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1945ORDINANCE NO. ~S AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR THE PURCHASE OF APPROXIMATELY 9.75 ACRES OF REAL PROPERTY, APPROVING THE AGREEMENT FOR PURCHASE, DECLARING AN EMERGENCY AND FOR OTHER PURPOSES. WHEREAS, Arkansas Code Annotated Section 14-58-303 authorizes the waiving of ~ competitive bidding in exceptional situations where competitive bidding is deemed not feasible or k practical; and WHEREAS, the City of West Memphis and the West Memphis Municipal Airport Commission received funds through a Federal Aviation Administration grant for property acquisition for the purpose of acquiring property within certain approach areas of the municipal airport; and WHEREAS, the City of West Memphis has entered into negotiations with the owners of approximately 9.75 acres for the city to purchase said property on such terms and conditions as substantially set out in the Real Estate Purchase Agreement attached hereto; and WHEREAS, the City Council determines that competitive bidding should be waived because such real property is unique and competitive bidding under such circumstances would not be feasible or practical; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS, ARKANSAS THAT: SECTION 1. Competitive bidding is hereby waived for the purchase of approximately 9.75 acres of real property on the terms and conditions as set out and described in the Real Estate Purchase Agreement attached hereto and incorporated herein. SECTION 2. The Real Estate Purchase Agreement is hereby approved in substantially the form as attached hereto and the Mayor and the City Clerk are hereby authroized to execute such agreement on behalf of the City of West Memphis and any and all other documents as may be necessary or required to complete this transaction. SECTION 3. All Ordinances or parts of Ordinances in conflict herewith are hereby repealed. SECTION 4. EMERGENCY CLAUSE. It having been found and determined by the City Council of the City of West Memphis, Arkansas, that an urgent and immediate need exists to obtain the authority to acquire this real property in order to comply with the time constraints as imposed pursuant to the FAA grant which provides the source of the funds for this property acquisition, an emergency is hereby declared, and this ordinance being necessary for the preservation of the peace, health, safety and welfare of the citizens of West Memphis, Arkansas, shall be in full force and effect from and after the date of its passage and approval. PASSED AND APPROVED this day of ~~ c,~, 2000. WILLIAM H. JOHNS ,Mayor ATTEST: PHI ,City Clerk SPONSORED BY: ~,~.~~ DECEIVED CITY CLERKS OFFICE DATE `! °J , ~ ~ ~SarrJ FRDM ~~~~~ REAL ESTATE PURCHASE AGREEMENT THIS REAL ESTATE PURCHASE AGREEMENT (this "Agreement") is made and entered into by and between Ottis Chadwick and Naomi Chadwick, husband and wife, and James Hood and Sharon J. Hood, husband and wife, (the "Sellers"), and The City of West Memphis, Arkansas, an Arkansas municipal corporation (the "Purchaser"). WITNESSETH: WHEREAS, Sellers are the fee simple owners of an approximately 9.75 acre parcel of real property located in Crittenden County, Arkansas, as more particularly described as follows: Lot 3, J.C. Rainer Subdivision of the south'/z of Section 10, Township 6 North, Range 8 East, as shown by plat of record in Plat Book 2 at Page 13 in the records of the Circuit Court Clerk and Recorder for Crittenden County, Arkansas; hereinafter referred to as the "Property"; and WHEREAS, Purchaser desires to purchase the Property and Purchaser and Sellers desire to execute this Agreement to further set forth the terms and conditions upon which Sellers shall sell to Purchaser, and Purchaser shall acquire from Sellers, the Property; and WHEREAS, Purchaser is duly authorized to enter into this Agreement pursuant to Ordinance No. adopted by the West Memphis City Council on the day of X000; NOW, THEREFORE, for and in consideration of the premises, the mutual covenants and agreements herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the parties hereto, for themselves and their respective heirs, successors and assigns, do hereby covenant and agree as follows: 1. Agreement to Buy and Sell. Sellers agree to sell to Purchaser, and Purchaser agrees to purchase from Sellers, the Property, in the manner and upon the terms and conditions hereinbelow set forth in this Agreement. 2. Purchase Price. The purchase price to be paid by Purchaser to Sellers for the Property (the "Purchase Price") is Ninety Thousand and No/100 ($90,000.00). The Purchase Price, subject to any adjustments and prorations hereinbelow provided, shall be paid by Purchaser to Sellers at the Closing in cash or by certified or cashier's check. In addition to the Purchase Price, the Purchaser hereby agrees to pay and the Sellers agree to accept the sum of Twenty-two Thousand Five Hundred and No/100 ($22,500.00) as relocation expenses. The relocation expenses shall be paid by the Purchaser to Sellers at the Closing in cash or by certified or cashier's check. ;. S',los~gg and Closing Date. (a) Subject to the terms hereof, including satisfaction of the conditions contained herein, and subject to extension as herein provided, the Closing shall occur on or before August 31, 2000, (the "Closing Date"). ,The Closing shall be held at West Memphis City Hall, 205 South Redding, West Memphis, Arkansas, or at such other location as may be agreed to by the parties. (b) At the Closing, Sellers shall execute and deliver to Purchaser a Warranty Deed in a ~, form acceptable to Purchaser (the "Deed") conveying to Purchaser fee simple, marketable title to the Property, free and clear of all liens, special assessments, easements, reservations, restrictions and encumbrances whatsoever, excepting only any title defects or other matters subject to which ~ Purchaser has agreed in writing to accept title, together with such easements and other rights as are necessary to provide to Purchaser all of the benefits to which Purchaser is entitled under this Agreement. All real and personal property ad valorem taxes and special assessments payable therewith, and the St. Francis Levee District Assessment, which are due and payable on the Property, as of the Closing Date shall be paid by Sellers at the Closing. All taxes, including but not limited to, ad valorem taxes and special assessments payable therewith, which are currently a lien but which are not payable on the Property until after the Closing Date, and the St. Francis Levee District Assessment, which is currently a lien but which is not due and payable until after the Closing Date, will be prorated as of the Closing Date. At the Closing, Sellers shall also pay for Arkansas deed stamps to be affixed to the Deed, if any; Sellers' attorney's, title abstractor's, Escrow Agent's fee, if any; the premiums for Purchaser's title insurance commitment and title insurance policy. Sellers and Purchaser agree that such documents as may be legally necessary to carry out the terms of this Agreement shall be executed and delivered by such parties at the time of Closing, including without limitation, (i) an owner's affidavit and indemnification agreement satisfactory to Purchaser and Purchaser's title insurer which provides that all labor and materials previously furnished to the Property have been paid for and agreeing to indemnify Purchaser and such title insurer against all loss from any cause or claim arising therefrom (it being understood and agreed that Sellers shall also obtain at Sellers' expense any such lien waivers or affidavits from any contractors, surveyors, or materialmen as may be required by Purchaser's title insurer) ~ and (ii) a certificate duly executed by Sellers and certifying that Sellers are not foreign persons for purposes of the Foreign Investment in Real Property Tax Act, as revised from time to time, which certificate shall include each Seller's taxpayer identification number and address 4. Warranties and Representations of Sellers. To induce Purchaser to enter into this Agreement and to purchase the Property as herein provided, Sellers do hereby expressly warrant and represent to Purchaser the following: (a) That Sellers own fee simple, mazketable, record title to the Property, free and clear of all liens, special assessments, easements, reservations, restrictions and other encumbrances; (b) That Sellers have not received any notice, and have no knowledge, that the Property or any portion or portions thereof is or will be subject to or affected by any special assessments, 2 whether or not presently a lien thereon; (c) That there are no actions, suits or proceedings of any kind affecting the Property or any portion thereof, or relating to or arising out of the ownership of the Property, with the exception of case number CIV-91-436 filed in the Circuit Court of Crittenden County, Arkansas, and that there is no proceeding pending for a change in the assessed valuation of the Property; (d) That Sellers have no knowledge or notice that any present default or breach exists under any agreements, covenants, conditions, restrictions, rights-of--way or easements which may affect the Property or any portion or portions thereof which are to be performed or complied with ' by the owner of the Property, and that to the best of Sellers' knowledge no condition or circumstance exists which, with the passage of time and/or the giving of notice, or otherwise, could constitute a default or breach under any such agreements, covenants, conditions, restrictions, rights-of--way or easements; (e) That except for Purchaser no person, firm or other legal entity whatsoever has any right or option whatsoever to acquire the Property or any portion or portions thereof or any interest or interests therein; (t) That the execution and delivery of this Agreement and the consummation of the transactions contemplated herein shall not and do not constitute a violation or breach by Sellers of any provision of any agreement or other instrument to which Sellers are a party or to which Sellers may be subject althouUh not a party, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against Sellers; (~) That to Sellers' best knowledge no hazardous waste, hazardous substances, hazardous material, toxic substances, hazardous air pollutants or toxic pollutants (as defined under applicable State and Federal environmental laws) (collectively, "Hazardous Substances") have been or shall, prior to Closing, be discharged, disbursed, released, stored, treated, generated, disposed of or allowed to escape on the Property; that no asbestos or asbestos-containing materials have been installed, used, incorporated into or disposed of on the Property or any improvements located thereon; and that no investigation, administrative order, consent order and agreement, litigation or settlement with respect to any such materials described in this paragraph is proposed, threatened, anticipated or in existence with respect to the Property; (h) That Sellers are not "foreign persons" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended from time to time; (i) That no notice or information has been received by Sellers indicating that the Property is in violation of any applicable laws, statutes, rules, regulations or ordinances of any governmental agency or body; (j) That all ad valorem taxes on the Property through the year 1999 have been paid and all special assessments payable therewith through the year 1999 have been paid; that all ad valorem taxes on the Property for the year 2000 and all special assessments payable therewith and the 2000 St. Francis Levee District assessment are not yet due and payable and shall be prorated between Seller and Purchaser at Closing; (k) That Sellers have not entered into any agreement with reference to the Property (including, but not limited to, leases, maintenance agreements, or management agreements), and neither Sellers nor the Property are subject to any claim, demand, suit, unfiled lien, proceeding or litigation of any kind, pending or outstanding, threatened or likely to be made or instituted, which would in any way be binding upon Purchaser or its assigns' full use and enjoyment of the Property or which would limit or restrict in any way Sellers' right or ability to enter into this Agreement and consummate the sale and purchase contemplated hereby; (1) That there are no parties in possession of any portion of the Property, as tenants, licensees, tenants at sufferance or trespassers, other than the parties hereto and that as of the Closing Date such individuals will not be in possession and will have no rights to any portion of the Property; (m) That each and every one of the foregoing representations and warranties is true and correct as of the date hereof, will remain true and correct throughout the term of this Agreement, and will be true and correct as of the Closing Date. Covenants and Agreements of Sellers. Sellers hereby covenant and agree as follows: (a) That Sellers will perform all of Sellers' obligations set forth in this Agreement, time being of the essence; (b) That from and after the Contract Date until the Closing Date, Sellers shall not, without the prior written consent of Purchaser, grant or otherwise' create or consent to the creation of any easement, restriction, lien, assessment, encumbrance or lease or occupancy agreement affecting I~„ the Property or any portion or portions thereof; (c) That prior to the Closing, and until physical possession of the Property has been delivered unto Purchaser, Sellers will keep and maintain, or shall cause to be kept and maintained, all of the Property in good order and condition, and that Sellers will not permit any waste with respect thereto, and will not permit any construction of improvements thereon; (d) That Sellers agree to indemnify and hold Purchaser harmless from any loss, cost, expense or damage suffered or incurred by Purchaser as a result of any covenant, representation or warranty made by Sellers herein being untrue; provided that any such covenant, representation or warranty made to the best of Sellers' knowledge shall not be considered untrue unless such covenant, representation or warranty was untrue to the best of Sellers' knowledge; 4 (e) That Sellers represent and warrant that, to the best of Sellers' knowledge, that no Hazardous Substances are present in, on or under the Property in violation of applicable federal, state or local laws, statutes, rules, regulations, orders or ordinances; (f) That if Sellers receive or become aware of any notices of violations of any federal, state or municipal or other health, building, zoning, safety, or other applicable code, law, ordinance, rule or regulation now or hereafter existing and relating or applying to the Property, then Sellers shall notify Purchaser in writing of same within seven (7) days, or in any case before Closing, (g) Title to the Property must be delivered at Closing by a warranty deed in recordable form with full covenants and warranties, conveying indefeasible, fee simple, marketable and insurable title to the Property, subject only to matters agreed to in writing by Purchaser; 6. Defaults. (a) In the event that Sellers should fail to consummate the transaction contemplated herein for any reason, except Purchaser's default; (i) Purchaser may enforce specific performance of this Agreement in a court of competent jurisdiction and in such action shall have the right to recover damages suffered by Purchaser by reason of the delay in the acquisition of the Property, or (ii) may brim suit for damages for breach of this Agreement. All rights, powers, options or remedies afforded to Purchaser either hereunder or by law shall be cumulative and not alternative and the exercise of one right, power, option or remedy shall not bar other rights, powers, options or remedies allowed herein or by law. (b) In the event Purchaser should fail to consummate the transaction contemplated herein for any reason, except default by Sellers or the failure of Sellers to satisfy any of the conditions to Purchaser's obligations, as set forth herein, Sellers shall be entitled to recover the sum of One Hundred and No/100 Dollars ($100.00), such sum being agreed upon as liquidated damages for the failure of Purchaser to perform the duties and obligations imposed upon it by the terms and provisions of this Agreement and because of the difficulty, inconvenience and uncertainty of ascertaining actual damages, and no other damages, rights or remedies shall in any case be collectible, enforceable or available to Sellers other than as provided in this Section, and Sellers agree to accept and take said liquidated damages as Sellers' total damages and relief hereunder in such event. 7. Possession of Property. Sellers shall deliver to Purchaser full and exclusive possession of the Property as of the Closing Date. 8. Real Estate Commission -Purchase of the Property. Sellers hereby represent and warrant to Purchaser that Sellers have not engaged or dealt with any agent, broker or finder in regard to this Agreement or to the sale and purchase of the Property contemplated hereby. 9. ~. Notices. Any notices which may be permitted or required hereunder-shall be in writing and shall be deemed to have been duly delivered as of the date and time the same are received. Notices shall be delivered either by Federal Express or other similar overnight delivery or courier service, or by United States mail, via certified mail, postage prepaid, return receipt requested, and addressed as follows: SELLERS: Ottis Chadwick, Naomi Chadwick, James Hood and Sharon J. Hood West Memphis, AR 72301 PURCHASER: City of West Memphis ATTN: Mayor 205 South Reddins West 1~lemphis, AR 72301 or to such other address as either party hereto shall from time to time designate to the other party by notice in writing as herein. provided. 10. General Provisions. No failure of any party to exercise any power given hereunder or to insist upon strict compliance with any obligation specified herein, and no custom or practice at variance with the terms hereof, shall constitute a waiver of such party's right to demand exact compliance with the terms hereof. This Agreement contains the entire agreement of the parties hereto, and no representations, inducements, promises or agreements, oral or otherwise, between any of the parties not embodied herein shall be of any force or effect. Any amendment to this Agreement shall not be binding upon any of the parties unless such agreement is in writing and executed by all parties hereto. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, executors, personal representatives, successors and assigns. The headings inserted at the beginning of each paragraph are for convenience only, and do not add to or subtract from the meaning of the contents of each paragraph. This Agreement shall be interpreted under the' laws of the State of Arkansas. 11. Survival of Provisions. All covenants, warranties, indemnities and agreements set forth in this Agreement shall survive the Closing of the transaction contemplated hereby and the execution and delivery of any and all deeds and other documents at any time executed or delivered under, pursuant to or by any reason of this Agreement, until such covenants, warranties, indemnities and agreements are fully observed, kept or performed. 12. ~everability. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of this Agreement or the application thereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby but rather shall. be enforced to the greatest extent permitted by law. 6 IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement as of the date and year set forth below. OTTIS CHADWICK, Seller DATE NAOMI CHADWICK, Seller DATE JAMES HOOD, Seller DATE SHARON J. HOOD, Seller DATE CITY OF WEST MEMPHIS, ARKANSAS, Purchaser Y' WILLIAM H. J NSON, Mayor DATE ATTEST: pgR, ,City Clerk a:`FLTLCH.~SE.DOC 7