12573I RESOLUTION NO. 12,573
2
3 A RESOLUTION TO AUTHORIZE THE CITY MANAGER TO ENTER INTO A REAL
4 PROPERTY PURCHASE AGREEMENT WITH THE ROSEDALE OPTIMIST CLUB FOR
5 THE PURCHASE OF CERTAIN PROPERTY FOR THE AMOUNT OF $1.00; AND
6 FOR OTHER PURPOSES.
7
8 WHEREAS, the Rosedale Optimist Club is the owner of certain real property located at 8616
9 Colonel Glenn Road consisting of approximately 17 acres, which includes a clubhouse, ball fields and
10 other outbuildings, and
11 WHEREAS, the City currently teases most of the Rosedale Optimist Club property from the
12 Rosedale Optimist Club for use as ball fields to further its Little Rock Parks Ft Recreation programs, and
13 WHEREAS, the Rosedale Optimist Club is now desirous of selling such property to the City for
14 $1.00 under certain terms and conditions, including provision of space for the club if a new community
15 building is constructed on the property, and
16 WHEREAS, it is in the best interests of the citizens of the City of Little Rock to have ownership
17 of this additional park [and, which will provide an excellent location for a new community center.
18 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE
19 ROCK, ARKANSAS:
20 Section 1. The Board of Directors hereby authorizes the City Manager to enter into a real
21 property purchase agreement with the Rosedale Optimist Club to purchase the club's property at 8616
22 Colonel Glenn Road, in the amount of $1.00. The City Manager is authorized to execute the real
23 property purchase agreement in a form acceptable to the City Attorney.
24 Section 2. Severability. In the event any title, section, paragraph, item, sentence, clause,
25 phrase, or word of this resolution is declared or adjudged to be invalid or unconstitutional, such
26 declaration or adjudication shall not affect the remaining portions of the resolution, which shall remain
27 in full force and effect as if the portion so declared or adjudged invalid or unconstitutional were not
28 originally a part of the resolution.
29 Section 3. Repealer. All ordinances, resolutions, bylaws, and other matters inconsistent with
30 this resolution are hereby repeated to the extent of such inconsistency.
31 ADOPTED: September 18, 2007
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Resolution to authorize the
purchase of Rosedale Optimist Club property
I ATTEST:
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4 Nat ki S. Blocker, Assistant City Clerk
5 For Nancy Wood, City Clerk
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7 APPROVED AS TO LEGAL FORM:
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10 Thomas M. Carpenter, City At ne
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Resolution to authorize the
purchase of Rosedale Optimist Club property
APPROVED:
//' /"a
Mark Sto ola, Mayor
[PAGE 2 OF 2]
REAL PROPERTY PURCHASE AGREEMENT
FOR
REAL PROPERTY
LOCATED IN
LITTLE ROCK, ARKANSAS
OWNED BY
ROSEDALE OPTIMIST CLUB, INC.
AND BEING SOLD TO
THE CITY OF LITTLE ROCK, ARKANSAS,
AN ARKANSAS MUNICIPAL CORPORATION OF THE FIRST CLASS
OR ITS ASSIGNS
Dated as of 92007
TABLE OF CONTENTS
Paragraph
1. Purchase and Sale
2. Purchase Price
3. Payment of Purchase Price
A. Earnest Money Deposit
B. Closing Payment
C. Seller's Payment of Existing Indebtedness
D. Liquidated Damages; Disposition of Deposit
4. Title
A.
Title Commitment
B.
Survey
C.
Review of Commitment and Survey
D.
Title Contingency
5. Due Diligence
A.
Inspection of the Property
B.
Inspection of Records
6. Existing Encumbrances
7. Closing
A.
Escrow
B.
Conditions to Closing; Delivery to Parties
C.
Closing Costs
D.
Proration
8. Maintenance / Repairs /Destruction/Condemnation of Property
A. Maintenance of Property
B. Major Damage
9. Representations and Warranties: Certain Covenants
A. Representations and Warranties of Seller
B. Representations and Warranties of Buyer
C. Certain Interim Covenants of Seller
D. Hazardous Substances
10. Indemnification Obligations
A. Indemnification by Seller
B. Legal Protection by Buyer
11. Default and Termination Rights.
A. Default by Seller, Failure of Conditions Precedent
B. Default by Buyer
C. Remedies for Breach of Covenants that Survive Closing
D. Limitation of Liability
12. Conditions to Closing
A. Seller's Conditions to Closing
B. Buyer's Conditions to Closing
13. Miscellaneous
A.
Brokerage Issues
B.
Limitation of Liability of Buyer
C.
Limitation of Liability of Seller
D.
Successors and Assigns
E.
Notices
F.
Legal Costs
G.
Further Instruments
H.
Matters of Construction
I.
Press Releases
J.
Counterparts
K.
Restricted Use Termination Notices
Exhibits:
A. Legal Description of the Real Property
B. Due Diligence Documents
C. Lease
REAL PROPERTY PURCHASE AGREEMENT
THIS AGREEMENT ( "Agreement ") is entered into to be effective as of
2007 (the "Effective Date "), by and among Rosedale Optimist Club, a
not - for - profit corporation, and its designees and assigns ( "Seller "), and the City of Little
Rock, Arkansas, a municipal corporation of the first class duly organized under the laws of the
State of Arkansas, and its designees and assigns ( "Buyer "). BUYER shall have the right to
assign this Agreement.
RECITALS
WHEREAS, Seller is the owner of certain real property located at the Rosedale Optimist
Club and Park, Little Rock, Arkansas, the "Property" (as defined below); and
WHEREAS, Buyer desires to purchase, and Seller is willing to sell, the Property, on the
terms and conditions documented in this Agreement.
NOW, THEREFORE, in consideration of the respective promises contained in this
Agreement, Buyer and Seller agree as follows:
1. Purchase and Sale. Subject to the terms and conditions of this Agreement, Seller shall
sell to Buyer, and Buyer shall purchase from Seller, the following (collectively, the "Prop-
erty"):
A. That real property situated in Little Rock, Pulaski County, Arkansas, as more
particularly described in Exhibit "A ", including all ball fields, concession stands, and
buildings, together with, all and singular, the tenements, hereditaments, easements,
rights -of -way and appurtenances belonging or in anywise appertaining to the same (the
"Property ");
B. All improvements, structures and fixtures located upon the Land (the "Im-
provements") now or on the "Closing Date" (as defined below); and
C. A set of keys to the Property. All other tangible personal property, if any, now
or on the Closing Date located on or about the Land or Improvements or attached or
appurtenant thereto or used in connection with the operation thereof shall remain the
property of the Seller and Buyer shall have no obligations or responsibilities regarding
such personal property of Seller. Buyer shall allow such personal property to remain
on the premises during such time as Seller is located in the Rosedale Optimist Club
building.
1
2. Purchase Price. The purchase price of the Property shall be One Dollar ($1.00), as ad-
justed by the proration and credits specified in this Agreement (the "Purchase Price"). In ad-
dition to the payment of this purchase price, the Buyer agrees as follows:
A. Use of Rosedale Optimist Club Building Pending City Construction. The par-
ties acknowledge that it is the intention of the Buyer to construct a community center
("Center") on the Property at some point in the future and to initiate construction
within 5 years. Until this construction has been completed, Seller shall be permitted the
exclusive use of the Rosedale Optimist Club building ( "Club Building ") and the storage
building on the Property until, new provisions for meeting by the Seller, and groups
supported by the Seller, can be accommodated in the completed Center. During the
time that the Seller is located in the Club Building, Seller shall have the sole and exclu-
sive authority to determine and to calendar the use of the building. The Seller shall be
responsible for the cleaning and maintenance of the inside of the Club Building. The
Buyer shall be responsible for the maintenance of the yard surrounding the Club Build-
ing and for the entire Property upon completion of the Center. Seller will continue to
pay any dumpster or dumpster services charge for the Club Building and shall pay for
any pest control services, except for termite control, within or immediately surrounding
the Club Building that Seller desires while the Club continues to operate out of the
Club Building. Buyer shall provide or pay for pest control and dumpster service needed
for the Center after its construction.
B. Tower Revenue. So long as the Seller shall remain in operation as an Optimist
Club located on the property, then any cell tower revenue collected by Seller prior to
the execution of this Agreement for the cell tower in existence on the Property as of the
date of this Agreement, together with any increase in revenue for such tower, shall
continue to be collected by the Seller; for purposes of this subsection (B), "located on
the property," means the right to be located on this property pursuant to this Agree-
ment, and further, to include any temporary relocation which, though not anticipated,
may become necessary as a result of the Buyer's construction of the Center. Other than
for temporary relocation, if in the future, Seller is no longer in operation as an Opti-
mist Club located on the property, then the Buyer shall be entitled to collect the cell
tower revenue previously collected by the Seller.
C. Semi - Exclusive Use of Space in the Center by the Seller. Once the Center has
been completed, Buyer agrees to provide the following space at the Center to the
Seller:
(1) A meeting room ( "Meeting Space ") that is approximately 50' by 30' feet
which shall be configured with suggestions by the Seller during construction, and
which will contain an outside entrance that will be available solely to Seller unless,
and until, such entry is necessary for legitimate emergency services purposes, or by
staff of the Center pursuant to a mutually acceptable access agreement; and
(2) A kitchenette facility ( "Kitchenette ") that is approximately 10' long and,
minus for space for rest room facilities ( "Rest Room "), 30' wide, and located away
from the entrance adjacent to the Meeting Space; and
(a) The Kitchenette shall contain sufficient electrical and plumbing out-
lets to permit the placement of refrigerator and /or freezer facilities, oven
and /or microwave facilities, and /or sink or dish washer facilities, and
2
(b) Sufficient space for a reasonably sized pantry to meet the Seller's
needs.
(3) If rest room facilities are located on the sides of the Kitchenette, the abil-
ity to lock the entrances to the Rest Room during times the Seller is not present so
that access to the Kitchenette or Meeting Space does not occur without the Seller's
express written approval; and
(4) Space adjoining the outside of the Center and the Meeting Space to place
a storage facility for gear and materials utilized by groups sponsored by the Seller
such as, but not limited to, programs of the Boy Scouts of America, and programs
of the Girl Scouts of the U.S.A. so long as these local groups or programs, in exis-
tence on the date of execution of this Agreement, remain active and in existence.
D. TEMPORARY RELOCATION. If it becomes necessary for Seller to temporar-
ily relocate during construction of the Center, Buyer shall determine and provide mutu-
ally agreeable meeting space for Seller at Buyer's sole cost and expense, to include any
cost of utilities.
E. SIGNAGE. On completion of the Center, Seller shall have the right to place ap-
propriate signage, after consultation with Buyer, in the space inside the Center reserved
for Seller and outside, so long as Seller maintains an existent Optimist Club.
F. PARKING. Buyer shall provide twenty -two (22) parking places, including but
not limited to an appropriate number of handicapped parking spaces, in the Center
parking lot and close to the entrance to the Seller's reserved space in the Center, so
long as Seiler maintains an existent Optimist Club, or so long as groups or programs
sponsored by Seller on the date of execution of this Agreement remain active and in ex-
istence.
3. Payment of Purchase Price. The Purchase Price shall be paid to Seller by Buyer as
follows:
A. Closing Payment. On the Closing Date (as hereinafter defined), Buyer shall
pay Seller the Purchase Price, as adjusted by the prorations and credits specified in this
Agreement, on or before December 3, 2007 (the "Closing Date "). The amount to be
paid under this Paragraph 3A is referred to in this Agreement as the "Closing Pay-
ment"; and
B. Seller's Payment of Existing Indebtedness. Seller shall convey to Buyer title to
the Property free and clear of the mortgages, deeds of trust and assignments of leases
and rents, judgment liens or similar instruments or liens (the "Existing Encum-
brances") recorded against the Property which secure any promissory notes or other
indebtedness made by Seller or which are Seller's obligation (the "Existing Indebted-
ness").
4. Title. Buyer's obligations hereunder are subject to Buyer's review and approval of the
condition of title to the Property as set forth hereinafter.
A. Title Commitment. Within thirty (30) days following the Effective Date, Buyer
shall obtain, at Buyer's sole cost and expense, (i) a title commitment issued by the Title
Company (the "Commitment") bearing a current effective date and covering the Prop-
erty, binding the Title Company to issue its Title Policy, in the amount of the Purchase
Price or such amount as the Buyer desires and is acceptable to Title Company, in favor
of Buyer, showing title to be held currently by Seller in a good, indefeasible and insur-
able condition, and (ii) legible copies of all documents (the "Title Documents ") identi-
fied in the Title Commitment as exceptions to title, certified as true and complete by
the Title Company. Within such thirty (30) day period, Seller or Title Company shall
furnish to Buyer reports regarding Seller and the Property (collectively, the "Re-
ports"), relating to judgment, Uniform Commercial Code, and Federal and State tax
lien searches of records of both the county and state in which the Property is located.
Buyer shall pay the premium and costs related to said Owners Policy of Title Insur-
ance, and pay any additional costs associated with any lender's or mortgagee's title pol-
icy or endorsements requested by Buyer.
B. Survey. Within thirty (30) days following the Effective Date, Buyer may con-
duct, at Buyer's sole cost and expense, an "as- built" survey of the Land and the Im-
provements (the "Survey ") prepared by a surveyor duly licensed in Arkansas (the
"Surveyor "). The Survey shall include (i) all existing buildings, improvements, park-
ing areas, number of parking spaces, fences, encumbrances, encroachments, conflicts,
party walls, protrusions (including the location of all highways, streets, roads, alleys,
and rights -of -way upon, under, across, abutting or adjacent to the Land, or affecting
the Land or the Improvements), and any visible evidence of all water, sewer, gas, tele-
phone, cable, electric and other utility lines, (ii) the exact area of the Land (iii) ll
building set backs and other restriction lines iv ( )
{�) property corners and boundary lines
of the Property (including the courses and distances of each of said boundary lines), (v)
the relation of the point of beginning of the description of the Land to the monument
from which it is fixed, (vi) recorded or otherwise known easements (stating the re-
cording book and page references in the case of any such recorded easements), (vii) a
notation of any discrepancies between the Survey and the recorded legal description,
and (viii) such other information as the Title Company may require in order to remove
the survey exception from the Title Policy as provided below. The survey shall have a
certification (the "Surveyor Certificate ") signed and stamped by the Surveyor dated
within thirty (30) days of the Effective Date and the survey or certification will show,
among other things, that (i) the Survey was made on the ground of the Land, (ii) no
part of the Land lies within a flood plain or any area designated as having special flood
hazards by any official of any federal, state or local government or any instrumentality
thereof (iii) there are no improvements, visible easements, encroachments, conflicts or
protrusions except as shown on the Survey, and (iv) such other matters as Buyer may
require. Without limiting the foregoing, such Survey and certification shall be in a
form sufficient to cause the Title Company to delete any standard survey exception.
Thereafter, Buyer may request such additional certifications and information from
the Surveyor who performed the most recent Survey delivered by Seller to Buyer, in-
cluding but not limited to, a full ALTA/ACSM form, if not already present, as Title
Company may reasonably require.
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C. Review of Commitment and Survey: Title Review Period.
(1) As used herein, the term "Title Review Period" shall mean a period
commencing on the first day following receipt by Buyer of the last of the Com-
mitment, the Reports, the Title Documents and the Survey, and ending fifteen
(15) days thereafter. Prior to the expiration of the Title Review Period, Buyer
shall notify Seller in writing (the "Title Objection Notice ") of any matters iden-
tified in the Commitment and the Title Documents or shown on the Survey or in
the Reports that Buyer is unwilling to accept ( "Title Objections "). The state of
the title of the Property shall be deemed acceptable to the Buyer unless the Title
Objection Notice is sent to the Seller prior to the expiration of the Title Review
Period. In the event Buyer timely sends the Title Objection Notice to Seller,
Buyer shall have the right in its sole and absolute discretion to terminate this
Agreement, in which case neither party shall have any further rights or obliga-
tions hereunder other than the obligations which expressly survive the termina-
tion hereof. Seller may offer to, but shall not be obligated to, cure any Title Ob-
jection.
(2) If any of the Title Objections consist of delinquent taxes, delinquent as-
sessments, mortgages, deeds of trust, security agreements, construction or me-
chanics' liens, tax liens, judgment liens or other liens or charges in a fixed sum
or capable of computation as a fixed sum (any such objection is referred to
herein as a "Monetary Title Objection "), then, to that extent, notwithstanding
anything to the contrary in clause (1) above, Seller shall be obligated to pay and
discharge or otherwise cause to be released as a lien on the Property any such
Monetary Title Objection on or prior to the Closing Date (but Buyer's obliga-
tion to close shall be subject to the satisfaction of the conditions set forth in
Paragraph 4D) .
(3) Seller shall not be obligated to incur any expenses to cure any Title Ob-
jections (except Monetary Title Objections to the extent provided in clause (2)
above, but not otherwise) unless Seller expressly undertakes in writing to do so.
Seller shall notify Buyer in writing ( "Seller's Notice "), within ten (10) days fol-
lowing receipt of the Title Objection Notice. If Seller notifies Buyer in writing
within such ten (10) day period that Seller intends to cure such Title Objections,
Seller shall correct such Title Objections on or before the Closing Date to the
satisfaction of Buyer in Buyer's sole discretion (but Buyer's obligation to close
shall be subject to the satisfaction of the conditions set forth in Paragraph 4D).
If Seller does not notify Buyer within such ten (10) day period of Seller's
agreement to cure such Title Objections, Seller shall be deemed to have elected
not to cure such Title Objections.
(4) In the event Seller notifies Buyer that Seller is unable or unwilling to
cure any Title Objection or in the event Seller is deemed to have elected not to
cure such Title Objections, Buyer may at its option (i) negotiate an abatement in
the Purchase Price, (ii) waive the Title Objections in question without any
abatement in the Purchase Price, or (iii) terminate this Agreement. The forego-
ing election shall be made by Buyer in writing within ten (10) days following
the date on which Seller's Notice is given or the date such notice was scheduled
to have been given. In the event the Agreement is terminated pursuant to this
clause (4), Buyer shall be entitled to have the Deposit returned to it immediately
upon request and neither parry shall have any further rights or obligations here-
under other than the obligations which expressly survive the termination of this
Agreement.
(5) As used in this Agreement, the term "Permitted Exceptions" shall mean
(a) all matters either shown on the Survey or listed in the Commitment or the
Reports to which Buyer does not raise a Title Objection within the Title Review
Period or, having objected, waives in accordance with the provisions of Para-
graph 4C(4) hereof; (b) the standard "Exclusions from Coverage" contained in
the Title Policy; and (c) ad valorem taxes and assessments for the calendar year
in which the Closing occurs and subsequent calendar years, not yet due and
payable.
(6) Notwithstanding the foregoing, Buyer shall not be required to take title
to the Property subject to any matters which may arise subsequent to the Effec-
tive Date of the Commitment (as verified at the Closing Date), Reports and
Survey examined by Buyer during the Title Review Period.
(7) In the event of termination of this Agreement pursuant to this Paragraph
4C, the Deposit shall be promptly returned to Buyer and the parties hereto shall
be released from all further obligations hereunder except those which expressly
survive a termination of this Agreement.
D. Title Contingency. In addition to other conditions precedent hereunder, condi-
tions precedent to Buyer's obligation to purchase the Property shall be (a) the Surveyor
shall have certified the Survey to Buyer, any mortgagee /lender designated by Buyer,
and Title Company, and (b) the willingness of Title Company to issue to Buyer on the
Closing Date an ALTA extended coverage owner's title insurance policy ( "Owner's
Policy "), or equivalent form acceptable to Buyer, in the face amount of the Purchase
Price or such amount determined by the Buyer and acceptable to the Title Company
and dated as of the Closing Date, indicating title to the Property to be vested of record
in Buyer, subject solely to the Permitted Exceptions, and having such endorsements
thereto as may be required by Buyer on or before Closing.
5. Due Diligence. Buyer's obligations hereunder are conditional upon (a) Buyer's inspec-
tion and acceptance of the physical condition of the Property; and (b) Buyer's review and ap-
proval of the Due Diligence Documents (as defined in Paragraph 13H(14) hereof) during the
Due Diligence Period (as defined in Paragraph 13H(14) hereof). During the Due Diligence
Period, Buyer, Buyer's agents, contractors, subcontractors, employees and its counsel shall
have the right to perform due diligence on the Property pursuant to the terms of this Section as
follows:
A. Inspection of the Property. Buyer and Buyer's agents, attorneys, contractors,
subcontractors and employees, shall have the right during the Physical Inspection Pe-
riod (as defined in Paragraph 13H(14)), in the event this Agreement is not terminated
prior to then, to enter upon the Property and to perform, at Buyer's expense, such eco-
nomic, surveying, engineering, topographic, environmental, marketing, and other rea-
sonable tests, studies and investigations as Buyer may deem appropriate (including,
without limitation, investigations with regard to zoning, building codes and other gov-
ernmental regulations, architectural inspections, engineering tests, economic feasibility
studies, soils, seismic and geologic reports and environmental testing) with respect to
the Property as Buyer may elect to make or maintain. Furthermore, as a part of
Buyer's inspections, Buyer shall be entitled to cause such engineering and environ-
mental inspections to be conducted at the Property as Buyer may desire, including,
without limitation, inspections or studies which may require the drilling of holes in
parking lots or non - structural components of the Improvements, the removal of small
amounts of soil, paint or other building components, and the conducting of air tests as
Buyer may require. Buyer shall determine in its sole discretion prior to or at the end of
the Physical Inspection Period whether it finds the physical condition of the Property to
be acceptable. Should the Buyer find the condition of the Property to be unacceptable
during the Physical Inspection Period, Buyer may terminate this Agreement by written
notice to Seller, in which event the parties shall have no further liability or obligation
hereunder other than the obligations which expressly survive the termination hereof.
After its physical inspections are completed, Buyer shall promptly restore the Property
to its condition immediately prior to Buyer's inspections.
B. Inspection of Records. During the Due Diligence Period, Seller shall provide
reasonable access to Buyer, its agents, auditors, engineers, attorneys and other desig-
nees, for inspection and copying, all Due Diligence Documents in Seller's possession,
custody or control together with all other files and documents maintained by Seller in
connection with the ownership and operation of the Property. Within thirty (30) days
from the Effective Date, Seller shall furnish to Buyer's counsel, true, correct, complete
and legible copies of those Due Diligence Documents set forth on Exhibit "B" hereto.
(1) Notice of On -site Inspections. Buyer understands and agrees that any
on -site inspections of the Property shall be conducted upon at least forty -eight
(48) hours' prior oral or written notice (which notice may be given via tele-
phone, facsimile, e-mail or any other commercially reasonable means of com-
munication) to Seller or its designated representative, and, if Seller so requests,
in the presence of Seller or its representative. All inspections shall occur at rea-
sonable times agreed upon by Seller and Buyer and shall be conducted so as not
to unreasonably interfere with the use of the Property by Seller or its tenants.
(2) Proof of Insurance. Because Buyer is a municipal corporation protected
by governmental immunity pursuant to Ark. Code Ann. § 21 -9 -501 (West
2004), as may be amended, Buyer is under no obligation to provide Seller with
a certificate of insurance naming Seller as an additional insured party.
(3) Buyer's Indemnity: Disruption of Operations.
(a) Buyer agrees to indemnify Seller for all claims or damages, ex-
cept for personal injury claims and damages, arising from the disruption
of any previously scheduled Seller activities that are cancelled, post-
poned, or otherwise subject to such interference as to destroy the rea-
sonable enjoyment of such activity as a result of any inspection of the
property by Buyer. This provision shall survive any termination of this
Agreement and a Closing of the transaction contemplated hereby for a
period of six (6) months.
(b) Buyer hereby agrees that during any inspection of the Property or
of the Due Diligence Documents as contemplated herein, Buyer shall use
reasonable efforts to refrain from disrupting Seller's ongoing operation
of the Property or Seller's relationship with its tenants, agents or ven-
dors.
(4) Termination or Ratification of Agreement by Buyer. At any time prior
to the expiration of the Due Diligence Period, Buyer, in its sole and absolute
discretion, shall be entitled to terminate this transaction by delivering to Seller a
written notice (the "Contingency Notice") of its approval or disapproval of the
Property. In the event Buyer sends Seller a Contingency Notice prior to the ex-
piration of the Due Diligence Period, this Agreement shall terminate, the De-
posit shall be returned to Buyer and neither party shall have any further rights
or obligations hereunder other than the obligations which expressly survive the
termination hereof. Unless Buyer sends Seller a Contingency Notice prior to
the expiration of the Due Diligence Period, it shall be deemed to have waived
all rights set forth in this paragraph 5 to terminate the Agreement within the
Due Diligence Period.
(5) Confidentiality. As a condition of providing Buyer with the Due Dili-
gence Documents and permitting Buyer access to the Property for site inspec-
tion and review, subject to any disclosures that may be required by the Arkan-
sas Freedom of Information Act, Buyer hereby agrees as follows:
(a) to use reasonable efforts to hold in confidence the information
obtained during Buyer's due diligence process;
(b) not to use or allow the use of any portion of the Due Diligence
Documents for any purpose other than in furtherance of Buyer's efforts
to reach a conclusion whether or not to pursue the consummation of the
transaction contemplated hereby; and
(c) unless the transaction contemplated hereby is consummated, at
Seller's written request, to return or destroy all Due Diligence Docu-
ments furnished to Buyer by Seller in accordance with the provisions
hereof.
The foregoing restrictions shall not apply to disclosure of the terms, conditions and provi-
sions hereof of the information gathered by Buyer hereunder to Persons who "need to know, "
such as Buyer's officers, members, directors, employees, attorneys, accountants, engineers,
surveyors, consultants, financiers, partners, investors and bankers and such other third parties
whose assistance is required in connection with the consummation of this transaction.
Notwithstanding the foregoing paragraph, both Buyer and Seller understand that Buyer is
subject to the disclosure provisions of the Arkansas Freedom of Information Act - Ark. Code
Ann. § 25 -19 -101 to -109 (West 2004 & Supp. 2007) ( "FOIA ") - and cannot withhold the re-
lease of public records requested pursuant to the FOIA. Further, the final terms and agree-
ments to authorize the purchase of the Property shall be approved by the Little Rock Board of
Directors acting in open session through the adoption of appropriate municipal legislation to
authorize the City to purchase this property. Any actions taken pursuant to the FOIA, state
law, or meetings of the Board of Directors, or meetings of City elected or appointed staff,
shall not be deemed a violation of this paragraph.
6. Existing Encumbrances. Seller shall prepare or cause to be prepared, at Buyer's ex-
pense, releases for all mortgages, deeds of trust, assignments of rents and profits and all other
security instruments which constitute Existing Encumbrances, and shall ensure that all of the
Existing Encumbrances are released and removed as liens at Closing.
7. Closing. The Closing ( "Closing ") of the sale and purchase herein provided shall be
consummated at the of of the Title Company with all deliveries required hereunder being
made on or before 2:00 p.m. Central Standard Time on the Closing Date.
(A) Escrow.
(1) On or before 2:00 p.m. Central Standard Time on the Closing Date, the
parties shall deliver to Title Company the following:
(a) a duly executed and acknowledged original General Warranty Deed
covering the Land and Improvements ( "General Warranty Deed") with a re-
verter clause specifying that the Property shall automatically revert to the Seller
if within five (5) years of the Closing Date construction of the Center has not
commenced;
(b) evidence reasonably satisfactory to Title Company that all necessary
authorizations of the transaction provided herein have been obtained by Seller, a
gap undertaking and an owner's affidavit;
(c) a certificate (the " Closing Certificate "), dated as of the Closing Date
and duly executed by Seller representing to Buyer that the representations and
warranties of Seller contained in this Agreement are true and correct in all ma-
terial respects as of the Closing Date as if made on and as of the Closing Date
(or, specifying in reasonable detail such exceptions, if any, which then exist);
and
(2) By Buyer. Buyer shall deliver:
(a) the Closing Payment;
(b) a certificate (the "Closing Certificate "), dated as of the Closing Date and duly
executed by Buyer representing to Seller that the representations and warranties of
Buyer contained in this Agreement are true and correct in all material respects as of the
Closing Date as if made on and as of the Closing Date (or, specifying in reasonable de-
tail such exceptions, if any, which then exist); and
(c) evidence reasonably satisfactory to Title Company that all necessary authoriza-
tions of the transaction provided herein have been obtained by Buyer, and such other
documents and instruments as may be reasonably requested by Title Company in order
to consummate the transaction contemplated hereby and issue the Owner's Policy in-
cluding, but not limited to, a certified copy of the ordinance or resolution by Buyer's
governing body authorizing this purchase.
B. Conditions to Closing: Delivery to Parties. The conditions to the Closing of such es-
crow shall be: Title Company's receipt of funds and documents described in subparagraph A
above at Closing. Upon the satisfaction of the above conditions, the Title Company shall de-
liver the items described in subparagraph A above.
C. Closing Costs.
1. Buyer shall pay:
(a) Buyer's legal fees;
(b) 100% of the cost of the escrow arrangements with the Title Company;
(c) the cost of any of its examinations, inspections and audits of the Prop-
erty, including the cost of any of its appraisals, environmental, physical
and financial audits;
(d) the premium applicable to any mortgagee's Title Policy together with all
additional endorsements required by Buyer's lender;
(e) all Costs due the Title Company in the event of a termination of this
Contract as provided for in Paragraph 4 A hereof, and
(f) Buyer's wiring fees, if any; and
(g) The cost of all documentary stamps or conveyance /transfer taxes payable
in connection with the recordation of the General Warranty Deed; and
(h) The cost of recording the General Warranty Deed; and
(i) the abstract fee and premium applicable to the owner's Title Policy and
the gap endorsement except as provided in paragraph 4 A hereof; and
(j) the recording fees for the release of matters not constituting Permitted
Exceptions; and
(k) all costs associated with the release of Existing Encumbrances to be re-
leased, including, without limitation, administrative, recording, or other
fees payable to any lien holder and any penalty for prepayment, incurred
in connection with the satisfaction of any Existing Encumbrances except
the actual amount of the Existing Encumbrance; and
(I) all other costs associated with the transfer of title, including deed prepa-
ration; and
(m) the cost of the Survey.
2. Seller shall pay:
(a) All amounts -- except administrative, recording or other fees, penalty for
prepayment -- payable to any lien holder in connection with the satisfac-
tion of any Existing Encumbrance.
I Buyer shall pay regardless of what may be the customary practice:
(a) legal fees and expenses;
10
(b) any necessary share of prorations (as provided below), and
(c} cost of all opinions, certificates, instruments, documents and papers re-
quired to be delivered, or caused to be delivered, by it hereunder and the
cost of all its performance under this Agreement. All other Closing
costs not specifically allocated herein shall be paid by the parties as is
customary in the county in which the Property is located.
D. Prorations.
(1) Items to be Prorated. The following shall be prorated between Seller and Buyer as of
the Closing Date:
(a) All general real estate taxes on the Property payable in respect to the current
fiscal year of the applicable tax authority in which the Closing Date occurs (the "Cur-
rent Tax Year "). In the event that said taxes for the Current Tax Year have not yet
been determined, the proration shall be based on one hundred ten percent (110 %) of
said taxes for the preceding year.
(b) All special assessments on the Property payable in respect to the Current Tax
Year. In the event that said assessments for the year of Closing have not yet been de-
termined, the proration shall be based on one hundred ten percent (110%) of said as-
sessments for the preceding year.
(2) Calculation. The prorations and payments shall be made on the basis of a written
statement and approved by Buyer and Seller. In the event any prorations or apportionments
made under this subparagraph D shall prove to be incorrect for any reason, then any party
shall be entitled to an adjustment to correct the same. Any item which cannot be finally pro-
rated because of the unavailability of information shall be tentatively prorated on the basis of
the best data then available and promptly re- prorated when the information is available. The
proration provisions of this Agreement shall survive the closing of the transaction contem-
plated hereby for a period of one (1) year.
(3) Items Not Prorated. Seller and Buyer agree that (a) none of the insurance policies re-
lating to the Property will be assigned to Buyer (and Seller shall pay any cancellation fees re-
sulting from the termination of such policies) and Buyer shall be responsible for arranging for
its own insurance as of the Closing Date; (b) invoices for single instances that are non - routine
or non - recurring in nature (i.e., specific repair invoices, maintenance charges) which relate to
the performance of services on or before the Closing Date shall be paid by Seller; and (c) utili-
ties, including telephone, electricity, water and gas, shall be read on the Closing Date to the
extent reasonably feasible. Accordingly, there will be no prorations for insurance or utilities.
Notwithstanding the foregoing, in the event a meter reading is unavailable for any particular
utility, such utility shall be prorated.
11
S. Maintenance /Repairs /Destruction /Condemnation of Property
A. Maintenance of Property. Subject to the provisions of Paragraph 12B hereof, Seller
shall deliver the Property with all Improvements, including, without limitations, all existing
buildings, curbs, sidewalks, air conditioning, roofs, heaters, and all other existing mechanical,
electrical, and plumbing systems as the Property exists as of the Effective Date, subject to or-
dinary wear and tear.
B. Major Damage. In the event of a major Ioss or damage or condemnation, Seller shall
give notice thereof to the Buyer as soon as reasonably possible. In the event of a major loss or
of condemnation by an entity other than Buyer, Buyer may terminate this Agreement by writ-
ten notice to Seller, in which event the Deposit shall be promptly returned to Buyer and the
parties shall have no further liability or obligation hereunder. If Buyer receives written notice
and fails to elect to terminate this Agreement within twenty (20) days after Buyer receives
written notice of condemnation, then Buyer shall be deemed to have elected to proceed with
Closing.
9. Representations and Warranties: Certain Covenants
A. Representations and Warranties of Seller. As a material inducement to Buyer to exe-
cute this Agreement and consummate this transaction, Seller hereby represents and warrants
the following to Buyer:
(1) Sole Fee Ownership. Seller is the sole fee simple owner of the Premises and
has all necessary authority to sell the Property; no other party has any right, title or in-
terest in the Premises except for the acknowledged cell tower lease referred to in Para-
graph 2B.
(2) Delivery of Possession; Existing Lease. Except for the cell tower lease referred
to in Paragraph 2B, Seller has exclusive possession of the Property and the Improve-
ments thereon and shall deliver possession of the Property and the Improvements
thereon to Buyer at Closing, subject to the dictates of Paragraph 2A. Seller shall take
all necessary action to lawfully terminate any leases other than the cell tower lease,
subleases, holdovers, tenancies, concessions, licenses, rental agreements or occupancy
agreements or any other possessory interests or any other similar rights pertaining to or
affecting the use or occupancy of the Property and /or the Improvements thereon and to
deliver possession of the Property and the Improvements thereon to the Buyer at Clos-
ing, subject to the language in Paragraph 2A. The parties acknowledge that the existing
lease between the Buyer and Seller, a copy of which is attached as Exhibit "C", shall
be merged into this Agreement, but that should the Property revert to Seller, the parties
shall enter into a lease of the previously leased property substantially in the same form
and under the same terms as the existing lease.
B. Representations and Warranties of Buyer. Buyer hereby represents and warrants the
following to Seller.
(1) Authority. Buyer is a municipal corporation duly organized, validly existing and
in good standing under the laws of the State of Arkansas and duly authorized and quali-
fied to do all things required of it under this Agreement. Buyer has or will have on the
Closing Date all requisite power and authority under its organizational documents and
applicable law to execute and deliver, and to perform all of its obligations under, this
12
Agreement and nothing prohibits or restricts the right or ability of Buyer to close the
transactions contemplated hereunder and carry out the terms hereof.
(2) Due Execution/Enforceability. This Agreement and all agreements, instruments
and documents herein provided to be executed or to be caused to be executed by Buyer
are duly authorized, executed and delivered by and are binding upon Buyer.
(3) No Bankruptcy /Dissolution Event. No Bankruptcy /Dissolution Event has oc-
curred with respect to Buyer.
C. Certain Interim Covenants of Seller. Until the Closing Date or the sooner termination
of this Agreement:
(1) Seller shall not subject the Property to or consent to any leases, liens, encum-
brances, covenants, conditions, restrictions, easements, rights of way, or agreements,
or take any other action affecting or modifying the status of title or otherwise affecting
the Property, without the written consent of the Buyer.
(2) Seller shall not enter into any additional Business Agreement (as defined in
Paragraph 13H) without the prior consent of Buyer which is not cancelable upon thirty
(30) days prior written notice.
(3) Seller shall maintain its existing insurance policies for the Property through the
Closing Date.
D. Hazardous Substances. (1) To Seller's knowledge, Seller has never received any writ-
ten notice from any governmental authority regarding the presence or alleged presence of any
hazardous substances on the Property. For the purposes of this Section 9D, "hazardous sub-
stances" shall mean (i) any "hazardous substance," "hazardous material," "toxic substance" or
"solid waste" as such terms are presently defined in CERCLA, RCRA and the Hazardous Ma-
terials Transportation Act (49 U.S.C. Section 1801 et seq.) (ii) any additional substances or
materials which are hereafter incorporated in or added to the definition of "hazardous sub-
stance" for the purposes of such laws; (iii) those substances listed in the United States Depart-
ment of Transportation Table (49 CFR 172.101 and amendments thereto) or by the Environ-
mental Protection Agency (or any successor agency) as hazardous substances (40 CFR Part
302 and amendments thereto); (iv) any material, waste or substance which is (A) petroleum,
(B) asbestos or asbestos containing material, (C) poly - chlorinated biphenyls, (D) designated as
a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. 1251 (33
U.S.C. 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. 13 17); (F)
flammable explosives; or (F) radioactive materials; and (v) any additional substances or mate-
rials which are now or hereafter considered to be "hazardous substances" (including, without
limitation, any asbestos containing materials) under any applicable law, rule or regulation
(whether local, state or federal) relating to the Property.
(2) Seller acknowledges that in connection with Buyer's inspections of the Property,
Buyer has performed or its consultants have performed such tests and inspections as
Buyer deems necessary to reveal the presence of any Hazardous Substance on the Prop-
erty.
10. Indemnification Obligations. If the Closing occurs, then the parties shall have the
following respective indemnification obligations:
13
A. Indemnification by Seller. As additional consideration for Buyer purchasing the
Property and paying the purchase price to Seller, Seller hereby covenants and agrees to
indemnify, defend and hold Buyer (together with its partners, officers, directors,
agents, attorneys, contractors, employees and representatives and any partner of the
foregoing) harmless from and against all claims, demands, causes of actions, judg-
ments, damages, costs and expenses (including, without limitation, attorneys' fees and
court costs), deficiencies, settlements and investigations which relate to matters, actions
or omissions arising or occurring on or before the time of Closing, which arise out of
or are based upon any of the following:
(a) any obligation with respect to any time period prior to the Closing Date
under any of the Service Contracts and under all other contracts, agreements
and writings entered into by or on behalf of Seller in respect of the use, opera-
tion, ownership, occupancy or maintenance of any portion of the Property;
(b) any and all labor or employment related liabilities, claims, demands,
causes of action, judgments, damages, costs or expenses, grievances, unfair la-
bor practices, violations of any applicable law which Buyer may be subject to or
incur by reason of any act, omissions or matters relating to any employees of
Seller;
(c) any accident, injury, death or damage whatsoever caused to any person
or entity or loss of property, occurring prior to the Closing Date in or about the
Property or any part thereof, or on any other property connected with or adja-
cent thereto;
(d) all actions, proceedings and other legal processes threatened or pending
against Seller and /or the Property which arise from actions or omissions by
Seller and any of its employees; and
(e) any Claim in any way related to the Property first arising or accruing
prior to the Closing Date, including, without limitation, any Claim first arising
or accruing before the Closing Date under any Tenant Lease, Permitted Excep-
tion or Service Contract.
B. Legal Protection by Buyer. To the extent that Buyer, in its sole direction, is
not protected from any such action because it enjoys governmental immunity in Ark.
Code Ann. § 21 -9 -501 (West 2004), as amended, or is protected from liability for
lands used for recreational purposes pursuant to Ark. Code Ann. §§ 18 -11 -301 to -307
(West 2004), as amended, Buyer shall protect and defend Seller from and against any
Claim in any way related to the Property first arising or accruing on or after the Clos-
ing Date, including any Claim first arising or accruing on or after the Closing Date un-
der any Permitted Exception or Service Contract expressly assumed by Buyer under the
Bill of Sale or the Assignment and Assumption Agreement provided, however, Buyer
shall not be obligated to protect and defend Seller if a Claim results from a fact or cir-
cumstance that is inconsistent with the representations and warranties of Seller in con-
nection with breach of a representation or warranty by Seller under this Agreement or
any document executed by Seller pursuant to this Agreement, or constitutes or results
from a breach by Seller of a matter which is the responsibility of Seller under this
Agreement or any document executed by Seller pursuant to this Agreement regardless
of any survival limitation that may otherwise apply.
14
11. Default and Termination Rights
A. Default by Seller: Failure of Conditions Precedent.
to: (1) In the event of any default by Seller hereunder, Buyer, at its option may elect
(a) terminate this Agreement, in which event the Deposit shall be promptly
returned to Buyer, and all other rights and obligations of Seller and Buyer here-
under (except those set forth herein which expressly survive a termination of
this Agreement) shall terminate immediately; or
(b) extend the Closing date by an additional (30) days to allow Seller to cure
the default; or
(c) proceed to Closing and to consummate the transaction contemplated
hereby, notwithstanding such default; or
(d) pursue specific performance of Seller's covenants and obligations; or
(e) pursue such other remedies as may be available at law or in equity.
(2) In the event that Seller fails to consummate the transaction contemplated here-
under by reason of the failure of a condition precedent to its obligations hereunder, the
Deposit shall be returned to Buyer and the parties hereto shall be relieved from all fur-
ther obligations hereunder, except those which expressly survive termination of this
Agreement.
B. Default by Buyer. In the event of any default by Buyer hereunder, Seller may,
as its sole and exclusive remedy (except as provided in subparagraph D below), termi-
nate this Agreement and retain the Deposit.
C. Remedies for Breach of Covenants that Survive Closing. To the extent that ei-
ther Seller or Buyer breaches a covenant or warranty which survives Closing, the non-
defaulting party shall have the right to pursue any remedy available at law or in equity
arising out of such breach or the damages relating thereto.
D. Limitation of Liability. Notwithstanding anything herein to the contrary, except
in the case of fraud by either party, the liability of each party hereto resulting from the
breach or default by either parry shall be limited as provided above, and, except in the
case of fraud by either party and except as set forth in subparagraph C above, the par-
ties hereto hereby waive their rights to recover from the other party consequential, pu-
nitive, exemplary and speculative damages. The provisions of this paragraph shall sur-
vive the Closing of the transaction contemplated hereby.
12. Conditions to Closing
A. Seller's Conditions to Closing. In addition to the conditions provided in other
provisions of this Agreement, Seller's obligations to perform its undertakings provided
in this Agreement (including its obligation to sell the Property) are conditioned on the
following:
15
(1) Performance by Buyer. The due performance by Buyer of each and
every undertaking and agreement to be performed by it hereunder in all material
respects (including the delivery to Seller of the items specified to be delivered
by Buyer in Paragraph 7 hereof) and the truth of each representation and war-
ranty made by Buyer in this Agreement in all material respects at the time as of
which the same is made and as of the Closing Date as if made on and as of the
Closing Date.
(2) No Bankruptcy or Dissolution. That at no time on or before the Closing
Date shall any Bankruptcy /Dissolution Event have occurred with respect to
Buyer.
B. Buyer's Conditions to Closing. In addition to the conditions provided in other
provisions of this Agreement, Buyer's obligations to perform its undertakings provided
in this Agreement (including its obligation to purchase the Property) are conditioned on
the following:
(1) Performance by Seller. The due performance by Seller of each and
every undertaking and agreement to be performed by it hereunder in all material
respects (including the delivery to Buyer of the items specified to be delivered
by Seller in Paragraph 7), and the truth of each representation and warranty
made by Seller in this Agreement in all material respects at the time as of which
the same is made and as of the Closing Date. Without limitation on the forego-
ing, there shall be no defaults or exceptions noted in the Closing Certificate.
(2) No Bankruptcy or Dissolution. That at no time on or before the Closing
Date shall a Bankruptcy /Dissolution Event have occurred with respect to Seller
or the general partner of Seller.
(3) Condition of Property. The Property and the Improvements remain in
the same condition as on the date hereof, ordinary wear and tear excepted.
(4) Delivery of Possession. Except as described in Paragraph 2, Seller shall
deliver exclusive possession of and the exclusive right to the use of the Property
(save for recorded easements) and the Improvements thereon to Buyer by the
Closing Date, as represented and warranted by the Seller in Paragraph 9A(2) of
this Agreement. If Seller has failed to satisfy this condition by the Closing Date,
Purchaser may, in its sole discretion (i) extend the Closing date by another
thirty (30) days, or (ii) terminate this Agreement by giving written notice to
Seller, whereupon Seller shall return the Deposit to the Buyer. If Purchaser
elects to exercise its option to extend the Closing date by another thirty (30)
days as provided under this Paragraph 12B(4), and this condition remains unsat-
isfied as of the extended Closing date, this Agreement shall terminate and Seller
shall return the Deposit to the Buyer.
13. Miscellaneous
A. Brokerage Issues. Seller and Buyer warrant and represent to each other respec-
tively that there is no broker involved in this transaction. The parties hereto further
warrant and represent to each other respectively that there are no brokerage fees arising
in connection with this transaction unless it has been specifically enumerated herein. In
16
the event that either of the parties hereto incurs any obligation or liability, or claim of
liability, based in any way on any agreements, arrangements or understanding claimed
to have been made or actually made by them with any third party, the parties mutually
agree to indemnify and hold the other harmless against and with respect to any such ob-
ligation. Any brokerage fees shall be the sole obligation of the parry incurring the
same.
B. Limitation of Liability of Buyer. No present or future partner, member, direc-
tor, officer, shareholder, employee, advisor, affiliate or agent of or in Buyer or any af-
filiate of Buyer shall have any personal liability, directly or indirectly, under or in con-
nection with this Agreement or any agreement made or entered into under or in connec-
tion with the provisions of this Agreement, or any amendment or amendments to any of
the foregoing made at any time or times, heretofore or hereafter, and Seller and its
successors and assigns and, without limitation, all other persons and entities, shall look
solely to Buyer's assets for the payment of any Claim or for any performance, and
Seiler hereby waives any and all such personal liability. In addition, neither Buyer nor
any successor or assign of Buyer intends to assume any personal liability, directly or
indirectly, under or in connection with any Business Agreement to which the Property
is now or hereafter subject, and no such assumption shall be implied except to the ex-
tent expressly set forth in the Bill Of Sale or the Assignment and Assumption Agree-
ment. The limitations of liability contained in this Paragraph are in addition to, and not
in limitation of, any limitation on liability applicable to Buyer provided elsewhere in
this Agreement or by law or by any other contract, agreement or instrument.
C. Limitation of Liability of Seller. No present or future partner, member, direc-
tor, officer, shareholder, employee, advisor, affiliate or agent of or in Seller or any af-
filiate of Seller shall have any personal liability, directly or indirectly, under or in con-
nection with this Agreement or any agreement made or entered into under or in connec-
tion with the provisions of this Agreement, or any amendment or amendment to any of
the foregoing made at any time or times, heretofore or hereafter, and Buyer and its
successors and assigns and, without limitation, all other persons and entities, shall look
solely to Seller and Seller's assets for the payment of any Claim or for any perform-
ance. In addition, neither Seller nor any successor or assign of Seller intends to as-
sume any personal liability, directly or indirectly, under or in connection with any
Business Agreement to which the Property is now or hereafter subject, and no such as-
sumption shall be implied except to the extent expressly set forth in the Bill of Sale or
the Assignment And Assumption Agreement. The limitations of liability contained in
this Paragraph are in addition to, and not in limitation of, any limitation on liability ap-
plicable to Seller provided elsewhere in this Agreement or by law or by any other con-
tract, agreement or instrument.
D. Successors and Assigns. Seller may not assign or transfer its rights or obliga-
tions under this Agreement without the prior written consent of Buyer which shall not
be unreasonably withheld, delayed or charged for (in which event such transferee shall
assume in writing all of the transferor's obligations hereunder, but such transferor shall
not be released from its obligations hereunder). No consent given by Buyer to any
transfer or assignment of Seller's rights or obligations hereunder shall be construed as a
consent to any other transfer or assignment of Seller's rights or obligations hereunder.
Buyer may assign or transfer its rights or obligations under this Agreement prior to the
Closing Date without the prior written consent of Seller, including any financing entity
utilized by Buyer to finance the acquisition of the Property or to any nonprofit corpora-
tion established by or designated by Buyer, so long as the assignment of Buyer's rights
17
to purchase hereunder does not delay or prevent Closing. No transfer or assignment in
violation of the provisions hereof shall be valid or enforceable. Subject to the forego-
ing, this Agreement and the terms and provisions hereof shall inure to the benefit of
and be binding upon the successors and assigns of the parties. In the event that the
rights and obligations of either Buyer or Seller shall be transferred and assigned as
permitted under this Agreement, then such assignor shall not be released from any ob-
ligation or liability hereunder, and such transferee and assignee will be substituted in
place of such assignor in the above - provided -for documents and it shall be entitled to
the benefit of and may enforce the covenants, representations and warranties provided
herein. Any liabilities and obligations assignor assumed under any instruments, docu-
ments or agreements made pursuant hereto shall also be binding upon assignee; pro-
vided, however, that assignee shall have the benefit of any limitations of such liabilities
and obligations applicable to either the assignor or assignee, provided by law or by the
terms hereof or such instruments, documents or agreements.
E. Notices. Any written notice which a party is required or may desire to give the
other shall be sent by personal delivery or by mail (either [i] by United States regis-
tered or certified mail, return receipt requested, postage prepaid, or [ii] by Federal Ex-
press or similar generally recognized overnight carrier regularly providing proof of de-
livery), addressed as follows (subject to the right of a party to designate a different ad-
dress for it if by notice similarly given at least five (5) days in advance):
To Buyer: (Name of City Manager)
Office of the City Manager
500 West Markham, 2d Floor
Little Rock, Arkansas 72201
With Copy to: (Name of Director of Parks & Recreation)
Department of Parks & Recreation
500 West Markham, 1" Floor
Little Rock, Arkansas 72201
To Seller: Rosedale Optimist Club
c/o William F. Jones, Secretary - Treasurer
9604 Vaughn Dr.
Little Rock, AR 72205
To Title Company: Beach Abstract & Guaranty
100 Center St.
Little Rock AR 72201
Any notice so given by mail shall be deemed to have been given as of the date of deliv-
ery (whether accepted or refused) established by U.S. Post Office return receipt or the
overnight carrier's proof of delivery, as the case may be. Any such notice not so given
shall be deemed given upon actual receipt of the same by the party to whom the same is
to be given. Notices may be given by facsimile transmission and shall be deemed
given upon the actual receipt of the same by, the individual to which they are ad-
dressed, and shall be promptly followed by a hard copy notice by mail as provided
above.
F. Legal Costs. In addition to any other remedies provided herein, in the event
any action be instituted by a party to enforce this Agreement, the prevailing party in
such action (as determined by the court, agency or other authority before which such
suit or proceeding is commenced), shall be entitled to such reasonable attorneys' fees,
costs and expenses as may be fixed by the decision maker.
G. Further Instruments. Each party will, whenever and as often as it shall be re-
quested so to do by the other, cause to be executed, acknowledged or delivered any and
all such further instruments and documents as may be necessary or proper, in the rea-
sonable opinion of the requesting parry, in order to carry out the intent and purpose of
this Agreement.
H. Matters of Construction.
(1) Incorporation of Exhibits. All exhibits attached and referred to in this
Agreement are hereby incorporated herein as fully set forth in (and shall be
deemed to be a part of) this Agreement.
(2) Entire Agreement. This Agreement contains the entire agreement be-
tween the parties respecting the matters herein set forth and supersedes all prior
agreements between the parties hereto respecting such matters except the Es-
crow Agreement.
(3) Time of the Essence. Subject to subparagraph (4) below, time is of the
essence of this Agreement.
(4) Non - Business Days. Whenever action must be taken (including the giv-
ing of notice of the delivery of documents) under this Agreement during a cer-
tain period of time (or by a particular date) that ends (or occurs) on a non -
business day, then such a period (or date) shall be extended until the immedi-
ately following business day. As used herein, "business day" means any day
other than a Saturday, Sunday or federal or Arkansas holiday.
(5) Severability. If any term or provision of this Agreement or the applica-
tion thereof to any person or circumstance shall, to any extent, be invalid or un-
enforceable, the remainder of this Agreement, or the application of such term or
provision to persons or circumstances -other than those as to which it is held in-
valid or unenforceable, shall not be affected thereby, and each such term and
provision of this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
(6) Interpretation. Words used in the singular shall include the plural, and
vice - versa, and any gender shall be deemed to include the other. Whenever the
words "including: "include" or "includes" are used in this Agreement, they
should be interpreted in a non - exclusive manner. The captions and headings of
the Paragraphs of this Agreement are for convenience of reference only, and
shall not be deemed to define or limit the provisions hereof. Except as other-
wise indicated, all Exhibit and Paragraph references in this Agreement shall be
deemed to refer to the Exhibits and Paragraphs in this Agreement. Each party
acknowledges and agrees that this Agreement (a) has been reviewed by it and its
counsel; (b) is the product of negotiations between the parties, and (c) shall not
be deemed prepared or drafted by any one party. In the event of any dispute
19
between the parties concerning this Agreement, the parties agree that any ambi-
guity in the language of the Agreement is to not to be resolved against Seller or
Buyer, but shall be given a reasonable interpretation in accordance with the
plain meaning of the terms of this Agreement and the intent of the parties as
manifested hereby.
(7) No Waiver. Any party may at any time or times, at its election, waive
any of the conditions to its obligations hereunder, but any such waiver shall be
effective only if contained in a writing signed by such party (except that if a
party proceeds to Closing, notwithstanding the failure of a condition to its obli-
gation to close, then such condition shall be deemed waived by the Closing).
No such waiver shall reduce the rights or remedies of a party by reason of any
breach by the other party hereunder. Waiver by one party of the performance of
any covenant, condition or promise of the other party shall not invalidate this
Agreement, nor shall it be deemed to be a waiver by such party of the perform-
ance of any other covenant, condition or promise by such other party (whether
preceding or succeeding and whether or not of the same or similar nature) . No
failure or delay by one parry to exercise any right it may have by reason of the
default of the other party shall operate as a waiver of default or modification of
this Agreement or shall prevent the exercise of any right by such party while the
other party continues to be so in default.
(8) Consents and Approvals. Except as otherwise expressly provided
herein, any approval or consent provided to be given by a party hereunder may
be given or withheld in the absolute discretion of such party.
(9) Governing Law. This Agreement shall be construed and enforced in ac-
cordance with the laws of the State of Arkansas.
(10) Third Party Beneficiaries. Except as otherwise expressly provided in
this Agreement, Seller and Buyer do not intend by any provision of this Agree-
ment to confer any right, remedy or benefit upon any third party (express or
implied), and no third party shall be entitled to enforce or otherwise shall ac-
quire any right, remedy or benefit by reason of any provision of this Agree-
ment.
(11) Amendments. This Agreement may be amended by written agree-
ment of amendment executed by all parties, but not otherwise.
(12) Survival. Unless otherwise expressly provided for in this Agree-
ment, the representations, warranties, indemnification, obligations and cove-
nants of the parties set forth in this Agreement shall survive the consummation
of the transaction contemplated by this Agreement and the delivery and recorda-
tion of the Deed for a period of one hundred eighty days. All warranties and
representations shall be effective regardless of any investigation made or which
could have been made.
(13) Cumulative Remedies. No remedy conferred upon a party in this
Agreement is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law, in eq-
uity or by statute (except as otherwise expressly herein provided).
20
(14) Certain Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Bankruptcy /Dissolution Event" means the occurrence of any of
the following (i) the commencement of a case under Title 11 of the U.S.
Code, as now constituted or hereafter amended, or under any other ap-
plicable federal or state bankruptcy law or other similar law; (ii) the ap-
pointment of a trustee or receiver of any property interest; (iii) an as-
signment for the benefit of creditors; (iv) an attachment, execution or
other judicial seizure of a substantial property interest; (v) the taking of,
failure to take, or submission to any action indicating an inability to meet
its financial obligations as they accrue; or (vi) a dissolution or liquida-
tion, death or incapacity.
(b) "Business Agreement" means any Service Contract, lease, rental
agreement, loan agreement, mortgage, easement, covenant, restriction or
other agreement or instrument at any time or times affecting all or a por-
tion of the Property.
(c) "Claim" means any obligation, liability, claim (including any
claim for damage to property or injury to or death of any persons), lien
or encumbrance, loss, damage, cost or expense (including any judgment,
award, settlement, reasonable attorneys' fees and other costs and ex-
penses incurred in connection with the defense of any actual or threat-
ened action, proceeding or claim [(including appellate proceedings)] , and
any collection costs or enforcement costs)].
(d) "Due Diligence Documents" shall include all documentation re-
garding any outstanding leases, mortgages and liens and any indication
or knowledge that the property is not in compliance with ADEQ or EPA
or other environmental laws or regulations. Due Diligence Documents
shall not include Seller's internal memoranda, internal budgets, ap-
praisal, accounting tax records and similar proprietary or confidential in-
formation.
(e) "Due Diligence Period" means the period commencing on the Ef-
fective Date and ending forty -five (45) days thereafter.
(f) "Laws" means all federal, state and local laws, moratoria, initia-
tives, referenda, ordinances, rules, regulations, standards, orders, zon-
ing conditions and other governmental requirements (including those re-
lating to the environment, health and safety, or handicapped persons)
applicable to the Property.
(g) "Permits" means all permits, licenses, approvals, entitlement and
other governmental authorizations (including certificates of occupancy)
required in connection with the ownership, planning, development, con-
struction, use, operation or maintenance of the Property.
(h) "Person" means and includes all individuals, corporations, gen-
eral and limited partnerships, limited liability companies, stock compa-
21
nies or associations, joint ventures, associations, companies, trusts,
banks, trust companies, land trusts, business trusts, or other entities and
governments and agencies and political subdivisions thereof.
(i) "Physical Inspection Period" means the period commencing on
the Effective Date and ending forty -five (45) days thereafter.
0) "Service Contracts" means all service and equipment leasing con-
tracts with respect to or affecting the Property.
I. Press Releases. Any press release issued with respect to the transactions con-
templated by this Agreement shall be subject to the prior approval of both parties
hereto.
J. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to constitute an original, but all of which, when taken
together, shall constitute one and the same instrument, with the same effect as if all of
the parties to this Agreement had executed the same counterpart.
K. Restricted Use Termination Notices. Within ten (10) days after the Effective
Date, Seller shall give any and all required federal, state and local restricted use termi-
nation notices. Buyer will approve the form of said notices prior to distribution.
22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
SELLER:
ROSEDALE OPTIMIST CLUB
BY:
President
President -Elect
Vice - President
Secretary - Treasurer
BUYER:
CITY OF LITTLE ROCK, ARKANSAS
An Arkansas municipal corporation of the first
class
BY:
Bruce T. Moore
City Manager
23
EXHIBIT "A"
TO
REAL PROPERTY PURCHASE AGREEMENT
LEGAL DESCRIPTION OF THE REAL PROPERTY
The property referred to in this Agreement is located in the County of Pulaski, State of Arkan-
sas and known as and numbered and described as follows:
8616 Colonel Glenn Road, Little Rock, Arkansas.
A -1
EXHIBIT "B"
TO REAL PROPERTY PURCHASE AGREEMENT
DUE DILIGENCE DOCUMENTS
Im
EXHIBIT "C"
TO REAL PROPERTY PURCHASE AGREEMENT
LEASE
C -1