REAL ESTATE SALES AGREEMENT

Transcription

1 REAL ESTATE SALES AGREEMENT THIS REAL ESTATE SALES AGREEMENT (the Agreement ) is made and entered into as of the Effective Date hereof by and between the BIBB COUNTY SCHOOL DISTRICT, a political instrumentality of the State of Georgia ("Seller"),, ("Buyer"), and JONES CORK & MILLER LLP, a Georgia limited liability partnership ( Escrow Agent ). RECITALS (a) Seller has accepted Buyer s bid to purchase the real property and improvements located thereon, together with fixtures attached thereto and used in connection therewith, if any, known as the Alexander IV Elementary School Campus, said real property being more particularly described on Exhibit A attached hereto and incorporated herein by reference (the Property ), and Seller, Buyer and Escrow Agent desire to enter into this Agreement to evidence the terms, provisions and conditions of such accepted bid. AGREEMENT In consideration of the mutual covenants and promises of the parties hereto, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Seller, Buyer and Escrow Agent agree as follows: 1. Sale of Premises. Seller agrees to sell and convey the Property to Buyer, and Buyer agrees to purchase the Property from Seller, upon the terms and conditions contained herein. 2. Deposit. Buyer has heretofore paid to Escrow Agent the amount of $ in cash or certified funds on the date of the Escrow Agent s acceptance of the Buyer s bid (the Deposit ). The Deposit shall be held by Escrow Agent as earnest money under this Agreement to be applied to the Purchase Price of the Property at the time of closing. 3. Purchase Price. The purchase price of the Property shall be $ (the Purchase Price ) to be paid by Buyer at closing as hereinafter provided, as the amount thereof may be adjusted to complete payment of the Purchase Price after prorations as hereinafter provided, upon delivery of the deed as hereinafter provided. 4. Closing. Subject to the curative periods set forth in the Title Insurance and Survey paragraphs and all conditions as herein provided, this sale shall be closed and the deed shall be delivered on or before the forty-fifth (45 th ) day following the Effective Date of this Agreement. This sale and purchase shall be closed at the offices of Jones Cork & Miller LLP, 5th Floor, SunTrust Bank Building, 435 Second Street, Macon, Georgia Deliveries by Seller at Closing. At closing, Seller will deliver to Buyer a good and sufficient recordable fee simple deed conveying the Property subject only to the Permitted Exceptions and such other documents as shall be reasonably required by Buyer or Buyer s title insurance company as a condition of insuring Buyer s title to the Property with only standard 1

2 title insurance exceptions. Seller will deliver to Buyer on the closing a bill of sale for any personal property sold. 6. Deliveries by Buyer at Closing. At closing, Buyer shall deliver to Seller any closing documents required to be executed by Buyer pursuant to this Agreement, and to Seller's designated account, the amount payable by Buyer at closing, in good and immediately available funds, by Federal Reserve Bank wire transfer to such account and bank as Seller shall designate in writing to Buyer prior to closing, or by such other means as shall be acceptable to Buyer, and to any other parties, the amounts in payment of the loss and expenses incident to the closing as set forth in the closing statement executed at closing. 7. Title Insurance. (a) Buyer may obtain, at Buyer s election and expense and within thirty (30) days following the Effective Date of this Agreement, a title insurance commitment (the Commitment ) to issue an ALTA Owner s Title Insurance Policy in the amount of the Purchase Price from a title insurance company (the Title Insurance Company ) selected by Buyer. (b) In the event the Commitment does not show good, marketable and insurable fee simple title to the Property to be vested in Seller, subject only to (A) the title exceptions set forth in Exhibit B attached hereto and incorporated by reference, (B) liens, encumbrances, exceptions and qualifications which in Buyer s reasonable judgment do not interfere with or impair Buyer s intended use of the Property, (C) exceptions permitted by the provisions of this Agreement, and (D) those exceptions which are capable of and are actually to be discharged by Seller at or before closing pursuant to the terms of this Agreement (collectively, the Permitted Exceptions ), then and in that event Buyer shall, on or before thirty (30) days following the Effective Date, notify Seller in writing to that effect specifying such defects (the Title Defects ). Should Buyer fail to notify Seller of any Title Defects within such period, Buyer shall be deemed to have waived any such Title Defects. Any Title Defects that are waived or accepted by Buyer shall also constitute a Permitted Exception to title. Seller shall have fifteen (15) days from receipt of such notice ( Seller s Title Cure Period ) to either agree to cure such defects or provide written notice to Buyer that Seller will not cure any such Title Defect. The failure of Seller to provide written notice, on or before the expiration of Seller s Title Cure Period, of Seller s agreement to cure any Title Defect shall constitute Seller s election not to cure such Title Defect. If Seller elects not to cure the Title Defects or if Seller is unable to cure the Title Defects, Buyer, as its sole and exclusive remedy, shall have the option of (i) accepting the title subject to the Title Defects without a reduction in the Purchase Price, or (ii) terminating this Agreement within five (5) days after the expiration of Seller s Title Cure Period, whereupon Seller shall forthwith return the Deposit to Buyer, and thereupon Buyer and Seller shall each be released from all further obligations to each other respecting matters arising from this Agreement, except with regard to such provisions as expressly provide for survival of termination. Buyer s failure to terminate this Agreement within five (5) days after the expiration of Seller s Title Cure Period shall result in Buyer s waiver of its uncured objections to title, its agreement to accept title subject to such Title Defects and its agreement to close on or before the date specified in Paragraph 4 hereinabove. 2

3 (c) Seller hereby agrees that Seller shall satisfy or cure all taxes, mortgages, deeds of trust, mechanic's or materialmen's liens or other such monetary encumbrances ("Monetary Defects"), and shall satisfy or cure all Title Defects created by Seller and arising after the Effective Date. 8. Survey. Buyer may obtain, at its election and expense and within thirty (30) days following the Effective Date of this Agreement, a survey of the Property (herein "Survey") prepared by a surveyor of Buyer s choice (herein "Surveyor"). The Survey shall (a) be accompanied by a certificate to Buyer and Buyer's title insurer in standard form required by the title insurer, (b) correctly show the boundaries of the Property, the location of and identity of all visible easements and rights-of-way across, serving or abutting the Property, and all recorded easements to the extent they affect the Property (including all off-site easements affecting the Property), and (c) contain a correct calculation of the exact acreage of the Property calculated to the nearest 1/100th of an acre. If said Survey shows any encroachments onto the Property or from the Property onto adjoining lands or any other facts that affect the marketability of the Property, Buyer shall, on or before the thirtieth (30th) day following the Effective Date hereof, notify Seller in writing to that effect specifying such defects (the Survey Defects ). Should Buyer fail to notify Seller of any Survey Defects on or before the thirtieth (30th) day Buyer shall be deemed to have waived such Survey Defects. Any Survey Defects that are waived or accepted by Buyer shall also constitute a Permitted Exception to title. Seller shall have fifteen (15) days from receipt of such notice ( Seller s Survey Cure Period ) to either agree to cure such defects or provide written notice to Buyer that Seller will not cure the defects. The failure of Seller to provide written notice, on or before the expiration of Seller s Survey Cure Period, of Seller s agreement to cure any Survey Defect shall constitute Seller s election not to cure such Survey Defects. If Seller elects not to cure the Survey Defects or if Seller is unable to cure the Survey Defects, Buyer, as its sole and exclusive remedy, shall have the option of (i) accepting the Property as is without a reduction in the Purchase Price, or (ii) terminating this Agreement within five (5) days after the expiration of Seller s Survey Cure Period, whereupon Seller shall forthwith return the Deposit to Buyer, and thereupon Buyer and Seller shall each be released from all further obligations to each other respecting matters arising from this Agreement, except with regard to such provisions as expressly provide for survival of termination. Buyer s failure to terminate this Agreement within five (5) days after the expiration of Seller s Survey Cure Period shall result in Buyer s waiver of its uncured objections to the Survey and its agreement to close on or before the date specified in Paragraph 4 hereinabove. 9. Possession. Seller agrees to deliver absolute and exclusive occupancy and possession of the Property to Buyer on the date of closing the purchase and sale contemplated by this Agreement. 10. AS IS CONDITION; INSPECTION. BUYER ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN AS IS, WHERE IS CONDITION WITHOUT RECOURSE, REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF HABITABILITY, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, AND INCLUDING WITH REGARD TO HAZARDOUS WASTES, SUBSTANCES OR MATERIALS, INCLUDING ASBESTOS AND LEAD BASED PAINT. BUYER FURTHER ACKNOWLEDGES AND AGREES FOR 3

4 BUYER AND BUYER S HEIRS, EXECUTORS, ADMINISTRATORS, REPRESENTATIVES, SUCCESSORS, SUCCESSORS-IN-TITLE AND ASSIGNS, THAT BUYER HAS BEEN GIVEN A REASONABLE OPPORTUNITY TO INSPECT AND INVESTIGATE THE PROPERTY AND ALL IMPROVEMENTS THEREON EITHER INDEPENDENTLY OR THROUGH AGENTS OF BUYER S CHOOSING, AND THAT IN PURCHASING THE PROPERTY BUYER IS NOT RELYING ON SELLER OR ITS AGENTS AS TO THE CONDITION OF THE PROPERTY AND/OR ANY IMPROVEMENTS THEREON, INCLUDING, BUT NOT NECESSARILY LIMITED TO, ELECTRICAL, PLUMBING, HEATING, AIR CONDITIONING, SEWERAGE OR MECHANICAL SYSTEMS OR EQUIPMENT, STRUCTURAL, ROOF, FOUNDATION, EQUIPMENT, SOILS AND GEOLOGY, OR SUITABILITY OF THE PROPERTY AND/OR ITS IMPROVEMENTS FOR PARTICULAR PURPOSES, OR THAT THE PROPERTY AND ANY HEATING, VENTILATING AND/OR AIR CONDITIONING EQUIPMENT OR SYSTEMS, PLUMBING AND/OR UTILITIES ARE OPERATING OR IN SOUND CONDITION AND/OR ARE IN COMPLIANCE WITH ANY CITY, COUNTY, STATE AND/OR FEDERAL STATUTES, CODES, ORDINANCES OR REGULATIONS. THE CLOSING OF THIS TRANSACTION WILL CONSTITUTE AN ACKNOWLEDGEMENT AND AGREEMENT BY BUYER THAT THE PROPERTY AND ALL IMPROVEMENTS THEREON ARE ACCEPTED WITHOUT RECOURSE, REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE, EXPRESSED OR IMPLIED, AND IN AN AS IS, WHERE IS CONDITION BASED ON BUYER S OWN INSPECTION. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, THE PROVISIONS OF THIS PARAGRAPH 10 SHALL NOT MERGE INTO THE DOCUMENTATION DELIVERED AT THE CLOSING BUT SHALL SURVIVE THE CLOSING. 11. Prorations. Water, sewer, fuel and other utility charges, insurance, and other customary matters, if any, shall be prorated between the parties on the closing. 12. Costs. Seller shall pay (i) for all required real estate transfer tax payable upon recording of the deed of conveyance, (ii) for recording any and all documents to cure any defects in title, and (iii) Seller s attorneys fees. Buyer shall pay for (i) recording said deed of conveyance and (ii) Buyer s attorneys fees. 13. Risk of Loss. In the event that all or a material portion of any improvements on the Property are damaged by fire or other casualty and are not restored or repaired to their then existing condition prior to closing, then, at the option of Buyer, either (a) Seller shall pay the Deposit to Buyer and this Agreement and all rights and obligations hereunder shall immediately terminate, or (b) the purchase and sale contemplated hereby shall be closed as provided herein except that Seller shall at closing assign to Buyer all of Seller's interest in any and all insurance proceeds received or receivable by reason of such casualty. 14. Remedies in Event of Default. (a) Remedies of Seller. In the event all conditions of this Agreement are satisfied and in the event all covenants and agreements to be performed at or before closing by Seller are fully performed, and the sale is not consummated through default on the part of the Buyer on the 4

5 Date of closing, Seller may terminate this contract by written notice to Buyer, in which case the Deposit shall be paid to Seller by Escrow Agent as liquidated damages for the Buyer's default. The amount of the Deposit is agreed upon by and between Seller and Buyer as liquidated damages, due to the difficulty and inconvenience of ascertaining and measuring actual damages, and the uncertainty thereof, and no other damages, rights or remedies shall in any case be collectable, enforceable or available to Seller for Buyer's default described in this Paragraph, it being specifically acknowledged and agreed by Seller and Buyer that such liquidated damages are reasonable. Seller hereby expressly waives any and all rights to specific performance. Upon such termination all rights and obligations of the parties under this Agreement shall be terminated. (b) Remedies of Buyer. In the event Seller fails to consummate this Agreement for any reason, other than Buyer's default or the termination of this Agreement by Buyer pursuant to the express termination provisions contained herein, or Title Defects or Survey Defects which are not waived by Buyer and cannot be cured by Seller pursuant to Paragraphs 8 and 9 hereinabove, respectively, Buyer may terminate this Agreement, in which case the Deposit shall be promptly delivered to Buyer and thereafter neither party shall have any further rights or obligations under this Agreement, or Buyer may seek specific performance of this Agreement. 15. Brokerage. Seller and Buyer each represent and warrant to the other that there are no real estate brokers, finders or other persons or entities involved with this transaction that are entitled to a real estate commission, finder's fee or other fee. Seller and Buyer each hereby indemnifies and agrees to hold harmless the other against any claim of any broker, finder or other person or entity claiming a real estate commission or fee in connection with this sale by, through or under such indemnifying party, including all costs and reasonable attorneys' fees expended by the party so indemnified in the defense of any such claim. 16. Survival. It is understood and agreed that whether or not it is specifically so provided herein, any provision of the Agreement which by its nature and effect is required to be observed, kept or performed after the closing of the purchase of the Property as herein provided shall survive the closing of the purchase of the Property as herein provided and the delivery of the deed hereunder, and shall not be merged therein but shall remain binding upon and for the benefit of the parties hereto and their respective successors and assigns until fully observed, kept or performed. 17. Notices. Any notice or demand that may be given hereunder shall be deemed complete (i) upon depositing any such notice or demand in the United States mail with proper postage affixed thereto, certified, return receipt requested, or (ii) upon depositing any such notice or demand with an expedited mail or package delivery service, or (iii) upon hand-delivery to the appropriate address provided below. Any party hereto may change said address by notice in writing to the other parties in the manner herein provided. 5

6 If to Seller: Bibb County School District Attention: Superintendent 484 Mulberry Street Macon, GA If to Buyer: 18. Escrow Agent. (a) In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for damages, losses or expenses, except for willful default or breach of trust, and it shall accordingly not incur any such liability with respect to (a) any action taken or omitted in good faith upon advice of its legal counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Agreement, or (b) any action taken or omitted in reliance upon any instrument, including any written notice or instruction provided for in this Agreement, not only as to its due execution and the validity and effectiveness of its provisions but also as to the trust and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a proper person or persons, and to conform with the provisions of this Agreement. (b) Notwithstanding any provision of this Agreement to the contrary, in the event of a dispute between Buyer and Seller sufficient in the sole discretion of Escrow Agent to justify its doing so or in the event that the Escrow Agent has not disbursed the Deposit on or before thirty (30) days following the closing date as provided in Paragraph 4 hereof, Escrow Agent shall be entitled to tender into the registry or custody of any court of competent jurisdiction the Deposit, together with such legal pleadings as it may deem appropriate, and thereupon be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in such court as Escrow Agent shall determine to have jurisdiction thereof. (c) Buyer and Seller hereby agree to indemnify and hold Escrow Agent harmless against any and all losses, claims, damages, liabilities, and expenses, including, without limitation, reasonable costs of investigation and legal counsel fees, which may be imposed upon Escrow Agent or incurred by Escrow Agent in connection with the performance of its duties hereunder, including, without limitation, any litigation arising from this Agreement or involving the subject matter thereof. 19. Miscellaneous. (a) No agreements, unless incorporated in this Agreement, shall be binding upon the parties hereto. 6

7 (b) Buyer may not assign this Agreement or any of its rights hereunder without the prior written consent of Seller. (c) In computing any period of time prescribed by the terms of this Agreement, the day from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday; in which event the period shall run until the end of the next day which is not a Saturday, Sunday or legal holiday. In the event any day on which any act is to be performed by Seller or Buyer under the terms of this Agreement is a Saturday, Sunday or legal holiday, the time for the performance by Seller or Buyer of any such act shall be extended to the next day which is not a Saturday, Sunder or legal holiday. "Business Days" are defined as Monday through Friday exclusive of legal holidays. (d) This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument; and any party or signatory hereto may execute this Agreement by signing any such counterpart. (e) This Agreement shall be binding upon and its benefits and advantages shall inure to the heirs, executors, administrators, legal representatives, successors and assigns of the parties hereto. Whenever used herein the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders. (f) The Effective Date of this agreement shall be deemed to be the date of the last to execute this Agreement of Buyer and Seller, as shown by the dates set forth opposite the places provided for their execution. (g) Time is of the essence in complying with the terms, conditions and agreements of this Agreement. Georgia. (h) This Agreement shall be construed in accordance with the laws of the State of (i) This Agreement contains the entire agreement and understanding between the parties and is subject to no understandings, conditions or representations that are not set forth herein. (j) This Agreement may only be amended in writing and signed by both parties. Time is of the essence in the performance of this Agreement. (k) In the event that more than one person or entity shall execute this Agreement as Seller or Buyer, each such person or entity shall be jointly and severally liable for the performance of every term and condition of this Agreement. (l) If any provision of this Agreement shall be invalid or unenforceable, the remaining provisions shall remain in full force and effect. (m) The captions in this Agreement are inserted only for convenience and in no way construe or interpret the provisions hereof or affect their scope or intent. 7

8 20. Riders and Exhibits. The riders and exhibits, if any, attached hereto and initialed by the parties are made a part of this Agreement. THIS IS A BINDING LEGAL CONTRACT. IF ANY PROVISIONS ARE NOT UNDERSTOOD, CONSULT AN ATTORNEY BEFORE SIGNING. [FOR EXECUTIONS SEE FOLLOWING PAGES] 8

9 IN WITNESS WHEREOF, the parties have hereunto set their hands and affixed their seals as of the date and year shown below. Signed, sealed and delivered in the presence of: Notary Public, State of Georgia [NOTARY SEAL] SELLER: BIBB COUNTY SCHOOL DISTRICT By: Susan K. Sipe Board President Attest: E. Steven Smith, Ph.D. Superintendent Executed by Seller on, [EXECUTIONS CONTINUED ON FOLLOWING PAGE] 9

10 Signed, sealed and delivered in the presence of: Notary Public, State of Georgia BUYER: By: Name: Title: [NOTARY SEAL] Executed by Buyer on, [EXECUTIONS CONTINUED ON FOLLOWING PAGE] 10

11 Signed, sealed and delivered in the presence of: Notary Public, State of Georgia [NOTARY SEAL] ESCROW AGENT: JONES CORK & MILLER LLP By: Steve L. Wilson Partner Executed by Escrow Agent on,

12 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY All those tracts or parcels of land lying and being in the City of Macon, Bibb County, Georgia, and being more particularly described as follows: 1. That certain real property conveyed by the warranty deed from Roy W. Crockett to the Board of Public Education and Orphanage for Bibb County dated December 12, 1931 and recorded in Deed Book 401, Page 57, Clerk s Office, Bibb Superior Court. Said deed is incorporated herein by reference for a description of the real property conveyed thereby. 2. That certain real property conveyed by the warranty deed from Mrs. Sara C. Bernstein to the Board of Public Education and Orphanage for Bibb County dated March 3, 1949 and recorded in Deed Book 586, Page 303, Clerk s Office, Bibb Superior Court. Said deed is incorporated herein by reference for a description of the real property conveyed thereby. There are specifically excepted and excluded from the properties described hereby the following described properties, to wit: (a) That certain real property conveyed by the warranty deed from the Board of Public Education and Orphanage for Bibb County to Mrs. Sara C. Bernstein dated March 3, 1949 and recorded in Deed Book 586, Page 345, Clerk s Office, Bibb Superior Court. Said deed is incorporated herein by reference for a description of the real property conveyed thereby. (b) That certain real property conveyed by the quitclaim deed from the Board of Public Education & Orphanage for Bibb County to the City of Macon undated but filed of record on May 9, 1957 and recorded in Deed Book 751, Page 529, Clerk s Office, Bibb Superior Court. Said deed is incorporated herein by reference for a description of the real property conveyed thereby. (c) That certain real property conveyed by the quitclaim deed from the Board of Public Education and Orphanage for Bibb County to the City of Macon dated August 31, 1963 and recorded in Deed Book 907, Pages , Clerk s Office, Bibb Superior Court. The survey referred to in said deed is recorded in Plat Book 37, Page 105, said Clerk s Office. Said deed is incorporated herein by reference for a description of the real property conveyed thereby. The property described above is further described as being bounded on the southwest by the right-of-way of Ridge Avenue, on the southeast, east and northeast by the right-of-way of Drury Drive, and on the northwest by the right-of-way of Roycrest Drive. 1

13 EXHIBIT B TITLE EXCEPTIONS 1. Encroachments, overlaps, boundary line disputes, and any matters not of record which would be disclosed by an accurate survey and inspection of the premises. (Note: Nothing herein shall affect the provisions of Paragraph 8 of this Agreement or Buyer s rights thereunder.) 2. The previous acquisition by Bibb County, Georgia, the City of Macon, Georgia, or any other governmental entity of any portion of the Property described in Exhibit A attached hereto as additional right-of-way for the expansion of any public roadway adjoining the Property, and the resulting encroachment of such public roadway into the Property. 1