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2414 ORDINANCE NO. A4 11-k AN ORDINANCE TO WAIVE COMPETIVE BIDDING AND APPROVE THE PURCHASE OF APPROXIMATELY 20 ACRES OF PROPERTY LOCATED AT 2100 PORT ROAD, WEST MEMPHIS ARKANSAS FOR ONE MILLION TWO HUNDRED THOUSAND DOLLARS ($1,200,000) THAT WILL BE USED AS A TRANSLOAD FACILITY AS PART OF THE TIGER IV GRANT THAT WAS AWARDED TO THE CITY, DECLARING AN EMERGENCY, AND FOR OTHER PURPOSES. WHEREAS, the City Council of the City of West Memphis has previously approved and authorized the acceptance of the TIGER IV Grant for $10,953,244.00; and WHEREAS, the acquisition of the property consisting of approximately 20 acres located at 2100 Port Road was a part of the grant project; and WHEREAS, the acquisition cost of One Million Two Hundred Thousand dollars ($1,200,000.00) is to be completely funded from the TIGER IV Grant with no local match requirement; and WHEREAS, it is not feasible or practical to obtain competitive bids for the acquisition of real property; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS, ARKANSAS, THAT: Section 1. Competitive bidding is hereby waived for the acquisition of the property consisting of approximately 20 acres located at 2100 Port Road for One Million Two Hundred Thousand dollars ($1,200,000.00), to be paid entirely from the TIGER IV Grant funds, and the acquisition of said property is hereby approved and accepted, subject to the final approval of the Mayor of West Memphis. Section 2. The Mayor is hereby authorized, subject to his approval of the final agreement, to execute the agreement on behalf of the City of West Memphis, Arkansas, and to take any and all other actions as may be necessary or required to acquire the property consisting of approximately 20 acres at 2100 Port Road. Section 3. All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of any such conflict. 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 acquire the real property consisting of approximately 20 acres located at 2100 Port Road in order to comply with the time constraints of the TIGER IV Grant and to permit the timely development of the project as contemplated in the TIGER IV Grant, 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 S. day of 3 -raNnBr- , , 2016. WILLIAM H. JOHNSON, Mayor ATTEST: PHILLIP PARA, City Clerk RECEIVED City Clerk's Office Date/Time q-ra-/c, rico . PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement" ) is made effective as of the day of , 2016 (the "Effective Date"), by and between the CITY OF WEST MEMPHIS, a body politic and corporate of the State of Arkansas, ("Purchaser") and TANDEM LEASING CORP., a Florida Corporation, ("Seller"). RECITALS A. Seller is the owner in fee simple of approximately twenty (20) acres of vacant land identified as Tax Parcel Number 1041125300 located in the City of West Memphis, Crittenden County, Arkansas (the "Tract"). B. Seller desires to sell to Purchaser, and Purchaser desires to purchase from Seller, the Property (as hereinafter defined), upon the terms and conditions hereafter provided. NOW, THEREFORE, the parties, in consideration of the sum of Ten Dollars ($10.00), receipt of which is hereby acknowledged, as well as the mutual promises and covenants herein contained, intending to be legally bound, do hereby agree as follows: ARTICLE 1 AGREEMENT TO PURCHASE AND SELL; PURCHASE PRICE 1.1 Property. Subject to the terms and conditions set forth in this Agreement and the Schedules and Exhibits attached hereto, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the following (collectively, the "Property"): (a) The Lot, together with all appurtenances, hereditaments, easements, oil, gas, mineral and similar rights, air or subsurface rights, adverse possession claims, reversionary rights, all right, title, interest, and benefit, if any, of Seller in and to adjacent streets, roads, alleys, and sewers (public or private, open or closed), and all other rights, approvals, privileges, and entitlements belonging to or running with the Lot (collectively, the"Land"); (b) Any buildings, improvements and fixtures located on the Land (collectively,the "Improvements" and together with the Land, the "Real Property"); and (c) All of Seller's right, title and interest in and to all intangible property pertaining to and used in connection with the ownership, construction, use and/or operation of the Real Property, including, without limitation, (i) all guaranties, warranties, permits, approvals, licenses,plans and specifications, and(ii)any and all water and water rights,wells,well rights and well permits, water and sewer taps, sanitary or storm sewer capacity or reservations and rights under utility agreements with any applicable governmental or quasi-governmental entities or agencies with respect to the providing of utility services to the Real Property, together with any and all impact fee or utility credits with respect thereto (collectively, the "Intangible Property"). 1.2 Purchase Price. In consideration of the sale of the Property to Purchaser,Purchaser shall pay to Seller the sum of One Million, Two Hundred Thousand DOLLARS ($1,200,000.00) (the "Purchase Price"), subject to adjustment and proration in accordance with this Agreement. The Purchase Price shall be paid by Purchaser as follows: (a) A deposit of Ten Percent (10%) of the Purchase Price, i.e., the sum of One Hundred Twenty Thousand Dollars ($120,000.00) (together with all interest earned thereon, the "Deposit") to be deposited by Purchaser with Escrow Agent (as hereinafter defined), by wire transfer of immediately available federal funds within two(2)business days after the expiration of the Due Diligence Period (as hereinafter defined); (b) The sum of Six Hundred Thousand Dollars ($600,000.00) within Ten (10) business days after the expiration of the Due Diligence Period (as hereinafter defined) to be deposited by Purchaser with Escrow Agent; and (c) The balance of the Purchase Price at Closing, by wire transfer of immediately available federal funds to an account designed in writing by Seller at least five (5) business days prior to Closing. 1.3 Deposit. The parties hereto direct Van Spear, NAI Saig Company ("Escrow Agent") to place the Deposit in an account in a federally insured bank or savings and loan association, which account will, at Purchaser's election, be an interest bearing account. Escrow Agent is not responsible for levies imposed by taxing authorities based upon the taxpayer identification number used to establish any interest bearing account. The Deposit shall be applied to the Purchase Price at Closing or otherwise released in accordance with this Agreement. The following provisions,together with other provisions of this Agreement which specifically concern the Deposit, shall govern disposition of the Deposit by Escrow Agent: (a) If either Seller or Purchaser believes that it is entitled to the Deposit,it shall make written demand therefor upon Escrow Agent. Escrow Agent shall promptly give the other party written notice of such demand, including a copy of such demand. The non-demanding party shall have the right to object to the delivery of the Deposit to the demanding party by giving Escrow Agent written notice of such objection at any time within five (5) business days after receipt of such notice from Escrow Agent, but not thereafter. Any such objection notice shall set forth the basis for objection to the delivery of the Deposit to the demanding party. Upon receipt of such objection notice, Escrow Agent shall promptly give notice of such objection, including a copy thereof, to the party making the demand for the Deposit. If Escrow Agent does not receive any objection notice from the non-demanding party within said period of five (5) business days, Escrow Agent shall promptly (i) deliver the Deposit to Purchaser, if Purchaser made the demand, or(ii) deliver the Deposit to Seller, if Seller made the demand. (b) If Escrow Agent shall have received a notice of objection from Seller or Purchaser in accordance with subsection (a) above, Escrow Agent shall continue to hold the Deposit until (i) Escrow Agent receives a notice signed by both Seller and Purchaser directing the disposition of the Deposit, in which case Escrow Agent shall deliver the Deposit in accordance with such direction, or (ii) litigation arises between Seller and Purchaser, in which event Escrow Agent may tender the Deposit with the court in which such litigation is pending. In the event of a dispute among any one or more of Purchaser, Seller,and Escrow Agent as to the proper disposition by Escrow Agent of all or any portion of the Deposit,Purchaser and Seller authorize Escrow Agent 2 to commence an action in the form of interpleader by depositing the Deposit into a court of competent jurisdiction which shall determine the respective rights of Purchaser and Seller. Purchaser and Seller agree to pay and share equally all costs, damages,judgments and expenses, including reasonable attorneys' fees, suffered or incurred by Escrow Agent in connection with or arising out of this Agreement, including a suit in interpleader brought by Escrow Agent upon the advice of counsel to Escrow Agent; In the event of an action between Purchaser and Seller, the prevailing party shall be entitled to reimbursement of any such sums from the non-prevailing party. Purchaser and Seller hereby indemnify and hold harmless Escrow Agent from and against any and all liability which it may incur in connection with any and all actions taken by it in good faith pursuant to this Agreement except for Escrow Agent's own willful default or gross negligence. (c) Escrow Agent shall act as an accommodation party to Purchaser and Seller. Escrow Agent may act upon any instrument or other writing believed by it in good faith to be genuine and to be signed and presented by the proper person; and Escrow Agent shall not be liable in connection with the performance of any duties imposed upon Escrow Agent by the provisions of this Agreement, except for Escrow Agent's own willful default or gross negligence. Escrow Agent, acting as escrow agent, shall have no duties or responsibilities except those set forth in this Agreement and under the laws of the State of Arkansas. Escrow Agent shall not be bound by any modification of this Agreement unless the same is in writing and signed by both Purchaser and Seller; if the modification affects the duties of Escrow Agent hereunder, the Escrow Agent shall have given written consent to such modification. ARTICLE 2 DUE DILIGENCE 2.1 Right of Inspection. (a) During the period beginning on the Effective Date and ending at 5:00 p.m., CST, on the date which is sixty (60) days after the Effective Date (the "Due Diligence Period"), Purchaser shall have the right, at Purchaser's expense, to inspect and investigate the Property, including, without limitation, title, environmental condition, physical condition and suitability of the Property for Purchaser's development,and to examine any files in the possession and/or control of Seller relating to the Property, including, without limitation, title insurance policies, surveys, environmental studies, permits and approvals. Seller shall cooperate, and cause its agents and representatives to cooperate, with Purchaser to facilitate Purchaser's inspections and investigations, including providing Purchaser with access to the Property. Purchaser shall repair any damage to the Property directly caused by its physical inspections and/or tests; provided, however, Purchaser shall have no obligation or liability to remediate any environmental condition existing on or at the Property. Purchaser agrees to indemnify against and hold Seller harmless from any claim for liabilities, costs or expenses arising out of any physical inspections and/or tests of the Property by Purchaser or its agents or contractors, which obligation shall survive any termination of this Agreement. Purchaser agrees (i) that prior to entering the Property to conduct any inspection, Purchaser shall maintain, or shall cause the contractors and agents accessing the Property to maintain, commercial general liability insurance in the minimum amount of One Million Dollars($1,000,000.00),and(ii)to keep the Property free from all liens and encumbrances arising from the activities of Purchaser, its contractors or agents. 3 (b) Seller represents and warrants to Purchaser that Seller has delivered to Purchaser for Purchaser's inspection, on or before the Effective Date, true and complete copies of any land surveys, title insurance policies, and any environmental, structural or other written inspection reports or assessments of the Property in Seller's possession or control. Following the date hereof, Seller shall deliver to Purchaser any additional land surveys, title insurance policies, and any environmental, structural or other written inspection reports or assessments of the Property that come into Seller's control or possession within five (5)business days of receipt thereof or any other documents, reports or assessments reasonably requested by Purchaser within five (5) business days of request. 2.2 Right of Termination. (a) Seller agrees that Purchaser shall have the right to terminate this Agreement, based upon any unsatisfactory results of Purchaser's inspections pursuant to Section 2.1,by giving notice thereof to Seller prior to the expiration of the Due Diligence Period. If Purchaser gives such notice of termination prior to the expiration of the Due Diligence Period, this Agreement shall terminate, and thereafter neither party hereto shall have any further rights, obligations or liabilities hereunder except those expressly stated to survive termination of this Agreement. If Purchaser fails to terminate this Agreement pursuant to this Section 2.2 prior to the expiration of the Due Diligence Period, Purchaser shall no longer have any right to terminate this Agreement under this Section 2.2. (b) Purchaser shall have the unilateral right to shorten the Due Diligence Period by giving notice to Seller at any time prior to the expiration of the Due Diligence Period. If Purchaser gives such notice, the last day of the Due Diligence Period for purposes of this Agreement shall be the date set forth in such notice. ARTICLE 3 TITLE AND SURVEY 3.1 Title Commitment; Survey. During the Due Diligence Period, Purchaser shall obtain from a title insurance company selected by Seller (the "Title Company"), at Seller's expense,a title insurance commitment(the"Title Commitment")covering the Land. During Due Diligence Period, Purchaser may obtain,at Purchaser's expense,a survey of the Real Property(the "Survey"). 3.2 Title Objections; Cure of Title Objections. (a) Purchaser shall have until the expiration of the Due Diligence Period to notify Seller of such objections as Purchaser may have to anything contained in the Title Commitment or the Survey ("Obiections"). Any item contained in the Title Commitment or any matter shown on the Survey to which Purchaser does not so object prior to expiration of the Due Diligence Period shall be deemed a Permitted Exception (as hereinafter defined). In the event Purchaser shall notify Seller of any Objections prior to expiration of the Due Diligence Period, Seller shall have the right, but not the obligation, to elect to attempt to cure such Objections. Within five (5) business days after receipt of Purchaser's notice of Objections, Seller shall notify Purchaser whether Seller elects to attempt to cure such Objections. If Seller fails to give Purchaser 4 such notice of election, then Seller shall be deemed to have elected not to attempt to cure the Objections. If Seller elects to cure, Seller shall have until the date of Closing to remove, satisfy or cure the same. If Seller elects not to cure any Objections specified in Purchaser's notice,Purchaser shall have the following options: (i)to accept a conveyance of the Property subject to the Permitted Exceptions, specifically including Objections which Seller elected not to cure, and without reduction of the Purchase Price; or (ii) to terminate this Agreement by sending notice thereof to Seller within five(5)business days after Seller's election notice has been given(or deemed given), whereupon this Agreement shall terminate, the Deposit (if then on deposit with Escrow Agent) shall be returned to Purchaser,and thereafter neither party shall have any further rights, obligations or liabilities hereunder except those expressly stated to survive termination of this Agreement. If Purchaser does not so timely notify Seller within such five (5)business day period,then Purchaser shall be deemed to have elected to accept the conveyance under clause (i) of the preceding sentence. If Seller notifies Purchaser that Seller intends to cure any Objection,and thereafter Seller fails to effect a cure, such failure shall constitute a default by Seller under this Agreement, and Purchaser shall be entitled to exercise its remedies under Section 7.2. (b) Whether or not Purchaser shall have furnished Seller any notice of Objections pursuant to subsection (a), Purchaser may, within five (5) business days of receipt of notice thereof, notify Seller of any Objections to matters raised by the Title Company or the surveyor which were not disclosed in the original Title Commitment or Survey. With respect to any such Objections, Seller shall have the same option to cure and Purchaser shall have the same option to accept title subject to such Objections or to terminate this Agreement as set forth in subsection (a); provided, however, if the existence of such title or survey matters otherwise constitutes a default by Seller under this Agreement, Purchaser shall be entitled to exercise its remedies under Section 7.2. (c) Notwithstanding anything to the contrary in this Agreement, Seller shall be obligated to cure liens against the Property evidencing mortgages, security deeds, judgments, mechanics and materialmen's liens, tax liens and other monetary encumbrances which can be removed by payment of liquidated amounts, and any liens or encumbrances created by Seller on or after the Effective Date ("Required Cure Items"), regardless of amount and regardless of whether Purchaser objects to such Required Cure Items. (d) "Permitted Exceptions" means (i) the lien of all real estate taxes (if any) not yet due and payable as of the date of Closing, subject to adjustment as provided in this Agreement; (ii) all matters, whether or not of record, that arise out of the actions of Purchaser or its agents or contractors; and(iii)items appearing in the Title Commitment(or any update thereto) or shown on the Survey(or any update thereto)and, in either case, not objected to by Purchaser or waived or deemed waived by Purchaser in accordance with Sections 3.2(a) or(b) hereof. 3.3 Conveyance of Title. At the Closing, Seller shall convey to Purchaser marketable and insurable fee simple title to the Property, subject only to the Permitted Exceptions. 3.4 Costs. The costs of the Title Commitment, the cost of recording releases of any Required Cure Items, and any other instruments that are not Permitted Exceptions shall be borne by Seller. The costs of surveys and any premiums for title insurance obtained for Purchaser or any lender of Purchaser shall be borne by Purchaser. 5 ARTICLE 4 CONDITIONS TO CLOSING 4.1 Conditions for Purchaser. Purchaser shall not be obligated to close this transaction until all of the following requirements and conditions for the Closing have been satisfied or, in the sole judgment of Purchaser, expressly waived in writing by Purchaser: (a) As of the date of this Agreement and the date of Closing, all representations and warranties of Seller contained herein shall be true and correct in all material respects. (b) The performance by Seller, in all material respects, of each and every undertaking, covenant and agreement to be performed by Seller hereunder. (c) Title to the Property shall be in the condition required by this Agreement, and the Title Company shall have irrevocably committed and agreed to issue to Purchaser an owner's title insurance policy, insuring Purchaser's fee simple interest in the Property free and clear of liens, claims and encumbrances other than the Permitted Exceptions, and otherwise in form, substance and amount acceptable to Purchaser. (d) Purchaser's receipt of all written agreements, commitments, arrangements and other evidence satisfactory to Purchaser in Purchaser's sole discretion to the effect that, at the boundary of the Lot contiguous to a public street, (i) public sewer treatment and capacity is immediately available on a permanent basis for the effluent from the Property as intended to be developed, (ii) sufficient public water is immediately available to service the improvements intended to be developed on the Property, and (iii) electric, gas and other utilities are available at the Property. (e) Purchaser has determined, in Purchaser's sole discretion, that streams and existing drainage features at the Property can be relocated from their respective current locations. (f) Purchaser has determined, in Purchaser's sole discretion, that Purchaser's intended use of, and operation at, the Property will not violate any covenant or restriction encumbering the Property. (g) No lawsuit, appeal or other action shall have been filed by any party, directly or indirectly, involving the Property, including without limitation, any lawsuit, appeal or other action for the purpose of challenging, contesting or seeking to prohibit, restrain, enjoin or delay any Approvals for Purchaser's development or use of the Property. (h) There shall exist no moratorium or other action or directive by any governmental authority which would prohibit, restrain, enjoin or delay Purchaser from constructing and using improvements on the Property in accordance with Purchaser's plans. (i) Funding for the purchase which is being provided by the Federal Department of Transportation ("DOT") through the Transportation Investment Generating 6 Economic Recovery "TIGER"Discretionary Grant Program is approved by all Federal, State and local government bodies and funded. If any of the conditions precedent set forth in this Section 4.1 are not satisfied, deemed satisfied or waived by Purchaser at or prior to Closing, then Purchaser may elect to terminate this Agreement, in which event the Deposit (if then on deposit with Escrow Agent) shall be returned to Purchaser and the parties shall have no further liability or obligation hereunder except those stated to survive termination of this Agreement; provided, however, that if the failure of the condition constitutes a default by Seller under this Agreement, Section 7.2 shall apply. 4.2 Conditions for Seller. Seller shall not be obligated to close this transaction until all of the following requirements and conditions for the Closing have been satisfied or, in Seller's sole judgment, expressly waived in writing by Seller: (a) Representations and Warranties. As of the date of this Agreement and the date of Closing, all representations and warranties of Purchaser contained herein shall be true and correct in all material respects. (b) Performance by Purchaser. The performance by Purchaser, in all material respects, of each and every undertaking, covenant and agreement to be performed by Purchaser hereunder. If any of the conditions precedent set forth in this Section 4.2 are not satisfied, deemed satisfied or waived by Seller at or prior to Closing,then Seller may elect to terminate this Agreement,in which event the Deposit(if then on deposit with Escrow Agent)shall be delivered to Seller and the parties shall have no further liability or obligation hereunder except those stated to survive termination of this Agreement; provided, however, that if the failure of the condition constitutes a default by Purchaser under this Agreement, Section 7.1 shall apply. ARTICLE 5 CLOSING 5.1 Closing. The consummation of the transactions contemplated hereby (the "Closing") shall be held through escrow deposits with the Title Company on the date which is ten (10) business days after expiration of the Due Diligence Period, or such earlier date as may be selected by Purchaser upon not less than three (3) business days' prior notice from Purchaser to Seller; provided that Purchaser may elect to extend the date of Closing for up to thirty (30) days in the aggregate by delivering notice to Seller at any time prior to the then-scheduled date for Closing. At Closing, Seller and Purchaser shall perform the obligations set forth in, respectively, Section 5.2 and Section 5.3, the performance of which obligations shall be concurrent conditions. 5.2 Seller's Deliveries in Escrow. At the Closing, Seller shall deliver, or cause to be delivered, to Purchaser the following documents: (a) A general warranty deed in the form attached hereto as Exhibit A (the "Deed"), executed by Seller; 7 (b) An affidavit duly executed by Seller stating that Seller is not a "foreign person" as defined in the Federal Foreign Investment in Real Property Tax Act of 1980 and the 1986 Tax Reform Act; (c) A closing statement in form and substance consistent with this Agreement (the "Closing Statement"), executed by Seller; (d) Such affidavits and other indemnities or undertakings executed by Seller sufficient for the Title Company to eliminate from the owner's title policy and any lender's title policy the "gap" exception and the standard printed exceptions; (e) Evidence of existence, organization, and authority of Seller and the authority of the person executing documents on behalf of Seller, reasonably satisfactory to Purchaser and the Title Company; and (0 Such additional documents as Purchaser or the Title Company may reasonably require for the proper consummation of the transactions contemplated by this Agreement. 5.3 Purchaser's Deliveries in Escrow. At the Closing, Purchaser shall deliver, or cause to be delivered, to Seller the following: (a) The Purchase Price; (b) The Closing Statement, executed by Purchaser; (c) Such additional documents as Seller or the Title Company may reasonably require for the proper consummation of the transactions contemplated by this Agreement. 5.4 Prorations; Taxes. (a) The sale contemplated herein is exempt from transfer tax pursuant to Ark. Code Ann. Sec. 26-60-102(1). (b) Real estate taxes, water and sewer rentals, and gas, electricity, and other public utility company charges, if any, shall be apportioned on a per diem basis, with relation to the fiscal year or billing period, as applicable, of the levying authority. If accurate prorations and other adjustments cannot be made at Closing because current bills or statements are not obtainable (as, for example, utility and real property tax bills), the parties shall prorate on the best available information(which, in the case of real property taxes, shall mean the most recent real property tax bill), subject to adjustment on receipt of the final bill or statement. Both Seller and Purchaser shall use good faith efforts to resolve such post-Closing prorations and other adjustments as expeditiously as possible. (c) All apportionments under this Agreement, if any, shall be computed on a daily basis utilizing a 365-day year. For the purpose of apportionments, Closing shall be deemed to have occurred at 11:59 p.m. on the day preceding Closing so that Purchaser shall be deemed to own the Property on the day of Closing. 8 (d) All other costs and expenses in connection with the transactions contemplated by this Agreement not mentioned above or elsewhere in this Agreement shall be borne by Seller and Purchaser in the manner in which such costs and expenses are customarily allocated between the parties in commercial real estate sales/purchases in Crittenden County, Arkansas. (e) The obligations of the parties under this Section 5.4 shall survive the Closing or any earlier termination of this Agreement. ARTICLE 6 REPRESENTATIONS, WARRANTIES AND COVENANTS 6.1 Seller's Representations and Warranties. Seller represents and warrants to Purchaser, both as of the Effective Date and as of the date of Closing, as follows: (a) Seller is a Florida corporation in good standing. This Agreement and all agreements, instruments and documents herein provided to be executed by Seller have been or, as applicable, will be duly executed and delivered by Seller and constitutes or will constitute valid and binding obligations enforceable against Seller in accordance with their terms. Neither the execution and delivery of this Agreement and all documents contemplated hereunder to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will conflict with, or result in a breach of,the terms, conditions or provisions of, or constitute a default under, any agreement to which Seller is a party or by which Seller or the Property is otherwise bound. (b) Seller is the sole legal owner of good and marketable fee simple interest in and to the Tract. (c) There is no action or proceeding pending or, to Seller's knowledge, threatened against: (i) Seller which would affect Seller's ability to execute, deliver or perform this Agreement and consummate the transactions contemplated hereby; or(ii) the Property. (d) There are no unpaid bills or claims that may give rise to a lien against the Property. (e) Seller has received no notice,and Seller has no knowledge,that the Property violates any applicable laws, ordinances, rules, regulations or requirements of any governmental authority or instrumentality having jurisdiction over the Premises. (f) Except as contemplated by this Agreement, there are no proceedings pending or, to Seller's knowledge,threatened,to challenge, change or redefine the present zoning classification of all or any portion of the Property. Except as contemplated by this Agreement, Seller has not entered into any agreement with or application to any governmental authority with respect to any zoning modification, variance, exception, subdivision, platting or other similar matter affecting the Property. (g) Seller has no knowledge of any pending improvements, liens, special assessments, impositions or increases in assessed valuations to be made against the Property by 9 any governmental authority. Seller has not filed, and has not retained anyone to file, notices of protests against, or to commence action to review, real property tax assessments against the Property, which protests or actions are still unresolved. (h) No petition in bankruptcy (voluntary or, to Seller's knowledge, otherwise), assignment for the benefit of creditors or petition seeking reorganization or arrangement or other action under federal or state bankruptcy or insolvency laws is pending against or contemplated by Seller. (i) Seller has no knowledge of any condemnation, eminent domain or similar proceedings pending or, threatened to be initiated with regard to the Property. (j) There are no leases or other agreements in effect with respect to any portion of the Property, whether written or oral, that permit possession or occupancy of any portion of the Property by any person, firm, corporation, trust or other entity, nor are there any adverse or other parties in possession of or occupying all or any portion of the Property. Except for Purchaser's rights under this Agreement, no person, firm, corporation, trust or other entity has any right or option to acquire the Property or any part thereof. (k) Except as may be approved by Purchaser in its sole discretion in connection with any Approvals, there are no commitments or agreements which would require Purchaser to pay any money or perform any obligation or which would otherwise affect the ownership or development of the Property by Purchaser. (I) Seller has no knowledge of any adverse or nonexclusive claim of right, action, object, or impediment which would prevent the property from having now and/or in the future uninterrupted, direct and free vehicular access, ingress and egress rights to and from a dedicated public roadway. (m) Seller has no knowledge of any adverse fact relating to the physical condition of the Property for commercial construction purposes that is not readily observable or has not been specifically disclosed in writing to Purchaser, including by way of example but not limitation landfills, sink holes, fault lines, other geological conditions, or adverse soil conditions. (n) Seller has no knowledge of any archaeological, anthropological, or historical finds, objects or any endangered or threatened species in, on, or about the Property. To Seller's knowledge, no portion of the Property constitutes a "critical habitat" as such term is defined in the Endangered Species Act of 1973, as amended. 6.2 Purchaser's Representations and Warranties. Purchaser represents and warrants to Seller, both as of the Effective Date and as of the date of Closing, as follows: (a) Organization and Authority. Purchaser (i) is a body politic and corporate of the State of Arkansas and has the right and all necessary power and authority to enter into and deliver this Agreement, consummate the transactions contemplated herein and fulfill all of its obligations hereunder and under all documents contemplated hereunder to be executed by Purchaser. This Agreement and all documents contemplated hereunder to be executed by Purchaser, have been duly authorized by all governmental corporate or other required action on 10 the part of Purchaser and are the valid and legally binding obligation of Purchaser, enforceable in accordance with their respective terms. Neither the execution and delivery of this Agreement and all documents contemplated hereunder to be executed by Purchaser, nor the performance of the obligations of Purchaser hereunder or thereunder will: (i) violate any of the provisions of its founding and governing documents (such as charters, codes, constitutions, laws, articles of incorporation or bylaws); or (ii) conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any agreement to which Purchaser is a party or by which Purchaser is otherwise bound. (b) Pending Actions. There is no action or proceeding pending or, to Purchaser's knowledge, threatened against Purchaser which would affect Purchaser's ability to execute,deliver or perform this Agreement and consummate the transactions contemplated hereby. (c) OFAC. Seller is not a person with whom Purchaser is restricted from doing business under the regulations of the Office of Foreign Asset Control("OFAC")of the Department of the Treasury of the United States of America (including those persons named on OFAC's specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) or other governmental actions and is not and shall not knowingly engage in any dealings or transactions or act, directly or indirectly, for or on behalf of any such persons or otherwise be associated with any such persons. 6.3 Covenants. Between the Effective Date and Closing, Seller shall: (a) Operate and maintain the Property in its present condition and in compliance with all applicable zoning ordinances and any other acts, ordinances or regulations affecting the use and improvement thereof; (b) Not permit any person, firm, corporation, trust or other entity to use or occupy the Property for farming, gardening or other agricultural purposes; (c) Keep the Property insured up to and including the date of Closing against fire and other hazards covered by extended coverage endorsement and comprehensive public liability insurance against claims for bodily injury, death and property damage occurring in, on or about the Property with such insurance at the same coverage levels and amounts as in effect on the Effective Date; (d) Not make, or permit or cause to be made, any alterations, improvements or additions to the Property without Purchaser's prior written consent, which may be withheld in Purchaser's sole discretion; (e) Not mortgage or further encumber the Property or execute any deeds, easements, covenants, conditions, restrictions or other matters affecting title to the Property; (0 Not market,or permit or cause to be marketed,the Property for sale or lease, nor negotiate, solicit or accept or permit or cause the negotiation, solicitation or acceptance of any offers for the sale or lease of the Property, whether or not binding; 11 (g) Not use, manufacture, store, generate, handle, or dispose of any Hazardous Substances, or use or permit the Tract to be used for such purposes, or emit, release or discharge any such Hazardous Substances into the air, soil, surface water or groundwater comprising the Tract; (h) Not enter into any lease or other agreement or contract affecting the Property or any part thereof; (i) Not take any action or omit to take any action, which action or omission would reasonably be expected to result in any of the representations and warranties of Seller failing in any material respect to be true and correct as of the date of Closing; and (j) Promptly deliver to Purchaser copies of all notices received by Seller affecting the Property, including without limitation, any pending zoning changes or amendments, notices of violations affecting the Property and notices of pending or threatened condemnation of the Property or any roads adjacent thereto. 6.4 Approvals. (a) The term "Approvals" shall mean any and all permits, approvals, licenses, consents, agreements and the like necessary or desirable for Purchaser's intended development, construction, use and operation of the Property, and shall include, without limitation: (i) site plan approvals; (ii) sanitary sewer, drainage and other utility permits (including without limitation, sewer connection and extension permits); (iii) zoning permits, special or conditional use permits, variances and/or rezoning approvals (including, without limitation, any necessary variances permitting outdoor storage); (iv) environmental and wetland certifications, approvals, licenses, permits and the like, whether local, state or federal (including, without limitation, wetland mitigation approvals, relocation approvals, and water management district approvals, if applicable); (v) access permits, including, without limitation, any required curb cut permits or median break permits; (vi) sign permits, approvals and/or variances for Purchaser's exterior building,directional,and pylon signs; and(vii) any and all approvals required under any restrictive covenants or other encumbrances applicable to the Property. (b) Commencing on the Effective Date, Purchaser shall have the right to apply for and pursue Approvals. All conditions and restrictions imposed by applicable authorities as prerequisites or conditions precedent or subsequent to the Approvals (including, without limitation,the payment of impact fees or construction of on-site or off-site improvements) shall be subject to Purchaser's approval and acceptance and Purchaser shall not be required to accept any Approvals unless it agrees, in its sole discretion, to accept such conditions and restrictions. Purchaser shall have final approval over all site plans, water management plans, conditions, and studies submitted to governmental entities in connection with the Approvals. (c) Seller agrees to cooperate with Purchaser's efforts to obtain the Approvals. Seller agrees that it will, at Purchaser's request, sign all applications for Approvals and shall not oppose any of Purchaser's efforts to obtain the Approvals. 12 ARTICLE 7 DEFAULT REMEDIES 7.1 Purchaser Default. If: (i) Purchaser is in default of any of its obligations hereunder; (ii) any of Purchaser's representations or warranties are untrue in any material respect; or(iii) the Closing otherwise fails to occur by reason of Purchaser's failure or refusal to perform its obligations hereunder in a prompt and timely manner, then Seller may elect as Seller's sole and exclusive remedy, either to: (a) terminate this Agreement by notice to Purchaser and receive the Deposit (if then on deposit with Escrow Agent) as liquidated damages for the breach of this Agreement,it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Deposit is a reasonable estimate thereof; or (b) waive the default and proceed to Closing. If this Agreement is so terminated, thereafter, neither party shall have any further rights or obligations under this Agreement, except those expressly stated to survive termination. 7.2 Seller Default. If: (i) Seller is in default of any of its obligations hereunder; (ii) any of Seller's representations or warranties are untrue in any material respect; or (iii) the Closing otherwise fails to occur by reason of Seller's failure or refusal to perform its obligations hereunder in a prompt and timely manner, then Purchaser shall have the right to elect, in its sole discretion, either to: (a) terminate this Agreement, in which event the Deposit(if then on deposit with Escrow Agent) shall be returned to Purchaser and thereafter neither party shall have any further rights or obligations under this Agreement, except those expressly stated to survive termination, (b) waive the default and proceed to Closing; (c) seek specific performance of this Agreement by Seller; provided that any action by Purchaser for specific performance must be filed,if at all,within ninety (90) days after Seller's default; and/or(d) exercise any and all other rights and remedies available at law or in equity. ARTICLE 8 CONDEMNATION AND CASUALTY 8.1 Condemnation. Seller shall immediately notify Purchaser of any pending or threatened condemnation relating to the Property of which Seller receives notice or obtains knowledge. Purchaser may, at its option, by notice to Seller given within fifteen (15) business days after Purchaser is notified of such actual or possible proceedings (but before the Closing) terminate this Agreement, whereupon the Deposit (if then on deposit with Escrow Agent) shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those stated to survive termination of this Agreement. If Purchaser does not elect to terminate this Agreement as aforesaid, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, provided, however, that (a) Seller shall not take any action with respect to such condemnation, including settlement or compromise of any claims, without Purchaser's prior consent, which may be withheld in Purchaser's sole discretion, and (b) Seller shall, at Closing, (i) assign and remit to Purchaser, and Purchaser shall be entitled to receive and keep, the proceeds of any award or other proceeds of such taking which may have been collected by Seller, or (ii) if no award or other proceeds shall have been collected,deliver to Purchaser an assignment of Seller's right to any such award or other proceeds which may be payable to Seller as a result of such taking. 13 8.2 Casualty. Risk of loss to the Property from fire or other casualty shall be borne by Seller until Closing. Seller shall immediately notify Purchaser of any fire or other casualty affecting the Property. Purchaser may,at its option,by written notice to Seller given within fifteen (15)business days after Purchaser is notified of such fire or other casualty(but before the Closing) terminate this Agreement, whereupon the Deposit (if then on deposit with Escrow Agent) shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those stated to survive termination of this Agreement. If Purchaser does not elect to terminate this Agreement as aforesaid, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, provided, however, that (a) Seller shall not take any action with respect to such fire or other casualty, including settlement or compromise of any insurance claims, without Purchaser's prior consent, which may be withheld in Purchaser's sole discretion, and (b) Seller shall, at Closing, assign and remit to Purchaser, and Purchaser shall have the right to make a claim for and to retain, all insurance proceeds with respect to such fire or other casualty, and Seller shall credit Purchaser any deductible due in connection with such claim at Closing. ARTICLE 9 MISCELLANEOUS 9.1 Commissions. Seller and Purchaser acknowledge that they have worked exclusively with Van Spear, SIOR, CRE of NAI Saig Company regarding the sale or acquisition of the Property. Van Spear, SIOR, CRE of NAI Saig Company will receive a commission of Six percent (6%) from Seller's proceeds of sale. Purchaser, (on the one hand) and Seller, (on the other hand) each agrees to indemnify, defend and hold the other harmless of, from and against any damages, costs, claims, losses or liabilities whatsoever (including reasonable attorneys' fees) arising from any breach by the foregoing respective representation and warranty by Purchaser or Seller. This Section 9.1 shall survive the Closing or any earlier termination of this Agreement. 9.2 Parties Bound;Assignment. Purchaser shall have the right to assign this Agreement provided that Purchaser shall give notice to Seller of such assignment at least ten (10) business days prior to the Closing. Seller shall not have the right to assign this Agreement without the prior written consent of Purchaser, and any such assignment or attempted assignment without such consent shall be void and shall constitute a default by Seller under this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. 9.3 Construction; Invalidity; Waiver. Headings at the beginning of each Section in the Agreement are solely for the convenience of the parties and are not a part of this Agreement. Whenever required by the context of this Agreement and the exhibits attached hereto, the singular shall include the plural and the masculine shall include the feminine and vice versa. The parties acknowledge that each party and each party's counsel have reviewed and revised this Agreement and that the normal rule of construction (i.e., that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any exhibits or amendments hereto. If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be deemed valid and operative, and effect shall be given to the intent manifested by the portion held invalid or inoperative. The failure by either party to enforce against the other any term or provision of this Agreement shall 14 not be deemed a waiver of such party's right to enforce against the other party the same or any other such term or provision. 9.4 Provisions Survive. The provisions of this Agreement and the documents to be delivered in connection herewith shall survive the Closing and shall not be merged into the instruments of Closing. 9.5 Governing Law. This Agreement and said other instruments shall, in all respects, be governed, construed, applied and enforced in accordance with the state in which the Property is located, without regard for principles of conflicts of law. 9.6 No Third Party Beneficiary. This Agreement is not intended to give or confer any benefits, rights, privileges, claims, actions or remedies to any person or entity as a third party beneficiary, decree, or otherwise. 9.7 Entirety and Amendments. This Agreement (including the Exhibits attached hereto)embodies the entire agreement between the parties and supersedes all prior agreements and understandings relating to the Property. This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought. 9.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement. To facilitate execution of this Agreement, the parties may execute and exchange by facsimile or email counterparts of the signature pages. 9.9 Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by Seller to Purchaser at the Closing, Seller agrees to perform,execute and/or deliver or cause to be delivered,executed and/or delivered, but without any obligation to incur any additional liability or expense, after the Closing any and all further acts, deeds and assurances as may be reasonably necessary to consummate the transactions contemplated hereby and/or to further perfect and deliver to Purchaser the conveyance of the Property and all rights related thereto. 9.10 Time. Time is of the essence in the performance of each and every term, condition and covenant contained in this Agreement. Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a business day, in which event the period shall run until the end of the next business day. For purposes of this Agreement, a"business day" shall be a day which is not a Saturday, Sunday or legal holiday in the State of Arkansas. 9.11 U. S. Currency Required. All sums referred to herein shall be in currency of the United States of America. 9.12 Notices. All notices from either party required or permitted hereunder shall be in writing and shall be served on the parties at the following address: 15 If to Seller: Tandem leasing Corporation 3901 NW 115 Avenue Miami, FL 33178 Facsimile: If to Purchaser: West Memphis City Attorney P.O. Box 1728 West Memphis, AR 72303 Attn: City Attorney Facsimile: (870) 732-7514 Any such notices shall be sent by(i)United States registered or certified mail,with postage prepaid and domestic Return, Receipt requested (which shall be deemed given two (2) business days after deposit); (ii) nationally recognized overnight courier for next business day delivery (which shall be deemed given on the date of deposit with the courier); (iii) hand delivered (which shall be deemed given when delivered); or(iv) facsimile transmission with a hard copy sent on the same day by a nationally recognized overnight courier for next business day delivery (which shall be deemed given on the date of the facsimile transmission). The above addresses may be changed by notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. (WAIVER OF TRIAL BY JURY. PURCHASER AND SELLER EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT. [SIGNATURE PAGE FOLLOWS] 16 IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed this Agreement under seal on the day and year first above written. PURCHASER: CITY OF WEST MEMPHIS, ARKANSAS, ATTEST: a body politic and corporate of the State of Arkansas By: Name: Title: SELLER: ATTEST: TANDEM LEASING CORP.,A Florida corporation By: Name: Title: 17 EXHIBIT A FORM OF DEED This Instrument Prepared By: WARRANTY DEED KNOW ALL BY THESE PRESENTS: THAT Tandem Leasing Corp., a Florida Corporation, ("Grantor"), for and in consideration of the payment of Ten Dollars ($10,00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, does hereby grant, bargain, sell and convey unto , The City of West Memphis, a body politic and corporate of the State of Arkansas ("Grantee"), and unto its successors and assigns forever, the real property located in the City of West Memphis, Crittenden County, Arkansas more particularly described on Exhibit A attached hereto, together with any and all improvements thereon, together with all rights, tenements, hereditaments, easements, appendages, privileges and appurtenances pertaining thereto, (collectively, the "Premises"). TO HAVE AND TO HOLD the same unto the said Grantee and unto Grantee's successors and assigns forever;provided, however, the Premises are conveyed by Grantor subject to those matters set forth on the attached Exhibit B (the "Permitted Encumbrances"). Grantor hereby covenants with Grantee that it will forever warrant and defend the title to the Premises against all lawful claims whatsoever, subject to the Permitted Encumbrances. IN WITNESS WHEREOF, this instrument is executed by Grantor as of 20 TANDEM LEASING CORP., A Florida Corporation By: Authorized Representative 18 ACKNOWLEDGMENT STATE OF FLORIDA ) ) ss: COUNTY OF ) On this day, before me, the undersigned, a Notary Public, duly commissioned, qualified and acting, within and for said County and State, appeared in person the within named and to me personally well known, who stated he/she is the of Tandem Leasing Corp., A Florida corporation, and who executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN WITNESS WHEREOF, I have hereunto set my hand and official seal this day of , 20 My commission expires: Notary Public (SEAL) I certify under penalty of perjury that documentary stamps or a documentary symbol in the amount required by law have been placed on this instrument. Exempt or no consideration paid if none shown. GRANTEE or AGENT: Address: All property tax statements should be sent to Grantee at the following address: 19