjustment Form Budget Year 2004 Department. General Government Division: Miscellaneous Program: Miscellaneous Project or Item Requested: $4,000 is requested in the land acquisition account. Date Requested 10/5/2004 Adjustment Number Project or Item Deleted: None. Use of fund balance is proposed. Justification of this Increase: Funds will be used for the .purchase of the Tyson Complex for use as a joint public safety command center. Justification of this Decrease: There is sufficient funding remaining to comply with City policies. Increase Budget (Decrease Revenue) Account Name Account Number Amount Project Number Land acquisition 4470 9470 5805 00 4,000 .04008 1 Decrease Budget (Increase Revenue) Account Name Account Number Amount Project Number Use of fund balance 4470 0947 4999 99, 4,000 Approval Signatures Requested By Date Budget anager 2 -/7'9 Date Department Director Date Finance & Int: 1 Services rector Mayor Z7 Date .. Budget Office Use Only Type: A B C. (D) E Date of Approval Posted to General Ledger Posted to Project Accounting Entered in Category Log Initial Date Initial Date Initial Date Initial Date • REAL ESTATE PURCHASE AGREEMENT .00,w .."-opp.nor yr • THIS REAL ESTATE PURCHASE AGREEMENT (the "Agreement"), made and entered into this /9 Yti day of January, 2005 by and between Tyson Foods, Inc., a Delaware corporation (hereinafter called "Tyson Foods"), and The City of Fayetteville, an Arkansas Municipal corporation (hereinafter referred to as "Fayetteville") This Agreement shall become effective on the date of the full execution by both parties hereto (` Effective Date"). WITNESSETH: WHEREAS, Tyson Foods is the owner of certain real property located in Washington County, Arkansas; and WHEREAS, subject to the terms and conditions set forth herein, Fayetteville desires to purchase said property from Tyson Foods and Tyson Foods desires to sell said property to Fayetteville; 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 Tyson Foods hereby agrees to sell to Fayetteville, and Fayetteville hereby agrees to purchase from Tyson Foods, 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, Fayetteville agrees to pay and Tyson Foods 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 Fayetteville's receipt of a fully -executed copy of this Agreement, Fayetteville shall tender to Tyson Foods (or Tyson 1 Foods's representative), the 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 Tyson Foods and Fayetteville; 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 February 28, 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 Pnce shall be paid by Fayetteville to Tyson Foods at the Closing, and Fayetteville shall deliver to Tyson Foods cash in the fonn 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. Fayetteville represents and Tyson Foods hereby acknowledges that Fayetteville intends to use the Property for municipal purposes ("Intended Use"). Therefore the purchase 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 Fayetteville's reasonable discretion), then Fayetteville may rescind this Agreement and the Deposit will be refunded to Fayetteville, provided, however, that Fayetteville has exercised such rescission right by giving Tyson Foods written notice with evidence of such condition no later than February 15, 2005. (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 Fayetteville from reasonably developing the 2 • • Property for Fayetteville's intended use, then Fayetteville or Tyson Foods may rescind this Agreement, whereupon the Deposit will be refunded to Fayetteville; provided however, that Fayetteville or Tyson Foods has notified the other party in writing, with evidence of such unacceptable condition, within fifteen (15) days after Fayetteville or Tyson Foods receives the results of such analyses, inspections, borings, or engineering studies, but not later than February 15, 2005. (c) Fayetteville and Tyson Foods should reach a mutual agreement as to naming a defined space of the Property. Fayetteville and Tyson Foods covenant to act in good faith to reach such an agreement. If such agreement cannot be reached, then Tyson Foods may rescind this Agreement, whereupon the Deposit will be refunded to Fayetteville. 5. Representations and Warranties of Tyson Foods. Tyson Foods hereby represents and warrants to Fayetteville, now and at Closing, as follows: (a) Authority: Enforceability. No authorizations or approvals, whether of governmental bodies, creditors, or otherwise, are necessary to enable Tyson Foods 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 Tyson Foods, is a valid and legally -binding agreement of Tyson Foods, and, assuming due acceptance and execution thereof by Fayetteville, is enforceable against Tyson Foods 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. Tyson Foods 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. Tyson Foods 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 been received by Tyson Foods. To the knowledge of Tyson Foods, no such condemnation, requisition or taking is threatened or contemplated. 3 • . (c) Disclaimer. TYSON FOODS 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 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. (d) Advice of Attorney. Tyson Foods has been advised by its legal counsel who is primarily responsible for the drafting of this agreement. 6. Representations and Warranties of Fayetteville. Fayetteville hereby represents and warrants to Tyson Foods, now and at Closing, as follows: (a) Authority; Enforceability. This Agreement has been approved by the Fayetteville City Council. No other authorizations or approvals, creditors, or otherwise, are necessary to enable Fayetteville 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 Fayetteville and is a valid and legally -binding agreement of Fayetteville. (b) Advice of Attorney. Fayetteville has been advised by the City Attorney concerning this Agreement. 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 4 would indicate a breach by the other party of the representations, warranties and covenants of either party to this Agreement. 8. Title Insurance and other Closing Costs Tyson Foods shall obtain at the Tyson Foods expense either a certificate of title to, or a policy insuring fee simple title to the Real Property in favor of Fayetteville, from a Title Company/Escrow Agent of Tyson Foods choice ("Escrow Agent"). Fayetteville shall have five (5) business days following receipt of said title insurance commitment in which to notify Tyson Foods in writing of any exceptions to which Fayetteville objects, other than those set forth in Section 5(b) of this Agreement. Tyson Foods may elect, in Tyson Foods sole discretion, to cure those exceptions which can be cured by the payment of money, and Tyson Foods shall have fifteen (15) days in which to cure any remaining exceptions. In the event Tyson Foods elects not to cure all such exceptions within such fifteen (15) day period, Fayetteville may by notice in writing given to Tyson Foods within ten (10) days after such election not to cure, either waive its objections to the exceptions which Tyson Foods has elected not to cure, whereupon the parties shall proceed with the Closing in accordance herewith, or terminate this Agreement, and Tyson Foods will refund Fayetteville the Earnest Money. Fayetteville and Tyson Foods 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, Tyson Foods 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 Fayetteville 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. Survev. Fayetteville, at Fayetteville's sole responsibility and expense, shall obtain a current survey of the Property made and prepared by a registered/licensed surveyor ("Survey") 5 • . no later than thirty (30) days after full execution of this agreement. Within five (5) days after receipt, Fayetteville shall furnish a copy of the Survey to both Tyson Foods and the Title Company. The legal descriptions provided by the Survey shall be the descriptions used m the deed conveying the Property to and in the title insurance policy. 11. Right of Entry. (a) At any reasonable time prior to the closing, the City of Fayetteville at its sole cost, responsibility and risk shall be authonzed to send its authorized environmental consultant, Environmental Enterprise Group, Inc. onto Tyson Foods' Property for any site analysis, test borings, and engineering studies necessary for a Phase II Environmental Study following advance notice to Tyson Foods. Fayetteville shall ensure that Environmental Enterprise Group, Inc. cooperates with Tyson Foods' environmental group while conducting environmental studies on the Property. (b) The Phase II Environmental Study shall be simultaneously provided to Tyson Foods upon its completion and submission to the City of Fayetteville. 12. Hazardous Materials. Tyson Foods shall be responsible for any required removal or abatement of any Hazardous Materials (as defined below) now existing on the Property if found by the Phase II Environmental Study on the entire purchased and donated site. The City of Fayetteville will pay the cost of the Phase II Environmental Study. The City of Fayetteville shall rely upon the Phase II environmental Study and not hold Tyson Foods liable or responsible for any Hazardous Materials not discovered by the Phase II Environmental Study. For purposes of "Hazardous Materials", the City of Fayetteville agrees to accept the property "as is", and hereby waives and releases any causes of action or claims that it might have against Tyson Foods relating to the condition of the Property for matters not disclosed in the Phase II Environmental Study. 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 This section shall survive the closing or earlier termination of this Agreement. Notwithstanding anything to the contrary that may be contained in this Agreement, in the event that the Phase II Environmental Study discloses the existence of any Hazardous Materials on the Property, then either Tyson Foods 6 i or Fayetteville may terminate this Agreement upon fifteen (15) days written notice to the other party after receiving such results, whereupon all deposit monies, and the out of pocket expenses incurred by Fayetteville in conducting the Phase II Environmental Study shall be refunded to Fayetteville. 13. Taxes and Assessments. Tyson Foods shall, prior to Closing, have paid all property taxes and assessments levied or extended in the future on the Property for 2004 and prior years and such taxes and assessments for 2005, 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 Fayetteville pursuant hereto. 16. Termination. (a) This Agreement may be terminated at any time prior to the Closing: (i) by mutual consent of Tyson Foods and Fayetteville; or (ii) by Fayetteville pursuant to Section 8 hereof; or (iii) due to a material default by either party of the Agreement which goes uncured for ten (10) business days after notice. (b) In the event of termination of this Agreement by Tyson Foods or Fayetteville as provided above, this Agreement will forthwith become void. If terminated not due to a material default by Fayetteville, the Earnest money will be refunded to Fayetteville. 17. Deed Restrictions. With respect to Deed Restrictions to be placed on the Property, Tyson Foods and Fayetteville hereby agree to the following* (a) Fayetteville covenants that the Property shall not be used for or in support of the commercial manufacturing of food products. (b) This covenant, condition, and restriction shall remain in effect for a period of Twenty (20) years. The aforesaid covenant, condition, and restriction shall run with and bind the 7 • • Property, and shall bind Fayetteville, or its successors or assigns, and shall inure to the benefit of and be enforceable by Tyson Foods, 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) 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. Jurisdiction shall be the Washington County Circuit Court. (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. (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 mtended 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. The City Council must approve any change recommended by the City of Fayetteville before it can be effective. (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 8 • • 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. (g) 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, Tyson Foods and Fayetteville have caused this Agreement to be duly executed as of the date first above written. ATTEST: tAt A 4.-J a a SONDRA SMITH City Clerk ATTEST: CITY OF FAYETTEVILLE, ARKANSAS a Muni. • :1 Corporatio D ' OODY Mayor TYSON FOODS, INC. a Delaware Corporatio B �1 Title: OPZVC4SYo R T(/4'rio�vt 4- rfsff Set y Title: 5 V PNA-A1 c,E `tel ui.44 4-t t 4— Twin tin . 64-0 9 EXHIBIT "A" PROPERTY DESCRIPTIONS ***NOTE- (An updated legal description will be inserted here upon completion of the Survey as specified in section 10 of this Agreement)*** It is the intent of this Agreement to convey title only to 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, and the land directly beneath it, but not adjacent to it, which is situated within a portion of the following described parcel: Parcel No. 765-15227-000 (Deed Book 1093 at Page 557) Part of the Northeast Quarter (NE%) of the Northwest Quarter (NW%) of Section 231 Township 16 North of Range 30 West of Fifth (5°i) Principal Meridian, Washington County, Arkansas, more particularly described as follows, to -wit Beginning at a pant on the east right of way of Highway 16 by-pass which is 10.00 feet East and N 00" 25' 00` E 200.00 feet from the SW corner of said NE% of NW'4 of Section 23, T -16-N. R -30-W: thence along said right of way N 00° 25' 00" E 40.00 feet, thence leaving said right of way East 90 00 feet, thence N 00" 25' 00' E 160.00 feet, thence West 90.00 feel to the East right of way of Highway 16 by-pass, thence along said right of way N 00° 25' 00" E 538.00 feet, thence N 69' 30' 00' E 114.00 feet to the intersection of the southerly right of way of Highway 16, thence along said right of way S 67° 54' 59" E 87.83 feet. thence S 70" 00' 00' E 233.00 feet, thence S 75. 31' 47" E 244.56 feet to the intersection of the West right of way of Ray Avenue, thence along said right of way S 01` 42' 54" W 294.69 feet. thence S 01" 00' 10' E 330.27 feet. thence leaving said right of way West 150.00 feet, thence South 179.30 feet to an existing fence line, thence along said fence line West 257.70 feet, thence leaving said fence line N 00' 25' 00" E 200.00 feet, thence West 240.00 feet to the Point of Beginning. Containing 11.16 acres, more or less, subject to right of way and easements of record. (Also known as 1851 E. Huntsville Road, Fayetteville. Arkansas, and includes land, all buildings, and accoutrements .) NOTE: The above description does est include Parcels Numbered 765-15204-000 and 765-15205-000, together amounting to 0.33* acres, which are intended 10 be part of this transaction. 10 • • OFFER AND ACCEPTANCE CONTRACT 1 The City of Fayetteville, Arkansas, a municipal corporation, offers to buy, subject to the terms and conditions set forth herein, the following described property: Parcel No. 765-15227-000 (Deed Book 1093 at Page 857) Part of the Northeast Quarter (NE%) of the Northwest Quarter (NW%) of Section 23, Township 16 North of. Range 30 West of Fifth (5th) Principal Meridian, Washington County, Arkansas, more particularly described as follows, to -wit: Beginning at a point on the east right of way of Highway 16 by-pass which is 10.00 feet East and N 00° 25' 00" E 200.00 feet from the SW corner of said NE% of NW% of Section 23, T -16-N, R -30-W; thence along said right of way N 00° 25' 00" E 40.00 feet, thence leaving said right of way East 90.00 feet, thence N 00° 25' 00" E 160.00 feet, thence West 90.00 feet to the East right of way of Highway 16 by-pass, thence along said right of way N 00° 25' 00" E 538 00 feet, thence N 69° 30' 00" E 114.00 feet to the intersection of the southerly right of way of Highway 16, thence along said right of way S 67° 54' 59" E 87.83 feet, thence S 70° 00' 00' E 233.00 feet, thence S 75° 31 47" E 244.56 feet to the intersection of the West right of way of Ray Avenue, thence along said right of way S 01° 42' 54' W 294.69 feet, thence S 01° 00' 10" E 330.27 feet, thence leaving said right of way West 150.00 feet, thence South 179.30 feet to an existing fence line, thence along said fence line West 257.70 feet, thence leaving said fence line N 00° 25' 00" E 200.00 feet, thence West 240.00 feet to the Point of Beginning, Containing 11.16 acres more or less, subject to right of way and easements of record. (Also known as 1851 E. Huntsville Road, Fayetteville, Arkansas, and includes land, all buildings, and accoutrements.) NOTE The above description does not include Parcels Numbered 765-15204-000 and 765-15205-000, together amounting to 0.33± acres, which are intended to be part of this transaction. • 2. Purchase Price: Subject to the following conditions, the City of Fayetteville shall pay for the property at closing, the total and cash payment of $1,100,000.00. 3. Contingent Earnest Money Deposit: The City of Fayetteville herewith tenders a check for $11,000.00 to Tyson Foods, Inc (seller), as earnest money, which shall apply on the purchase price. This offer of purchase is contingent upon approval of the City Council of the City of Fayetteville, Arkansas, and, if they do not so approve, the earnest money deposit will be returned to the City of Fayetteville by Tyson Foods, Inc. If title requirements are not fulfilled or Tyson Foods, Inc fails to fulfill any obligations under this contract, the earnest money shall be promptly refunded to the City of Fayetteville. If the City of Fayetteville fails to fulfill their obligations under this contract or, after all conditions have been met, the City of Fayetteville fails to close this transaction, the earnest money may, at the option of Tyson Foods, Inc., become liquidated damages to Tyson Foods, Inc. 4. Conveyance will be made to the City of Fayetteville by general Warranty Deed, except it shall be subject to recorded instruments and easements if any which do not materially affect the value of the property. Such conveyance shall include mineral rights owned by Tyson Foods, Inc. 5. Tyson Foods Inc. shall furnish a policy of title insurance in the amount of the purchase price from a title insurance company as selected by the City of Fayetteville. Tyson Foods, Inc. shall pay for the cost of the title insurance. 6. Tyson Foods, Inc. agrees to allow the City of Fayetteville, if the City of Fayetteville so desires, at City of Fayetteville's expense, to survey the property. Tyson Foods, Inc. agrees to cure any title problems which may result from any differences between the recorded legal descriptions of the property and the survey description Said title problems, if any, must be solved prior to closing to the satisfaction of the City of Fayetteville. 7. Taxes and special assessments due on or before closing shall be paid by Tyson Foods, Inc. Insurance, general taxes, ad valorem taxes, special assessments and rental payments shall be prorated as of closing. 8. The closing date shall be within ninety (90) days after approval of this offer by the City Council or January 31, 2005, whichever occurs first. If such date of closing falls on a weekend or holiday, it will be held the following working day. 9. Possession of the property shall be delivered to the City of Fayetteville on the date of closing. OFFER AND ACCEPTANCE CONTRACT Page 2 of 4 10. Tyson Foods, Inc. hereby grants permission. for the City of Fayetteville or its employees or designates to enter the above described property and improvements for the purpose of inspection and/or surveying. 11. All fixtures, improvements and attached equipment are included in the purchase price. 12. Risk of loss or damage to the property by fire or other casualty occurring up to the time of closing is assumed by Tyson Foods, Inc. 13. Tyson Foods, Inc. shall rectify and remedy any conditions arising from the presence of asbestos and/or underground fuel storage tanks. Tyson Foods, Inc. shall pay all costs of any testing for existence of and all costs for removal of said asbestos and underground fuel storage tanks. Determination of the conditions must be complete prior to closing. 14. Tyson Foods, Inc. shall disclose to the City of Fayetteville any and all environmental hazards of which Tyson Foods, Inc. has actual knowledge. Upon acceptance of all conditions and terms of this Offer and Acceptance, the City of Fayetteville and Tyson Foods, Inc. shall share equally the costs of any and all testing for the existence of environmental hazards. Should the existence of environmental hazards be known or determined, Tyson Foods, Inc shall cure such, at their expense; or, in the alternative, at the City of Fayetteville's discretion, the City of Fayetteville may cure such environmental hazard, and Tyson Foods, Inc. shall indemnify the City of Fayetteville for all costs associated with said cure. 15. The City of Fayetteville will name a mutually defined space after Tyson Foods, Inc. 16. This agreement shall be governed by the laws of the State of Arkansas. • 17. This agreement, when executed by both the City of Fayetteville and Tyson Foods, Inc. shall contain the entire understanding and agreement of the parties with respect to the matters referred to herein and shall supersede all price or contemporaneous agreements, representations and understanding with respect to such matters, and no oral representations or statements shall be considered a part hereof 18. This contract expires, if not accepted by Tyson Foods, Inc. onor before the 1st day of October, 2004. 19. The City of Fayetteville shall submit this fully executed Offer and Acceptance Contract to the City Council for their approval within sixty (60) days of acceptance by Tyson Foods, Inc. 20.: NOTICE: THE CITY OF FAYETTEVILLE ASSERTS AND TYSON FOODS, INC. HEREBY ACKNOWLEDGES THAT THIS OFFER IS EXPRESSLY CONTINGENT UPON THE APPROVAL OF THIS OFFER OF PURCHASE BY THE CITY COUNCIL OF FAYETTEVILLE AND THAT THE FAILURE OF THE COUNCIL TO SO APPROVE WILL MAKE ALL PORTIONS OF THIS OFFER NULL AND VOID, INCLUDING, BUT .NOT LIMITED TO, THE RETURN TO CITY OF FAYETTEVILLE OF THE $11,000.00 EARNEST MONEY DEPOSIT. OFFER AND ACCEPTANCE CONTRACT Page 3 of 4 TYSON FOODS, INC. [Please print or type Name and Title] [Please print or type Name and Title] Agent or Witness: CITY OF FAYETTEVILLE, ARKANSAS, A MUNICIPAL CORPORATION Dan"Coody, Mayor w Sondra Smith, City Clerk Date: Date: Date: Date: Date: I /IC%tt OFFER AND ACCEPTANCE CONTRACT Page 4 of 4 STATE OF ARKANSAS COUNTY OF WASHINGTON ACKNOWLEDGMENT ss. BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State personally appeared and to me well known as the person(s) who executed the foregoing document, and who stated and acknowledged that he/she/they is/are and , respectively, of Tyson 'Foods, Inc. and is/are duly authorized to execute the foregoing instrument for and in the name and behalf of said Tyson Foods, Inc., and further stated and acknowledged that he/she/they had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and set forth. • WITNESS my hand and seal on this.. day of , 2004. Notary Public MY COMMISSION EXPIRES: ACKNOWLEDGMENT STATE OF ARKANSAS. ss. COUNTY OF WASHINGTON BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within and for said County and State, personally appeared Dan Coody and Sondra Smith, to me well known as the persons who. executed the foregoing document, and who stated and acknowledged that they are the Mayor and City Clerk of the City of Fayetteville, Arkansas, a municipal corporation, and are duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of said municipal corporation, and further stated and acknowledged that they had so signed, executed and delivered said instrument for the consideration, uses and purposes. therein mentioned and set forth. WITNESS my hand and seal on this 1 0- day of MY COMMISSION EXPIRES: (0-aa-02-ol-{ 2 , 2004. Notary Publi Happy Hollow Rd. O 00 M East ROW Line w 0 0 O z Pt. NE -NW -23-16-30 Tyson Property (Bk 1093 At page 857) Parcel No. 765-15227-000 11.167 Acres N90°OW 90.0 O O 90.00 8 O s90°OE O z n90°OW N00°25'00"E 240.00 SA comer NE -NW -23-16-30 O O N w N 0 O O z N90°Ows 0 00 257.70 ter vt 43 N N90°0vi O fel 150 Title: Tyson Foods Property: Huntsville Rd. and Happy Hollow Rd. Date: 07-06-2004 Scale: 1 mch = 130 feet File: FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE /2-li:S /DI, ; -ee.e a n COW& it 7y 6o /V City Council Meeting — October 5, 2004 • TO: Fayetteville City Council THROUGH: Dan Coody, Mayor Hugh Earnest, Chief Administrative Officer FROM: DATE Subject: Stephen Davis, Finance & Internal Services Directo September 10, 2004 1851 East Huntsville Road (Justice Center, Public Safety Complex and Fire Station 3) Summary Staff requests City Council approval of an offer and acceptance document with Tyson Company for property located at 1851 East Huntsville Road. The property is to be used for a Justice Center consisting of facilities for District Court and City Prosecutor; a Public Safety Complex consisting of new facilities (renovations to the existing building) for the Police Department including Central Dispatch, Fire Administration, Fire Training, Fire Prevention and Fire Station 3. Next Steps After the purchase of the facility is completed several actions will be initiated: 1. Improvements to the intersection of Happy Hollow and Huntsville Road will proceed to the bidding process. 2. A professional selection committee will be assembled to review the statement of qualifications for architectural services from architectural firms with experience in justice centers and public safety complexes. 3. The funding program for the construction activities planned for 2005 (exterior renovations for the entire building and construction of Fire Station 3). Budget Impact The purchase of the building is funded with the exception of closing cost and the appraisal cost of $4 000. Closing cost is expected to be less than $10,000. The first phase of the renovation expenditures will be incorporated in 2005 budget funded with proceeds from an Amendment 78 Bond Issue utilizing a portion of the county sales tax for debt service. J:WacilitiesUustice Center\Agenda Memo Approval of Offer and Acceptance for 1851 East Huntsville_Oct 5 Council meeting.doc r • 1Utd * //pm< demis- e, io/s/ y • RESOLUTION NO. A RESOLUTION APPROVING AN OFFER AND ACCEPTANCE CONTRACT BETWEEN THE CITY OF FAYETTEVILLE AND TYSON FOODS, INC. FOR THE PURCHASE OF PROPERTY LOCATED AT 1851 EAST HUNTSVILLE• ROAD IN THE AMOUNT OF $1,100,000.00; AND APPROVING A BUDGET ADJUSTMENT IN THE AMOUNT OF 54,000.00 TO COVER APPRAISAL AND CLOSING COSTS. 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 approves an Offer and Acceptance contract . between the City of Fayetteville and Tyson Foods, Inc. for the purchase of property located at 1851 East Huntsville Road in the amount of $1,100,000.00. A copy of the contract marked Exhibit "A" is attached hereto and made a part hereof. Section 2. That the City Council of the City of Fayetteville, Arkansas hereby approves a Budget Adjustment in the amount of $4,000.00 to cover appraisal and closing costs. PASSED AND APPROVED this 5thday of October 2004. APPROVED: DAN_COODY, Mayor ATTEST: Bv: SONDRA SMITH, City Clerk • • 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 Buv. 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 Real Estate Contract—Fayetteville, AR • • 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 purchase 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 Real Estate Contract—Fayetteville, AR 2