HomeMy Public PortalAbout2000.02.17 Purchase Agreement }
G
4
PURCHASE AGREEMENT
THIS AGREEMENT is entered into on 5.g . 1 , 2000,by and between J. P.
SEUBERT and CHERIE SEUBERT, husband and wife ("Seuberts"), SEUBERT
EXCAVATORS, INC. ("Excavators"), CLEARWATER CONCRETE, INC. ::
("Clearwater") and VALLEY PAVING & ASPHALT, INC., ("Valley"), who are hereinafter
identified by name or, collectively, as "Occupants" or "Seller" and the CITY OF MCCALL,
AN IDAHO MUNICIPAL CORPORATION, ("Purchaser").
RECITALS s
1. Seuberts own certain real property which is located in the City of McCall, Valley
County, State of Idaho, (hereinafter "the Property"). The Property consists of two parcels
(Parcels A and B), which are described and depicted in the attached Exhibits "A" and "B"
respectively. Occupants are conducting businesses, in whole or part, on the Property.
2. Seller has agreed to sell and the Purchaser has agreed to purchase, together with
certain easements, the Property for the purchase price and on the terms and conditions set forth in
this Agreement. Purchaser shall purchase Parcel A at closing. Seller shall grant to Purchaser at
closing a permanent, perpetual and irrevocable easement to Parcel B for the conduct by
Purchaser of any and all activities, reasonably related to the design, construction, repair,
maintenance and operation of the Project. Seller shall further grant to Purchaser at close an
option to purchase Parcel B for the additional consideration of$1.00, which shall be exerciseable
any time within sixty (60) days after the hot asphalt plant currently located on Parcel B is
removed from Parcel B.
3. Seller is retaining property which adjoins and is west of the Property ("the
:3 Retained Property"). Seller is also being granted certain easements. Seller shall continue to
engage in such activities on the Retained Property as are currently underway or as may otherwise
be permitted and allowed by law.
4. Purchaser's intended use of the Property is for construction and operation of a
treated wastewater effluent storage reservoir (hereinafter "the Storage Reservoir") and related
{ facilities (hereinafter jointly referred to as "the Project"). The Preliminary design for the Project
has been reviewed by the parties. Final design will be approved by the Idaho Department of
PURCHASE AGREEMENT- 1
Water Resources ("I.D.W.R.") and the Idaho Department of Health and Welfare, Division of
Environmental Quality("DEQ").
5. The Property contains a quantity of sand and gravel materials not needed for the
construction of the Project ("Excess Materials"). The exact volume of Excess Materials will be
determined through construction. The current engineering estimate, which the parties agree to be
reasonable, is that 466,125 cubic yards of Excess Materials will be produced by the Project.
6. The parties desire to memorialize the terms of their agreement.
AGREEMENT
WHEREFORE, for the consideration and mutual covenants recited herein,the parties
agree and covenant as follows:
7. Purchase Price: Purchaser shall pay Seller the sum of Eight Hundred Twenty
Five Thousand and No/100 Dollars ($825,000.00) for the Property, (i.e. for the purchase of
Parcel A,the easement to Parcel B and the Option to purchase Parcel B) as follows:
(a) $230,000.00 in non-refundable earnest money, as provided below;
and,
(b) $595,000.00 paid at closing, to be paid to an accommodator to be
designated by Seller for a Section 1031 exchange.
8. Section 1031 Exchange: Purchaser is aware that Seller is attempting to structure
the transaction, in part, as a Section 1031 tax-deferred exchange. Purchaser agrees to cooperate
with Seller by signing all documentation reasonably necessary to accomplish the exchange,
provided that Purchaser incurs no additional cost, liability, or other detriment by reason of such
cooperation.
9. Business Disruption: The aforesaid purchase price is accepted by Seller as
payment in full for the Property, and as consideration in full for any and all expenses or damages
related to the disruption of Seller's business ventures which might result from the acquisition of
the Property and/or construction of the Project.
10. Seller's Mining Activities: It is understood and agreed by the Parties hereto that
Seller shall not only continue its mining activities on the Retained Property; but, shall also be
PURCHASE AGREEMENT-2
entitled to mine and remove material (i.e. native sand, rock, dirt and gravel) from the portion of
the City's Property located west of the Storage Reservoir, and to use such property for staging
t
and stockpiling. Seller shall conduct it's aforesaid mining activity on the City's Property in strict
accordance with Plans and Specifications which shall be provided by Purchaser, as approved by
IDWR as part of the final design for the Project.
11. Excess Materials: In addition to payment of the cash at closing, Purchaser shall
deliver Excess Materials remaining from the construction of the Project to Seller's Retained
Property or to property owned by Purchaser(located north of the City's current sewage treatment
plant), as described below. The Excess Material shall be placed on the sites and in the manner
e
depicted on the attached Exhibit "C". Purchaser shall obtain all necessary City, County, State or
Federal permits, prior to placing Excess Materials on Seller's Retained Property. Upon
placement, the Excess Material shall become the exclusive property of Seller, who shall also be
exclusively responsible for the further handling, storage and management of the material. Seller
hereby releases Purchaser from, indemnifies Purchaser against and agrees to hold Purchaser
harmless regarding any claims or liability of any kind related to the Excess Material, once it is
placed on Seller's or Purchaser's property, as aforesaid, except claims regarding Purchaser's
performance of its responsibilities under this Agreement.
The parties each as to the other release and waive any claims for damages, expenses or
liability of any kind stemming from or based on any deviation between the actual volume of
Excess Material which is produced by the construction, as opposed to the estimated volume
noted above.
Prior to placing Excess Material on Seller's retained property, Purchaser shall clear and
` grub down to but not materially below, the overburden/sand and gravel interface on lands to be
used for the above-described Excess Material, and shall deliver such overburden to the sites
depicted on the attached Exhibit "C". This material shall remain the exclusive property of the
Seller. If the Purchaser elects to place this overburden on property owned by the City, then the
Seller shall have the right to use whatever equipment is necessary to process and remove this
material until it is depleted. Seller hereby releases Purchaser from, indemnifies Purchaser
against and agrees to hold Purchaser harmless regarding any claims or liability of any kind
related to the said overburden material, once it is placed on Seller's or Purchaser's property, as
PURCHASE AGREEMENT-3
aforesaid, except claims regarding Purchaser's performance of its responsibilities under this
Agreement.
Seller hereby grants to Purchaser the right to come onto and access Seller's retained
property, as necessary to carry out Purchaser's above-described responsibilities.
12. Title and Title Insurance: The title to the Property shall be conveyed by Seller to
Purchaser at closing, by Warranty Deed, free and clear of all liens, encumbrances, defects and
burdens, except utility easements of record. Seller shall deliver or cause to be delivered to
Purchaser, no later than fifteen (15) days after the execution of this Agreement, a Commitment
for a standard form title insurance policy, issued by Mountain Title and Escrow Company, Inc.,
in the amount of the Purchase Price, showing marketable and insurable title, as aforesaid, subject
-printed Schedule"B" exceptions contained in all like policies.
only to the standard pre
13. Easement to Seller: Purchaser shall grant to Seller at closing a permanent,
perpetual, irrevocable, non-exclusive easement across the Property, to allow Seller continued
access to Seller's settling ponds, as described in the attached Exhibit "D-1", and depicted on the
attached Exhibit "D-2". The City shall construct a twelve foot wide, graveled road within the
easement on an alignment which connects the western boundary of the easement with Seller's
existing access road, which is depicted on the attached Exhibit D-2. Upon the construction of
such road, then this easement shall be replaced with a specifically described twenty-four foot
wide easement, the centerline of which shall be the centerline of the road.
14. Easement to Purchaser/Release of Easements by Seller: At closing, Seller shall
grant to Purchaser certain permanent, perpetual, irrevocable, non-exclusive easements across
Seller's retained property to provide Purchaser with access to the Property, and to allow for the
installation and maintenance of pipes and utilities, as described in the attached Exhibit 11E-111, "E-
-3". It is understood that the easement described in
2", and depicted in the attached Exhibit "E
the attached Exhibit E-1 and depicted as "Parcel 1" on the attached Exhibit E-3 shall not be
available for use until Seller has completed its mining and excavation of the westerly portion of
the City's Property, as described in paragraph 10 above. After construction of the facility, the
easement for Parcel 2, which is described in the attached Exhibit E-2 and depicted in the attached
Exhibit E-3, shall be replaced with a specifically described seventy foot wide easement,
PURCHASE AGREEMENT-4
traversing Parcel 2 in a generally northerly-southerly alignment. Purchaser shall at close execute
the Release of Easements which is attached hereto as Exhibit"H". '
15. Easement to Walker: Purchaser agrees to grant to Burton E. Walker and Bette J.
Walker a permanent, perpetual and irrevocable non-exclusive easement for ingress and egress to
the Walkers' property, which is located southeast of the Property, as generally described in the
attached Exhibit "F-1" and depicted on the attached Exhibit "F-2". This Easement shall be 24
feet wide. The City shall construct a twelve foot wide road, with graveled surface, centered
within the easement. After construction of the Project, Purchaser shall provide the Walkers with
a centerline description of the Easement, in recordable form. The Walkers shall be and hereby
are considered third party beneficiaries of this Agreement and shall be entitled to specific
performance of the covenants contained herein.
16. Easement from Walkers to City: At closing, Burton and Bette Walker shall grant
to Purchaser a permanent, perpetual, and irrevocable easement to and across the property which
is described in the attached Exhibit "G-1", and depicted in the attached "G-2". After the
construction of the facility, this easement shall be replaced with a specifically described seventy
foot wide easement to provide access to, maintenance of, and repair of certain above-ground and
underground facilities to be located on the aforesaid Walker property. Said description, in
recordable form, shall be provided by the City to the Walkers for their signatures.
17. Condition of the Property: Purchaser hereby certifies that it has inspected the
Property, that the Property is satisfactory in its present condition and that the Property is
accepted free of any and all warranties, except as specified herein.
18. Hazardous Materials: "Hazardous materials", as that term is used herein, shall
include, but not be limited to, petroleum products and substances defined as "hazardous
substances," "hazardous materials" or "toxic substances" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.;
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.; the Toxic Substances Control
Act, 15 U.S.C. Section 2601, et seq.; the Clean Air Act, 42 U.S.C. Section 7401, et seq.; the
Clean Water Act, 33 U.S.C. Section 1251, et seq.; the Idaho Hazardous Waste Management Act
of 1983, Idaho Code Section 39-4401, et seq.; and the common law of the State of Idaho.
PURCHASE AGREEMENT-5
t
S
t
Seller warrants that there are no underground storage tanks on or in the Property. In the
event that any underground storage tanks are found on or in the Property at any time, and which
}
are found to have been in existence prior to the Closing Date, Seller hereby agrees to indemnify,
save, defend and hold harmless Purchaser from and against any and all losses, liabilities,
damages, injuries, costs, expenses and claims of any and every kind whatsoever paid, incurred or
suffered by or asserted against Purchaser for, with respect to or as a direct or indirect result of
Purchaser's removal of or the existence of said underground storage tanks, including, without
limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising
under any hazardous waste laws.
Seller hereby agrees to indemnify, save, defend and hold harmless Purchaser from and
against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and
every kind whatsoever paid, incurred or suffered by or asserted against Purchaser for, with
respect to or as a direct or indirect result of the escape, seepage, leakage, spillage, discharge,
emission, discharging or releasing into, onto or from the Property of any hazardous materials,
occurring before the date of closing, including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under any hazardous waste laws.
Purchaser hereby agrees to indemnify, save, defend and hold harmless Seller from and
against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and
every kind whatsoever paid, incurred or suffered by or asserted against Seller for, with respect to
or as a direct or indirect result of the escape, seepage, leakage, spillage, discharge, emission,
discharging or releasing into, onto or from the Property of any hazardous materials, occurring on
or after the date of closing, including, without limitation, any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any hazardous waste laws, except to
the extent that the release or discharge is a continuation of a release or discharge which first
occurred or commenced prior to the date of closing, or is related to an underground storage tank
found to have existed on or in the Property prior to closing.
19. Construction Activities: Purchaser hereby agrees to indemnify, save, defend and
hold harmless Seller from and against any and all losses, liabilities, damages, injuries, costs,
expenses and claims of any and every kind whatsoever paid, incurred or suffered by or asserted
PURCHASE AGREEMENT-6
a
against Seller for, with respect to or as a direct or indirect result of any activities associated with
the construction of the Project, except as otherwise provided herein.
20. Deposit of Funds/Closing: The City shall pay Seuberts $230,000.00 in non-
refundable earnest money on or before February 17, 2000. The balance of the purchase price,
together with any other required closing funds, shall be paid at closing, which shall occur on or
before March 5, 2000. If the City fails to close the transaction, as provided herein, then the
earnest money shall be retained by Seller as liquidated damages; provided, it is understood that
the source of the City's closing funds is the funds being paid to the City by the Bezates Land &
Cattle Co. (`Bezates"), pursuant to that certain Stipulation which has been entered into by and
f
between the City and Bezates. The City expects to have such funds in hand by March 1, 2000.
In the event that, through no fault of the City, the Bezates' funds have not been paid to the City
by March 5, 2000, then Seller shall cooperate in extending closing on such terms as are mutually
agreeable to the parties. The closing agent shall be AmeriTitle, of P.O. Box 798, Cascade, Idaho,
83611.
21. Costs: The following costs shall be paid by Purchaser: all recording costs; title j
insurance premiums; closing costs; and the costs of document preparation, which shall not
include fees incurred by Seller in the negotiation and/or review of this Agreement. The
following costs shall be paid by Seller: real property taxes for the year 1999 and any prior unpaid
years, together with taxes accrued for the year 2000 prior to closing.
22. Purchaser's Access to the Property: Purchaser shall continue to have access to the
Property prior to closing as necessary for the testing, design and planning related to the Project.
Seller shall cease mining of sand or gravel materials from the Property effective upon the
execution of this Agreement by all parties; provided, in the event that the following events occur,
then Purchaser shall provide to Seller 500,000 cubic yards of material (i.e. native sand, rock, dirt
and gravel) from the Property:
a. Purchaser closes on the purchase of the Property; and,
b. Purchaser does not construct the storage reservoir within two (2) years
after closing.
In such case, the material shall be placed on Seller's Retained Property, as provided
herein, no later than twenty-four (24) months after closing. The purpose of this provision is to
PURCHASE AGREEMENT-7
recognize that an essential element of the consideration for the purchase of the Property is the net
value to Seller of the Excess Materials which seller will receive as a by-product of the
construction of the storage reservoir.
23. Coordination of Activities: Seller and Purchaser shall cooperate in good faith
during the construction of the Project, to minimize the interference by either with the activities of
the other.
24. Time of Essence: Time is expressly declared to be of the essence in the
performance of this contract.
25. Default: Seller shall have breached this Agreement and shall be considered in
default hereunder if Seller neglects or refuses to comply with the terms or conditions of the sale
contemplated by this Agreement within five (5) days from the date on which said term or
condition is to be complied with, and Purchaser has fully complied with Purchaser's
responsibilities hereunder. In the event of such an uncured breach of this Agreement, then
Purchaser shall be entitled to specific performance by Seller of this Agreement, either by judicial
action to enforce this Agreement or by exercise of its power of eminent domain. If eminent
domain proceedings are initiated, then Seller hereby stipulates that the total reasonable
compensation, including damages, fees and costs, to which Seller is entitled for the Property, is
the purchase price agreed to herein.
Purchaser shall have breached this Agreement and shall be considered in default
hereunder if Purchaser neglects or refuses to comply with the terms or conditions of the sale
contemplated by this Agreement within five (5) days after the date on which said term or
condition is to be complied with, and Seller has fully complied with Seller's responsibilities
hereunder. In the event of such an uncured breach of this Agreement, then Seller shall be entitled
to any remedy allowed by law, including: specific performance and/or an action for damages
incurred by Seller as a result of Purchaser's breach.
26. Assignment: Neither Seller nor Purchaser shall be allowed to assign their
interests hereunder without the prior written consent of the other.
27. Modification: This Agreement may be modified with the mutual consent of the
parties, provided, however, that no such modification of this contract shall be valid or binding
unless such modification is in writing, and dated and signed by all parties.
PURCHASE AGREEMENT- 8
28. Integration:tion: This Agreement constitutes the entire agreement between the parties.
k
Neither party shall be bound by any other terms, conditions, statements, or representations, oral
or written not herein contained. Each party hereby acknowledges that in executing this contract
s
he has not been induced, persuaded, or motivated by any promise or representation made by the
other party unless expressly set forth herein. All previous negotiations, statements, and
preliminary instruments by the parties or their representatives are merged in this agreement. }
29. Non-Merger: All warranties, covenants, representations and obligations contained f.
in this agreement shall survive the closing of this transaction.
30. Attorneys Fees and Costs: If any legal action or proceeding related to this
Agreement is begun by any party to this Agreement, then the prevailing party shall be entitled to
recover its attorneys fees and costs incurred, together with witness and expert witness fees,
incurred, including attorneys fees incurred on appeal.
31. Governing Law: This Agreement is governed by the laws of Idaho, and Valley
County, Idaho is the proper venue.
32. Headings: The headings of paragraphs and articles of this Agreement are
provided as a guide to the reader, and shall not in any way affect the meaning or interpretation of
this Agreement.
33. Further Acts: Except as otherwise provided herein, in addition to the acts and
i
deeds recited in this Agreement and contemplated to be performed, executed and/or delivered by
the parties, the parties hereby agree to perform, execute and/or deliver or cause to be performed,
executed ad/or delivered any and all such further acts, deeds and assurances as any party hereto
may reasonably require to consummate the transactions contemplated under this Agreement.
This Agreement may be executed in counterpart originals; no person need have signed all
originals, so long as each party has signed at least one original.
34. Succession: This Agreement shall bind and inure to the benefit of the parties and
their respective heirs, legal representatives, successors and assigns. This Agreement shall
survive the completion of all acts contemplated herein, and shall remain in full force and effect
i
thereafter.
i
1
35. Notice: Notices between the parties may be made by personal delivery or by
>: United States mail, postage pre-paid, registered or certified, with return receipt requested, or by
PURCHASE AGREEMENT-9
6
telegram, facsimile transmission or mail-o-gram or by recognized courier delivery (e.g., Federal
Express, UPS, DHL, etc.) addressed to the parties, as the case may be, at the address set forth
below or at such other addresses, as the parties may subsequently designate by written notice
given in the manner provided in this section:
Purchaser: , City Manager
City of McCall
216 E. Park Street
McCall, ID 83638-0986
208-634-7142
208-634-3038 (facsimile)
With a copy to: City Attorney
Seller: J. P. and Cherie Seubert
P. O. Box 57
Cottonwood, ID 83522
(208) 962-3314
(208) 962-3392 (Facsimile)
With a copy to:
36. Recordation: This Agreement shall not be recorded; however, a Notice of
Agreement shall be recorded with the Valley County Recorder's Office.
SELLERS: - PURCHASERS:
CITY OF McCALL:
"J. P. SEUBERT
�-- ALLAN MULLER, Mayor
C ERIE SEUBERT
ATTEST:
By:
CATHLEEN A. KOCH,
Acting City Clerk
PURCHASE AGREEMENT- 10
VALLEY PAVIN SPH ,INC.
By:
4
s
3
CLEARWATER C T C.
B
s:
SEUBERT EX .
i �A
By: 7
s
STATE OF IDAHO, )
(ss.
County of Valley. )
On this day of 2000, before me, a Notary
Public in and for said State,personally appeared ALLAN MULLER,known or identified to me to be the Mayor,of
the City of McCall, that executed the said instrument, and acknowledged to me that such City of McCall executed
the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my offic ajSj@ 1fCland year in
this certificate first above written. Q '•'�•O;1pNC1iTf��...
cg . CG •.
NOTARY PUBI, O O—
Residing at: •
My Commission E ires P a
�$ OP
PURCHASE AGREEMENT- 1 I
s
i
STATE OF IDAHO, )
(ss.
County of Valley. )
On this da of_ , 2000, before me, (3.
y
a Notary Public in and for said State,personally appeared CATHLEEN A.KOCH,known or identified to me to be
the Clerk, of the City of McCall, that executed the said instrument, and acknowledged to me that such City of F`
McCall executed the same.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my official sea.6ti 'ao' ar in
CC IJ' • i
this certificate first above written. �tiP�..»e.�: •••.,�.
V AR Y
r
r
6
NOTARY PUB IC FO �,..�
Residing at: • G •
My Commission Expires:
•�� cry, °•e•e••ee 9�•�''
� •
` .igTE 0V o�
STATE OF IDAHO,
(ss. f
County of )
QQ
On this day of , 2000, before me, a
Notary Public in and for said State, personally appeared J. P. SEUBERT, known or identified to me to be the
person whose name is subscribed to the within instrument,and acknowledged to me that he executed the same.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my offi;l1' �An%,ar in
this certificate first above written. �r• �.�
pRY 4
NOTARY PUBL C FOY I 00—
Residing at.
My Commission Expire-, FWA ••
STATE OF IDAHO, ) .......
(ss.
(ss.
County of )
On this day of 2000, before me, �. t a
Notary Public in and for said State,personally appeared CHERIE SEUBERT,known or identified to me to be the
person whose name is subscribed to the within instrument,and acknowledged to me that she executed the same.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my official seal the day and year in
this certificate first above written. v,.. 14 HEM,?!•,••,
•'•.
NOTARY PUBLIC FO I ' 6
Residing at: i /-
My Commission Sj*r1,:
O :
•
•••11f��N��h��
PURCHASE AGREEMENT- 12
STATE OF IDAHO, )
(ss.
County of
On this day ,�� 2000, before me, a
/ �� �•�/
Notary Public in and for said State,personally appeared ,j. P• , known or identified
to me to be the l�rt4;c+�,^ � of VALLIkY PAVING& ASPHALT,INC., the corporation ..
that executed the instrument or the person who executed the instrument on behalf of said corporation, and
acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my official jgWjje4day and year in
this certificate first above written. ,•••°�tyCH �' �'►•4
J
NOTARY PUB'L�r/
Residing at: /
My Commission Ei PIA: 0�
STATE OF IDAHO, ) =`Pa ?" OF,•`�`
�Qaeu�n�
(ss.
County of
U XdCL�-
On this day of , 2000,before me, ' -f '— ,a
Notary Public in and for said State, personally appeared j ?. S•r 4 , known or
identified to me to be the S+d#,A 4 of CLEARWATER CONCRETE, IN the
corporatioifthat executed the instrument or the person who executed the instrument on behalf of said corp ation, F
and acknowledged to me that such corporation executed the same. A N J 6,41 A 0066�0
IN WITNESS WHEREOF,I have hereunto set my hand and affixed me�, �iIqV ay and year in
3
this certificate first above written. �.•� S' ••" �')►�'
i
NOTARY P O
Residing at:
My Commis sioi�,) pi s:
OF I
PURCHASE AGREEMENT- 13